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Synopsis

The Supreme Court has said every member of an unlawful assembly is to be held guilty of the offence committed by any member of that assembly in prosecution of the common object and the factum of causing injury or not causing injury would not be relevant.

A bench of Justices Abhay S Oka and Ujjal Bhuyan said no overt act is required to be imputed to a particular person when the charge is under Section 149 IPC; the presence of the accused as part of the unlawful assembly is sufficient for conviction, relying upon Yunis alias Kariya Vs State of MP (2003).

The court upheld the conviction and sentence of life term imposed on Nitya Nand, noting that it was clear from the evidence of two prosecution witnesses that the appellant was part of the unlawful assembly that committed the murder.

According to the prosecution, the appellant along with his brothers and father had killed his uncle Satya Narain on September 8, 1992 in Etah district after being enraged over his other issue-less uncle executing a will in favor of the deceased and his sons.

The trial court convicted the appellant and his brothers Munna Lal, Raju and Uchchav alias Pappu under Sections 148 and 302/149. It also held the appellant's father Sree Dev under Sections 147 and 302/149 IPC. All the accused were sentenced to life imprisonment.

The high court upheld the conviction and sentence and dismissed an appeal in the case.

The appellant's counsel contended it was alleged he fired from country-made pistol to scare away others who tried to rescue the deceased. 

Neither were there any firearm injuries on the person of the deceased nor on anyone else. That apart, there was no recovery of any country-made pistol or empty cartridge from the crime scene or from anywhere else, he contended.

He also pointed out that Laxmi Narain, the uncle whose act of gifting properties allegedly led to the incident, was not examined as a prosecution witness, though he was said to be present on the occasion. The complaint scribed by a witness Kuldeep Kumar Tiwari was not examined.

"Such glaring omission has cast uncertain shadows over the prosecution case. Omission to examine Tiwari as a prosecution witness has completely punctured the prosecution case because it was he who had written the FIR lodged by the informant besides being an eyewitness," the counsel said.

The counsel said in a criminal trial, the conviction must be based on hard evidence and not on mere suspicion. "Even if there is an iota of doubt as to the culpability of an accused, as in the present case, he has to be given the benefit of the doubt," he said.

The UP government counsel, on the opposite, argued that the conviction and sentence of the appellant were fully justified. He said it was a case of direct evidence that clearly established the involvement of the appellant in the killing of Satya Narain. 

Citing the unflinching evidence of two prosecution witnesses, the state counsel said non-recovery of the country-made pistol or any cartridge fired therefrom could not be fatal to the prosecution case.

"The very act of the appellant in firing from his country made pistol to enable the accused persons to escape is clearly an overt act whereby he became part of the unlawful assembly with a common object to cause the death of the deceased. The evidence on record clearly provides that appellant was part of the unlawful assembly having the common object to kill the deceased," the counsel said.

The state counsel also said the post-incident conduct of the appellant was also a significant factor. Laxmi Narain, the uncle, who could have been an important eyewitness, was killed on October 25, 1993. In that case, appellant along with others were named as accused. 

The court noted the ocular evidence supported by the medical evidence clearly established that it was a case of murder of the deceased by the other accused persons under Section 302 IPC.

"Appellant has been roped in by virtue of Sections 148 and 149 IPC. He was a part of the unlawful assembly which had the common object of eliminating Satya Narain by means of criminal force and, therefore, being a member of the unlawful assembly, he was also guilty of the offence committed in prosecution of the common object i.e. the offence under Section 302 IPC," the bench said.

Referring to Krishnappa Vs State of Karnataka (2012), the bench pointed out that the top court while examining Section 149 IPC held the provision created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. 

The bench pointed out that the question which was relevant and which was required to be answered by the court was whether the accused was a member of an unlawful assembly and not whether he actually took part in the crime or not.

In Vinubhai Ranchhodbhai Patel Vs Rajivbhai Dudabhai Patel (2018), the bench said it had been reiterated that Section 149 IPC does not create a separate offence but only declares vicarious liability of all members of the unlawful assembly for acts done in common object.

"It is true that there are certain lacunae in the prosecution. The scribe Kuldeep was not examined. Similarly, the younger brother Laxmi Narain was not examined though it has come on record that Laxmi Narain was killed in the year 1993 and in that case one of the accused is the appellant himself. It is also true that neither any country-made pistol was recovered nor any cartridge, empty or otherwise, recovered. However, the appellant has been roped in with the aid of Section 149 IPC," the bench said.

The bench thus held the trial court had rightly convicted the appellant under Section 148 IPC read with Section 302/149 IPC and that the high court was justified in confirming it.

The court dismissed the appeal, finding the evidence of prosecution witnesses remained unshaken despite extensive cross examination.

Case Title: Nitya Nand Vs State of UP & Anr