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In order to attract Section 149 of the Code it must be shown by the prosecution that the incriminating act was done to accomplish the common object by such unlawful assembly and it must be within the knowledge of the other members as one likely to be committed in furtherance of the common object
The Supreme Court has said mere presence of accused as part of unlawful assembly with a common object, inferred from weapons and end result of violence or other acts, is sufficient for conviction, even if no overt is imputed to them.
A bench of Justices S Ravindra Bhat and Aravind Kumar explained Section 149 of the IPC, saying this provision does not create a separate offence but only declares vicarious liability of all members of unlawful assembly for acts done in common object.
"Thus, in order to attract Section 149 of the Code it must be shown by the prosecution that the incriminating act was done to accomplish the common object by such unlawful assembly. It must be within the knowledge of the other members as one likely to be committed in furtherance of the common object. Even if no overt act is imputed to the accused, the presence of the accused as part of the unlawful assembly is sufficient for conviction. The inference of a common object has to be drawn from various factors such as the weapons with which the members were armed, their movements, the acts of violence committed by them, and the end result," the bench said.
The apex court acquitted Naresh alias Nehru, Irshad and another person for firing a gun shot upon a boy, Ajay, who died on April 23, 2016.
In the instant case, the court noted the High Court has held that every member had inhibited the common intention to accomplish the unlawful object.
The facts on hand, however, would disclose that the motive alleged was a quarrel that ensued between Ravi and Nabbu with Ajay and Suraj on the day of Dulhandi and Ravi is said to have threatened to kill Ajay. This factor would clearly disclose that the appellants herein were not involved in the fight that occurred on the day of Dulhandi and as such no motive could be attributed to the appellants, it said.
The prosecution thus failed to prove that the appellants herein had shared a common object with other members of the alleged unlawful assembly, it said.
"To convict a person under Section 149 IPC prosecution has to establish with the help of evidence that firstly, appellants shared a common object and were part of unlawful assembly and secondly, it
had to prove that they were aware of the offences likely to be committed is to achieve the said common object. Both these ingredients are conspicuously absent and there is no evidence to connect the petitioners with the deceased or the co-accused," the bench said.
The court also pointed out undisputedly, no overt act has been attributed to the appellants, and in unequivocal terms, a prosecution witness admits in his cross-examination that none of the accused except Pawan had caused injury to the deceased and there was only a single shot fired from the pistol.
Therefore, the bench said, "We are of the considered view that the prosecution had failed to prove the guilt of the appellants herein beyond reasonable doubt, and non-consideration of the lacuna in the prosecution case in proper perspective by the Trial Court and the High Court has resulted in miscarriage in the administration of justice namely conviction of the appellants which cannot be sustained."
The court further pointed out the confessional statements recorded by the accused after the police custody became inadmissible having regard to the provisions of Sections 25 and 26 of the Evidence Act, of 1872.
It also said the HC and the trial court relied on CCTV footage to convict the appellants and co-accused persons. However, the said evidence was infested with serious doubts. The very manner in which it came into existence itself would raise a serious doubt not only about its source but also about the presence of the appellants at the scene of crime, the court said.
The court allowed the appeal filed against the judgements of the Punjab and Haryana High Court and the sessions court, also noticing other lacuna and gaps in the prosecution story, creating a serious doubt about its veracity.
Case Title: Naresh @ Nehru Vs State of Haryana
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