No Overt Act Required When Charge Is U/S 149 IPC; Presence Of Accused As Part Of Unlawful Assembly Is Sufficient For Conviction: SC

The Supreme Court reiterated that no overt act is required to be imputed to a person when the charge is under Section 149 of the Indian Penal Code (IPC) and that the presence of the accused as part of the unlawful assembly is sufficient for conviction.

The Court was deciding a criminal appeal preferred against the judgment of the Allahabad High Court which upheld the conviction of the accused along with others under Sections 148, 302, and 149 of the IPC.

The two-Judge Bench of Justice Abhay S. Oka and Justice Ujjal Bhuyan elucidated, “… as held by this Court in Yunis alias Kariya Vs. State of M.P.3, 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. It is clear from the evidence of PW-1 and PW-2 that the appellant was part of the unlawful assembly which committed the murder. Though they were extensively cross-examined, their testimony in this regard could not be shaken.”

The Bench agreed with the fact that there are certain lacunae in the prosecution. However, it noted that neither any country-made pistol was recovered, nor any cartridge, empty or otherwise, was recovered and the accused has been roped in with the aid of Section 149 IPC.

AOR P.K. Jain represented the appellant while Advocate Pradeep Kumar Yadav represented the respondents.

Factual Background -

As per the prosecution case, the informant had lodged an FIR stating that in 1992, he and his father along with his uncle as per their daily routine came to Ganga ghat for taking bath. At that time, few persons armed with kanta, knives, and country-made pistol confronted the informant’s father. They allegedly caught hold of his father and started assaulting him and on hearing his cries, the informant and others dashed towards his father to save him. It was then that the appellant/accused allegedly fired from his country-made pistol whereafter all the accused persons made good their escape from the south-western side.

When the informant and others reached the spot, his father had already succumbed to the multiple injuries which he had suffered on his body. Accordingly, the Sessions Judge convicted the appellant along with others and sentenced each of them to undergo rigorous imprisonment for two years along with a fine of Rs. 2,000/-. Being aggrieved, the accused persons filed an appeal before the High Court but the Court affirmed their conviction and sentence. Challenging this, the accused approached the Apex Court.

The Supreme Court in the above context of the case observed, “… this Court held that Section 149 IPC creates 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. By application of this principle, every member of an unlawful assembly is roped in to be held guilty of the offence committed by any member of that assembly in prosecution of the common object of that assembly.”

The Court said that the factum of causing injury or not causing injury would not be relevant when an accused is roped in with the aid of Section 149 IPC and hence, the question which is relevant and which is required to be answered by the Court is whether the accused was a member of an unlawful assembly and not and whether he actually took part in the crime or not.

“As a matter of fact, this Court in Vinubhai Ranchhodbhai Patel Vs. Rajivbhai Dudabhai Patel2 has reiterated the position 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 added.

The Court, therefore, concluded that the Trial Court rightly convicted the appellant under Section 148 IPC read with Sections 302 and 149 IPC and that the High Court was justified in confirming the same.

Accordingly, the Apex Court dismissed the appeal and upheld the conviction of the appellant.

Cause Title- Nitya Nand v. State of U.P. & Anr. (Neutral Citation: 2024 INSC 655)

Appearance:

Appellant: AOR P. K. Jain, Advocates Saurabh Jain, SP Singh Rathore, P.K. Goswami, Jagannath Jha, Kafeel Ahmed, and Sujit Kumar Jha.

Respondents: AORs Manju Jetley, Ruchira Goel, Advocates Pradeep Kumar Yadav, Vishal Thakre, and Tota Ram.

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