NITYA NANDversusSTATE OF U.P. & ANR.

                  [2024] 9 S.C.R. 37 : 2024 INSC 655

                                Nitya Nand
                                     v.
                            State of U.P. & Anr.
                    (Criminal Appeal No. 1348 of 2014)
                             04 September 2024
               [Abhay S. Oka and Ujjal Bhuyan,* JJ.]

                           Issue for Consideration
       Whether the prosecution could prove the charges against the
       appellant under Sections 148 and 302/149 IPC beyond reasonable
       doubt. Whether the appellant was a part of the unlawful assembly
       and if he actually took part in the crime or not.

                                  Headnotes†
       Penal Code, 1860 – ss.149, 148 – Appellant alongwith others
       was convicted for the murder of his Uncle – Whether the
       appellant was a part of the unlawful assembly – Plea of the
       appellant that both the courts below erred in convicting him
       as the allegation against him was that he was carrying a
       country- made pistol, however, neither were there any firearm
       injuries nor recovery of any country-made pistol or empty
       cartridge:
       Held: Appellant was roped in by virtue of ss.148 and 149 – PW-1
       and PW-2 (sons of the deceased) were eyewitnesses – Appellant
       was carrying a country-made pistol in his hand – Neither PW-1
       nor PW-2 stated that the appellant had fired at them or at the
       deceased – The role attributed to the appellant was helping the
       other accused persons and himself flee from the crime scene by
       frightening the people including PW-1 and PW-2 when they were
       about to reach the crime scene, by firing from his country-made
       pistol into the air – Factum of causing injury or not causing injury
       would not be relevant when an accused is roped in with the aid
       of s.149 – Further, though, neither any country-made pistol nor
       any cartridge, empty or otherwise, was recovered however, as
       the appellant was roped in with the aid of s.149 IPC, no overt
       act is required to be imputed to a particular person when the
       charge is u/s.149; the presence of the accused as part of the


* Author
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      unlawful assembly is sufficient for conviction – Appellant was a
      part of the unlawful assembly which had the common object of
      eliminating the deceased by criminal force – Therefore, being
      a member of the unlawful assembly, he was also guilty of the
      murder committed in prosecution of the common object – Charges
      against the appellant u/ss.148 and 302/149 proved beyond
      reasonable doubt. [Paras 22, 24, 25, 30.1, 32]
      Penal Code, 1860 – s.149 – Liability under – Discussed.

                              Case Law Cited
      Krishnappa v. State of Karnataka [2012] 6 SCR 1068 : (2012) 11
      SCC 237; Vinubhai Ranchhodbhai Patel v. Rajivbhai Dudabhai
      Patel [2018] 6 SCR 1050 : (2018) 7 SCC 743; Yunis alias Kariya
      Vs. State of M.P. (2003) 1 SCC 425 – relied on.

                                List of Acts
      Penal Code, 1860.

                             List of Keywords
      Unlawful assembly; Part of the unlawful assembly; Member of
      the unlawful assembly; Common object; In prosecution of the
      common object; Murder; Charges proved beyond reasonable
      doubt; Firearm injuries; Country-made pistol; Cartridge, Empty
      cartridge; Lacunae in the prosecution; Scribe not examined;
      Non-recovery of country- made pistol; Overt act; Property dispute;
      Old enmity.

                            Case Arising From

      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1348
      of 2014
      From the Judgment and Order dated 27.09.2012 of the High Court
      of Judicature at Allahabad in CRLA No. 340 of 1997

                          Appearances for Parties

      P. K. Jain, Saurabh Jain, S.P. Singh Rathore, P.K. Goswami,
      Jagannath Jha, Arunansh Bharti Goswami, Advs. for the Appellant.
      Goutham Shivhankar, Ms. Ruchira Goel, Adit Jayeshbhai Shah,
      Sharanya Sinha, Ms. Manju Jetley, Advs. for the Respondents.
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                    Nitya Nand v. State of U.P. & Anr.


                Judgment / Order of the Supreme Court
                                Judgment
     Ujjal Bhuyan, J.
     This appeal is directed against the judgment and order dated
     27.09.2012 passed by the Allahabad High Court upholding the
     conviction of the appellant alongwith others under Sections 148 and
     302/149 of the Indian Penal Code, 1860 (IPC).
2.   It may be mentioned that learned Sessions Judge, Etah vide the
     judgment and order dated 20.01.1997 passed in Sessions Trial No.
     17 of 1993 convicted the appellant alongwith three others under
     Sections 148 and 302/149 IPC and sentenced each of them to
     undergo rigorous imprisonment (RI) for two years and to pay fine
     of Rs. 2,000.00 for the conviction under Section 148 IPC with a
     default stipulation and further sentenced to undergo imprisonment
     for life under Section 302/149 IPC. Another accused Shree Dev
     was convicted for the offences punishable under Sections 147 and
     302/149 IPC. He was sentenced to undergo RI for two years and
     to pay fine of Rs. 2,000.00 with a default stipulation for the offence
     committed under Section 147 IPC and to suffer imprisonment for life
     under Section 302/149 IPC.
3.   Being aggrieved by the aforesaid conviction and sentence, all the
     five accused persons including the appellant herein preferred criminal
     appeal under Section 374 of the Code of Criminal Procedure, 1973
     (Cr.P.C.) before the Allahabad High Court (High Court) which was
     registered as Criminal Appeal No. 340 of 1997. By the judgment and
     order dated 27.09.2012, a division bench of the High Court affirmed
     the conviction and sentence of all the accused persons including
     that of the appellant and dismissed the criminal appeal.
4.   The appellant then preferred petition for special leave to appeal
     before this Court being SLP(Criminal) No. 750/2013. This Court vide
     the order dated 04.02.2013 had issued notice on the special leave
     petition as well as on the application for bail. On 30.06.2014, this
     Court granted leave but rejected the prayer for bail. It was thereafter
     that Criminal Appeal No. 1348 of 2014 came to be registered.
5.   We have heard learned counsel for the parties.
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6.    Prosecution case in brief is that informant Sarwan Kumar, son of late
      Satya Narain, had lodged a written report (First Information Report)
      i.e. FIR before Police Station Soron, District Etah on 08.09.1992 at
      05:10 PM. He stated that on 08.09.1992 at about 04:30 PM, he and
      his father Satya Narain as well as his uncle Laxmi Narain as per
      their daily routine, came to Ganga ghat near Ambhagarh Akhada,
      after easing themselves, for taking bath. At around the same time,
      from the side of Dhimaro Ka Mohalla, Bhola Shankar and Kuldeep
      Kumar Tiwari came. He and his uncle proceeded ahead while talking
      with Bhola Shankar and Kuldeep Kumar Tiwari. This way they had
      reached the temple of Govardhan Nath Ji. In the meantime, from
      the southern side of Tulsi Park, Shree Dev and his four sons, viz.,
      Munna Lal, Raju, Nitya Nand and Uchchav @ Pappu, resident of
      Mohalla Tiraha, Chodah Pore, P.S. Soron, armed with kanta, knives
      and country-made pistol confronted his father Satya Narain. All the
      accused persons caught hold of his father and started assaulting him
      with kanta and knives. On hearing the cries of his father, informant
      Sarwan Kumar and others dashed towards Satya Narain to save
      him. It was then that appellant Nitya Nand 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 Satya Narain had already succumbed
      to the multiple injuries which he had suffered on his body.
      6.1. A written report of the incident scribed by Kuldeep Kumar Tiwari
           i.e., the FIR was submitted by Sarwan Kumar at 05:10 PM on
           the same day at P.S. Soron.
      6.2. It was mentioned that Shree Dev, deceased Satya Narain, and
           Laxmi Narain were the three brothers. Laxmi Narain, who was
           the youngest of the three, had no issue; so he had executed
           a will in favour of Satya Narain’s sons. Shree Dev and his
           sons including the appellant Nitya Nand were enraged by this
           disposition of property by Laxmi Narain. This led to filing of
           several cases between them. Due to such litigation, there was
           an old enmity and for that reason, the accused persons had
           fatally assaulted Satya Narain on that fateful day.
7.    On the basis of the FIR, Crime No. 237/1992 was registered at P.S.
      Soron under Sections 147, 148, 149 and 302 IPC. The investigating
      officer had carried out investigation of the case. The post-mortem
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                    Nitya Nand v. State of U.P. & Anr.


     report indicated multiple ante-mortem injuries on the person of the
     deceased. On completion of the investigation, charges under Sections
     148 and 302/149 IPC were framed against the accused Munna, Raju,
     Uchchav @ Pappu and Nitya Nand. Similarly, charges under Sections
     147 and 302/149 IPC were framed against the accused Shree Dev.
8.   The accused persons denied the charges and claimed to be tried.
9.   To prove its case, the prosecution examined a total of five witnesses.
     After closure of the prosecution evidence, statements of the accused
     persons were recorded under Section 313 Cr.P.C.
10. The trial court on an appreciation of the evidence adduced and
    considering the materials on record, convicted the accused Shree
    Dev under Sections 147 and 302/149 IPC and also convicted the
    appellant and the other sons of Shree Dev i.e. Munna Lal, Raju and
    Uchchav @ Pappu under Sections 148 and 302/149 IPC. All the
    accused were thereafter sentenced as indicated above.
11. In appeal, the High Court observed that the eyewitness account
    of the incident stood fully corroborated by the medical evidence.
    Prosecution had proved its case beyond all reasonable doubt against
    each of the accused. Therefore, while upholding the conviction and
    sentence, the High Court dismissed the appeal.
12. Learned counsel for the appellant submits that both the trial court
    and the High Court committed a manifest error in convicting the
    appellant under Sections 148 and 302/149 IPC. He submits that
    allegation against the appellant was that he was carrying a country-
    made pistol. As the informant and others tried to rush towards Satya
    Narain on hearing his cries as he was being assaulted by the other
    accused persons, appellant Nitya Nand fired from his country-made
    pistol thereby threatening the informant and the others who tried to
    rescue Satya Narain. As the appellant fired from his country-made
    pistol, all the accused persons made good their escape from the
    crime scene. However, 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. In the absence thereof, both
    the courts below were not justified in so convicting the appellant.
     12.1. Learned counsel for the appellant further submits that Laxmi
           Narain, who was with the deceased and who had walked ahead
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            along with the informant while talking with Bhola Shankar and
            Kuldeep Kumar Tiwari, was not examined by the prosecution
            as a witness. This is a crucial omission as because only due
            to gifting of the property by Laxmi Narain to the sons of the
            deceased Satya Narain which led to such bad blood between
            the brothers leading to the fatal incident. Learned counsel also
            emphasized that another crucial omission on the part of the
            prosecution is that Kuldeep Kumar Tiwari was not examined as
            a witness. Such glaring omission has cast uncertain shadows
            over the prosecution case. Omission to examine Kuldeep Kumar
            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.
      12.2. Learned counsel for the appellant finally submits that appellant
            has been convicted solely on the basis of suspicion. 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. That being the position, the
            impugned conviction and sentence of the appellant should be
            interfered with by this Court.
13. Learned counsel for respondent No. 1, State of U.P., has vehemently
    argued that conviction and sentence of the appellant is fully justified.
    There is no reason to interfere with the same.
      13.1. He submits that there was a clear motive for the accused
            persons, including the appellant, to have caused the murder
            of Satya Narain. According to him, the accused Shree Dev,
            deceased Satya Narain, and Laxmi Narain were the three
            brothers, Laxmi Narain being the youngest of the three. Since
            Laxmi Narayan had no issue, he executed a will in favour of the
            sons of Satya Narain. Shree Dev and his sons, including the
            appellant, were unable to come to terms with this development.
            They were highly agitated which led to filing of several cases
            by and between them. This was the real intention behind the
            plot to kill Satya Narain.
      13.2. Learned counsel for respondent No. 1 submits that the appellant
            was very much a part of the unlawful assembly as one of the
            persons at the place of occurrence which was mentioned in
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           the FIR itself. That apart, in their evidence, PW-1 and PW-2,
           categorically stated that appellant was carrying a country-made
           pistol from which he fired in the air with the intent to frighten
           the informant and others who tried to come to the rescue of
           the deceased. Taking advantage of the situation, the accused
           persons escaped from the crime scene.
     13.3. The evidence of PW-1 and PW-2 in this regard is unflinching.
           Therefore, non-recovery of the country-made pistol or any
           cartridge fired therefrom cannot be fatal to the prosecution case.
     13.4. 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.
     13.5. Learned counsel for respondent No. 1 State submits that
           it is a case of direct evidence which clearly establish the
           involvement of the appellant in the killing of Satya Narain. The
           ocular evidence is fully supported by the medical evidence.
           That apart, the post incident conduct of the appellant is also
           a significant factor. Laxmi Narain, who could have been an
           important eyewitness, was killed on 25.10.1993. In that case,
           appellant herein along with others were named as accused.
           Therefore, it was not possible for the prosecution to present
           Laxmi Narain as a prosecution witness.
     13.6. He, therefore, submits that there is no merit in the criminal
           appeal which should be dismissed.
14. Submissions made by learned counsel for the parties have received
    the due consideration of the Court.
15. Question for consideration is whether the prosecution could establish
    the culpability of the appellant in the murder of Satya Narain beyond
    any reasonable doubt? In other words, whether the prosecution
    could prove the charges against the appellant under Sections 148
    and 302/149 IPC beyond any reasonable doubt?
16. To answer the aforesaid question it is necessary to briefly analyse
    the evidence on record. PW-1 is Shri Sarwan Kumar S/o Late Satya
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      Narain. He is the informant in the case. In his examination in chief,
      PW-1 stated that his father Late Satya Narain was one of the three
      brothers, Shree Dev being the eldest and Laxmi Narain alias Daroga
      being the younger. Shree Dev had four sons viz. Munna Lal, Raju,
      Nitya Nand (appellant) and Uchchav alias Pappu. His uncle Laxmi
      Narain was issueless and was residing with Satya Narain. Laxmi
      Narain gifted all his property to the informant and his brothers i.e. to
      the sons of Satya Narain. This was not to the liking of the accused
      persons which resulted in litigation and enmity.
      16.1. He further stated that on the fateful day at about 04:30 PM
            his father Satya Narain, uncle Laxmi Narain and himself after
            easing themselves at about 04:30 PM, had reached Ambhagarh
            Akhada, Har Ki Pauri. At the same time from the side of Dhimaro
            Ka Mohalla, Shri Kuldeep S/o Ram Prakash and Bhola Shankar
            S/o Siaram came. Informant and his uncle Laxmi Narain started
            a conversation with the above two persons and while talking
            with the two persons went ahead and reached the temple of
            Goverdhan Nath Ji. Father of PW-1 Satya Narain had got
            down from the stairs for bathing in the Ganga at Har Ki Pauri.
            In the meanwhile, from the southern side of Tulsi Park, the
            accused persons came. While Shree Dev was armed with a
            danda, Munna Lal was armed with kanta. Raju and Uchchav
            were armed with knives. Appellant Nitya Nand was carrying
            a country-made pistol in his hand. As they confronted Satya
            Narain, Shree Dev exhorted the other accused persons to kill
            him. Thereafter, the accused persons caught hold of his father
            and started assaulting him with knives and kanta. As Satya
            Narain cried for help, Bhola Shankar, Kuldeep, Laxmi Narain
            and PW-1 rushed to help him. They had reached the Bharoji
            temple when appellant Nitya Nand fired a shot in the air from
            his country-made pistol to frighten PW-1 and the others. Taking
            advantage of the situation, the accused persons made good
            their escape from the crime scene through the south-western
            side.
      16.2. As PW-1 went near his father, he found that his father had
            received multiple injuries inflicted by knives and kanta on his
            head, cheek, neck, back and ribs. His father Satya Narain
            had died on the spot with half of his body inside the water.
            While blood was splattered on the spot, sandal of his father
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                    Nitya Nand v. State of U.P. & Anr.


           was lying on the stairs with stick in the water. PW-1 stated
           that he had dictated a report of the incident on the spot to
           Kuldeep Kumar Tiwari S/o Ram Prakash who had scribed the
           same. After he had completed writing down what was dictated,
           scribe Kuldeep Kumar Tiwari read over the same to PW-1 and
           thereafter took his signature. PW-1 stated that he along with
           his uncle Laxmi Narain went to the police station in a tricycle
           (rickshaw) and handed over the report to the incharge of the
           police station who registered a case and handed over a copy
           of the same to PW-1.
17. In his cross-examination PW-1 stated that after hearing the cries
    of his father, he had rushed back to the spot. About five-six nearby
    people had also gathered there but he could not remember their
    names. Regarding Bhola Shankar, PW-1 stated that he came after
    the incident.
     17.1. When PW-1 tried to go near his father, appellant Nitya Nand
           had fired in the air to stop him and thereafter he ran away.
           No fire was shot for causing injury either to PW-1 or to the
           deceased. People did not find any cartridge or empty cartridge
           on the spot.
     17.2. He admitted that because of his uncle Laxmi Narain gifting
           all his property to the sons of Satya Narain including himself
           there was enmity between the two sides.
     17.3. Regarding the deceased, PW-1 stated that he had taken his
           last meal between 02.00 to 02.30 PM when he had taken dal
           and roti. His father’s daily routine was to go to Har ki Pauri for
           taking a bath in the Ganga. On the fateful day, his father went
           to ease himself first and then went for bathing.
     17.4. PW-1 stated that his uncle Shree Dev had exhorted the other
           accused persons to kill his father. This fact however is not
           mentioned in the FIR.
     17.5. PW-1 stated that he was at the crime scene for about half an
           hour. During this period, about 100-200 people had gathered.
           After intimation was sent to home about the incident, people
           from home had also arrived. After getting the report written,
           PW-1 proceeded to the police station in a rickshaw and
           submitted the same.
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      17.6. PW-1 denied the suggestion that the incident as reported in the
            FIR had not happened at the time mentioned therein and that
            the accused persons were falsely implicated due to previous
            enmity. He also denied the suggestion that the FIR (Ex.1) was
            not written in the handwriting of Kuldeep.
18. Bhola Shankar, son of Satya Narain, deposed as PW-2. While
    reiterating what was stated by PW-1 leading to the incident, he
    further stated that Satya Narain had cried out for help to save him
    when he was being assaulted by the accused persons. He stated
    that he alongwith other people rushed to the spot when appellant
    Nitya Nand fired from his country-made pistol. He asserted that
    he alongwith the other people had seen the accused assaulting
    Satya Narain. After the accused persons escaped towards the
    south-western side, they came to the spot where Satya Narain
    was lying. By that time, he was already dead with half of his body
    inside the water.
      18.1. In his cross-examination, PW-2 stated that he had seen the
            incident with his own eyes. FIR was written by Kuldeep Kumar
            and his statement was also recorded by the police. He further
            stated that he had seen Satya Narain falling down the stairs
            and crying for help. At that time, PW-1 was also near him and
            he had also witnessed the assault.
      18.2. He denied the suggestion that he was not present at the time
            of the incident and that he was not witness to the writing and
            lodging of the FIR. He further denied the suggestion that he
            was deposing falsely due to his friendship with the informant.
19. Dr. Satya Mitra, who was serving in the District Hospital, Etah, deposed
    as PW-3. He had carried out the post-mortem examination on the
    dead body of Satya Narain on 09.09.1992, following which he found
    the following ante-mortem injuries on the body of the deceased:
            1. Incised wound 10 cm x 1 cm x brain matter deep
               over right side and back of head at left of back of
               upper and of right external ear. Skin muscle (scalp)
               bone meninges and brain cut.
            2. Multiple incised wound in an area 10 cm x 7 cm on
               the right side cheek and upper part of neck measuring
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                1 cm x 0.3 cm muscle deep to 3 cm x 0.7 cm x bone
                deep. Mandible on right side fractured.
            3. Stab wound 3 cm x 1 cm x thoracic cavity deep over
               right side lateral side of chest 8 cm below axillary
               crease. On discussion subcostal muscle underlying
               rib, pleura right side, lung right side, cut direction
               right to left transverse.
            4. Stab wound 3.5 cm x 1 cm x thoracic cavity deep
               on left side chest 6 cm below left nipple. Skin,
               muscle underlying the 8th rib, left pleura, left lung
               and pericardium part are cut. Direction left to right
               and slightly upwards.
            5. Multiple incised wound in an area 10 cm x 5 cm on the
               left side chest above nipple measuring 2 cm x 0.3 cm
               x skin deep to 3 cm x 0.5 cm x muscle and rib deep.
            6. Multiple incised wound over back of chest in an area
               20 cm x 20 from base of neck above measuring 2 cm
               x 0.2 cm. Muscle deep to 3 cm x 0.5 cm x thoracic
               cavity deep. Right scapula cut. Right pleura and right
               lung cut at places.
            7. Multiple incise wound in an area 10 cm x 6 cm over
               front and external aspect of left upper arm 3 cm
               below the left shoulder joint.
     19.1. He opined that death was possibly caused due to shock and
           haemorrhage as a result of the injuries. The injuries were
           caused by sharp-edged weapons like kanta, knives etc.
     19.2. PW-3 proved the post-mortem report which was in his
           handwriting as well as his signature thereon.
20. At the relevant point of time, Ramesh Chandra Sharma served
    as Inspector at Soron Police Station. He deposed as PW-4. He
    has stated that investigation of the case was started by Shri Devi
    Dayal Prajapati from whom he had taken over the investigation on
    23.09.1992. On completion of investigation, he had submitted the
    chargesheet on 13.10.1992.
     20.1. In his cross-examination, he has stated that he did not record
           the statement of any of the witnesses. On the basis of the
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            statements recorded by his predecessor Shri Devi Dayal
            Prajapati, and after perusal of other documents, the chargesheet
            was submitted against the accused persons.
21. Shri Devi Dayal Prajapati deposed as PW-5. He has stated that
    on the date of receipt of the first information, he had recorded the
    statements of Laxmi Narain, Bhola Shankar, Kuldeep Kumar and the
    witnesses of the panchnama. Despite search, the accused persons
    were not found and, therefore, they could not be arrested. Thereafter,
    investigation was taken over by PW-4.
      21.1. In his cross-examination, he admitted that though he had taken
            blood sample from the stairs where the dead body of Satya
            Narain was found, he did not send the sampled blood for
            chemical examination. Though he had recorded the statement
            of the informant, the latter did not mention in his statement that
            his uncle Shree Dev had exhorted the other accused persons
            to kill his father and that he should not be spared as he had
            grabbed the property of his younger brother. Again, he did
            not mention in the case diary that Bhola Shankar was present
            on the spot. That apart, Bhola Shankar did not mention the
            names of any assailant.
22. From the evidence tendered on behalf of the prosecution, it is clear
    that PW-1 and PW-2 are the eyewitnesses. When PW-1 Satya
    Narain and Laxmi Narain had reached Har Ki Pauri at Ambhagarh
    Akhada, they were joined by Kuldeep and Bhola Shankar (PW-2).
    PW-1 and Laxmi Narain went ahead talking with Kuldeep and PW-
    2. Satya Narain was walking down the steps for a dip in the river.
    At that time, the accused persons arrived at the scene from the
    southern side of Tulsi Park. Both PW-1 and PW-2 were categorical
    in their evidence that Shree Dev was armed with a danda, Munna
    Lal was armed with kanta and Raju and Uchchav were armed with
    knives. Appellant Nitya Nand was carrying a country-made pistol in
    his hand. Though the appellant did not assault Satya Narain, the
    other accused persons actively participated in the assault. Hearing
    the cries of Satya Narain, PW-1, PW-2, Kuldeep and Laxmi Narain
    rushed back. When they had reached near the crime scene, appellant
    Nitya Nand fired a shot in the air from his country-made pistol to
    frighten PW-1 and the others. As the appellant fired in the air, all the
    accused persons escaped from the crime scene.
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23. At this stage, we may mention that PW-2 was categorical in his
    cross-examination that he had seen the incident with his own eyes
    and that PW-1 was also with him then.
24. Neither PW-1 nor PW-2 has stated that appellant had fired at them nor
    he had fired at the deceased. The role attributed to the appellant was
    helping the other accused persons and himself flee from the scene of
    crime by frightening the people including PW-1 and PW-2 when they
    were about to reach the crime scene by firing from his country-made
    pistol into the air. The fact that the death of Satya Narain was homicidal
    has been fully established by the post-mortem report as well as by the
    evidence of PW-3 i.e. the doctor. The ocular evidence supported by
    the medical evidence clearly establish that it was a case of murder of
    the deceased by the other accused persons under Section 302 IPC.
25. Appellant has been roped in by virtue of Sections 148 and 149 IPC.
    Appellant 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.
26. At this juncture, we may briefly survey the relevant legal provisions.
27. Section 141 IPC defines unlawful assembly. It says an assembly
    of five or more persons is designated as unlawful assembly if the
    common object of the persons composing that assembly is to commit
    an illegal act by means of criminal force.
28. As per Section 148 IPC which deals with rioting armed with deadly
    weapon, whoever is guilty of rioting, being armed with a deadly weapon
    or with anything which, used as weapon of offence, is likely to cause
    death, shall be punished with imprisonment of either description for a
    term which may extend to three years, or with fine, or with both. Rioting
    is defined in Section 146 IPC. As per the said definition, whenever
    force or violence is used by an unlawful assembly, or by any member
    thereof, in prosecution of the common object of such assembly, every
    member of such assembly is guilty of the offence of rioting.
29. This brings us to the pivotal section which is Section 149 IPC. Section
    149 IPC says that every member of an unlawful assembly shall be
    guilty of the offence committed in prosecution of the common object.
    Section 149 IPC is quite categorical. It says that if an offence is
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       committed by any member of an unlawful assembly in prosecution
       of the common object of that assembly, or such as the members
       of that assembly knew to be likely to be committed in prosecution
       of that object, every person who, at the time of committing of that
       offence, is a member of the said assembly; is guilty of that offence.
       Thus, if it is a case of murder under Section 302 IPC, each member
       of the unlawful assembly would be guilty of committing the offence
       under Section 302 IPC.
30. In Krishnappa Vs. State of Karnataka,1 this Court while examining
    Section 149 IPC held as follows:-
                20. It is now well-settled law that the provisions of Section
                149 IPC will be attracted whenever any offence committed
                by any member of an unlawful assembly in prosecution
                of the common object of that assembly, or when the
                members of that assembly knew that offence is likely to
                be committed in prosecution of that object, so that every
                person, who, at the time of committing of that offence is
                a member, will be also vicariously held liable and guilty
                of that offence. 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. This principle
                ropes in every member of the assembly to be guilty of an
                offence where that offence is committed by any member
                of that assembly in prosecution of common object of that
                assembly, or such members or assembly knew that offence
                is likely to be committed in prosecution of that object.
                21. The factum of causing injury or not causing injury would
                not be relevant, where the accused is sought to be roped
                in with the aid of Section 149 IPC. The relevant question
                to be examined by the court is whether the accused was
                a member of an unlawful assembly and not whether he
                actually took active part in the crime or not.
       30.1. Thus, 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


1     [2012] 6 SCR 1068 : (2012) 11 SCC 237
[2024] 9 S.C.R.                                                            51

                         Nitya Nand v. State of U.P. & Anr.


              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 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. 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
              whether he actually took part in the crime or not.
31. As a matter of fact, this Court in Vinubhai Ranchhodbhai Patel Vs.
    Rajivbhai Dudabhai Patel 2 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. This Court has held:
            20. In cases where a large number of accused constituting
            an “unlawful assembly” are alleged to have attacked and
            killed one or more persons, it is not necessary that each
            of the accused should inflict fatal injuries or any injury at
            all. Invocation of Section 149 is essential in such cases
            for punishing the members of such unlawful assemblies
            on the ground of vicarious liability even though they are
            not accused of having inflicted fatal injuries in appropriate
            cases if the evidence on record justifies. The mere presence
            of an accused in such an “unlawful assembly” is sufficient
            to render him vicariously liable under Section 149 IPC
            for causing the death of the victim of the attack provided
            that the accused are told that they have to face a charge
            rendering them vicariously liable under Section 149 IPC for
            the offence punishable under Section 302 IPC. Failure to
            appropriately invoke and apply Section 149 enables large
            number of offenders to get away with the crime.
                                           *****
            22. When a large number of people gather together
            (assemble) and commit an offence, it is possible that
            only some of the members of the assembly commit the


2   [2018] 6 SCR 1050 : (2018) 7 SCC 743
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              crucial act which renders the transaction an offence and
              the remaining members do not take part in that “crucial
              act” — for example in a case of murder, the infliction of the
              fatal injury. It is in those situations, the legislature thought
              it fit as a matter of legislative policy to press into service
              the concept of vicarious liability for the crime. Section 149
              IPC is one such provision. It is a provision conceived in
              the larger public interest to maintain the tranquility of the
              society and prevent wrongdoers (who actively collaborate
              or assist the commission of offences) claiming impunity on
              the ground that their activity as members of the unlawful
              assembly is limited.
                                          *****
              34. For mulcting liability on the members of an unlawful
              assembly under Section 149, it is not necessary that
              every member of the unlawful assembly should commit
              the offence in prosecution of the common object of the
              assembly. Mere knowledge of the likelihood of commission
              of such an offence by the members of the assembly is
              sufficient. For example, if five or more members carrying
              AK 47 rifles collectively attack a victim and cause his
              death by gunshot injuries, the fact that one or two of the
              members of the assembly did not in fact fire their weapons
              does not mean that they did not have the knowledge of the
              fact that the offence of murder is likely to be committed.
32. 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. Therefore, 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


3     (2003) 1 SCC 425
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                       Nitya Nand v. State of U.P. & Anr.


     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.
33. In view of what we have discussed above, we have no doubt in our
    mind that 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 the same. The question framed in
    paragraph 15 above is therefore answered in the affirmative.
34. Thus, we see no merit in the appeal which is accordingly dismissed.

     Result of the case: Appeal dismissed.



     †
         Headnotes prepared by: Divya Pandey