Back
Mere Nomination in FIR Can't Sustain Conviction Under Section 149 IPC:
In a significant ruling on , the has acquitted two appellants in a murder case, holding that mere nomination in the First Information Report (FIR), without reliable evidence of membership in an and shared , cannot sustain a conviction under .
Appeal Survives for Two Accused
The appeal was filed by eight individuals convicted in 1988 under Sections 147, 148, 302/149, 325/149, and 323/149 IPC. During the pendency of the appeal, six of the appellants—Suresh, Devendra, Harendra, Ramdhan, Jaipal, and Ravendra—died, causing the appeal to abate against them. The matter thus proceeded only for the surviving appellants, Nagendra and Jugendra, who were represented by . The bench comprised Justice Salil Kumar Rai and Justice Padam Narain Mishra, with the latter delivering the judgment.
The Prosecution's Case and Trial
The prosecution alleged that on the date of the incident, around 2:30 PM, the eight accused, armed with lathis, spears, spades, and a gandasa, assaulted Om Pal Singh near the house of Kajam Puriya. Om Pal Singh succumbed to his injuries. His family members—Satendra, Rajpal, Vedpal, and Smt. Gyan Devi—who rushed to rescue him were also allegedly assaulted. The FIR was lodged promptly by Vijendra at 3:30 PM the same day. The trial court convicted all eight accused.
Critical Flaws in the Evidence
The High Court noted several critical weaknesses in the prosecution's case against Nagendra and Jugendra. While they were named in the FIR, no specific role or overt act was attributed to either of them. No particular weapon was associated with them. Of the five prosecution witnesses examined, only PW-1 (the informant) supported the prosecution version. The other four witnesses, including injured witnesses PW-2 Satendra and PW-5 Smt. Gyan Devi (the deceased's wife), were declared hostile. PW-2 stated he could not identify who assaulted him, and PW-5 said she did not know who killed her husband.
The court also highlighted the existence of a from the same incident and that six accused persons sustained injuries, which the prosecution failed to explain. This, the bench observed, cast further doubt on the narrative of a unilateral assault by an .
Legal Principle: Constructive Liability Under Section 149 IPC
The bench extensively discussed the legal requirements for invoking Section 149 IPC, which embodies the principle of constructive or vicarious liability. Relying on the 's decisions in Kuldip Yadav & Ors. v. State of Bihar (2011) and Ramachandran v. State of Kerala (2011), the court emphasised that before fastening such liability, the prosecution must first establish, , the existence of an as defined in , the accused's membership thereof, and the requisite .
at the scene or mere naming in the FIR, the court reiterated, is insufficient to attract constructive liability. The court observed that the trial court had failed to record any clear finding on the nature of the assembly, its , or how Nagendra and Jugendra shared that object.
Key Observations from the Bench
The judgment contains several powerful observations that underscore the principle:
" , by itself, cannot establish their guilt."
"Before fastening constructive liability upon an accused under Section 149 IPC, the Court must be satisfied that the prosecution has established, , not only his membership of the alleged but also the existence of the requisite or the knowledge contemplated by Section 149 IPC. , without more, cannot be treated as sufficient to attract such ."
"There is no discussion as to how the assembly constituted an within the meaning of , what was the of the assembly, when and where such was formed, and in what manner the surviving appellants shared or were proved to have shared such ."
"In the absence of a finding that the surviving appellants were members of an within the meaning of and shared its , their conviction with the aid of Section 149 IPC cannot be sustained."
Final Verdict:
The High Court concluded that the prosecution had failed to prove the essential ingredients of Section 149 IPC against Nagendra and Jugendra. The trial court's judgment and order dated , was set aside in their favour. The appeal was allowed, and both appellants were acquitted. Their bail bonds were cancelled, and the sureties discharged, but they were directed to comply with (corresponding to ) by furnishing requisite bonds before the trial court for the period prescribed by law.
The court also directed that Rs. 15,000 be paid to the , , from the for his assistance.
