Co-accused cannot be charged under Section 149 IPC if there is no agreement on a common purpose: Allahabad HC

For context, Section 149 of the Penal Code makes any person who, at the time the offence is committed, is a member of an unlawful assembly guilty of that offence.

A bench of Justice Siddhartha Varma and Justice Ram Manohar Narayan Mishra This was taken into account, although the appeal was Three accused challenged their conviction by the trial court in 1986 under Section 302 read with Section 149 IPC and Sections 148 IPC and 147 IPC.

The case in brief

Essentially on 6.^th In May 1983, an incident occurred in which Sacrifice (Gopi Krishna Gupta) was allegedly shot dead in his shop by seven defendants.

His son filed a complaint about the incident, accusing Gorelal, Sheo Ram, Shatrughan Singh, Ompal Singh, Rajendra Singh, Narendra Singh and Shiv Singh (who was reportedly unarmed) to attack his father (Gopi Krishna).

The FIR alleged that Defendant Gorelal fired the first shot, followed by indiscriminate shots from the other accused. Although the injury to the victim Gopi was recorded, he was still alive at the time of the FIR and in his dying declaration (recorded by a doctor) he identified the accused Gorelal than the one who shot him.

After an investigation, charges were framed against the accused under the above sections of the IPC. A separate charge was framed against the accused Shiv Singh, including the murder of another victim, Ram Gopal, who was allegedly found near the crime scene.

After the trial, all the seven accused were found guilty under Section 302 read with Section 149 IPC for the murder of Gopi Krishna and sentenced to imprisonment. They were also convicted under Section 148 IPC for armed sedition.

However, all seven accused were acquitted of the charge of murdering Ram Gopal.

Dissatisfied with the judgment of the Court of First Instance, the accused appellants turned to the Supreme Court. During the course of their appeal proceedings Gorelal, Shatrughan Singh, Rajendra Singh and Narendra Singh died, and therefore their appeals were rejected.

Essentially, the appeal was heard in favour of the appellants, namely Sheoram Singh, Shiv Singh and Ompal Singh.

In his challenge to the judgment and order of the extraordinary judge of 24 March 1986, the appellants' counsel submitted the following:

• In his final statement, the victim Gopi only mentioned that the accused Gorelal was present at the crime scene and had fired at him and therefore only Gorelal could be held responsible for the death of the deceased while the other co-accused namely Shiv Ram Singh, Shatrughan Singh, Rajendra Singh, Narendra Singh, Ompal Singh and Shiv Singh were not even present at the crime scene.
• It was clearly a false accusation against all other co-defendants except Gorelal.
• The first informant (son of the injured/victim) was not at the scene at all and after learning that Gorelal was made an accused by the deceased in his dying declaration and was held responsible for being shot, he fabricated the whole story incriminating the other accused just because their names were known to the first informant and they were hostile to him and also to his father.
• A review of the injury report and the autopsy reports shows that all of the injuries were gunshot wounds, namely three in number, caused by a single firearm, which proves that the co-defendants had in no way shot the injured/dead.
• The co-accused cannot be said to have a common objective as defined under Section 141 of the IPC, namely to be with Gorelal. In this regard, reliance has been placed on the Supreme Court's judgment in Vinubhai Ranchhodbhai Patel vs. Rajivbhai Dudabhai Patel & Others 2018, wherein it was held that in order to convict under Section 149 of the IPC, identification of a common objective is essential and if the common objective is not identified, the accused cannot in any way be convicted of the actual offence using Section 149 of the IPC.

AGA, representing the State, argued that it would have made little difference if only one name had been mentioned in the dying declaration, since there was clear evidence that the other accused were involved in the crime.

In view of these considerations, the Court first observed that the prosecution's argument loses its relevance when one looks at the dying declaration, since the deceased had mentioned that only the accused Gorelal was present at the scene and had shot the injured deceased.

“However, even in his dying declaration, the injured man had mentioned that there was no enmity between Gorelal and the injured/deceased. We note that the prosecution, although aware that its argument would be weak, did not attempt to prove the dying declaration. It was also not presented at the trial…”, the court found.

The court also found that the names of the other co-accused who were never mentioned in the dying declaration were mentioned by PW-1, the first informant just to settle accounts with them.

“It appears that PW-1 was hostile towards the other co-accused and, therefore, while making the first complaint in connection with the murder of his father, he mentioned their names also.”, the court found.

The court also took into account the fact that the gunshot wounds were only injuries of varying degrees. If the other co-defendant had also fired, there would have been injuries of varying degrees. Therefore, the court added, this also distorts the prosecution's argument.

In view of this, the Court allowed the appeal while emphasising that the various co-accused could not be charged under Section 149 IPC when the other co-accused were not present and also no agreement was reached regarding a common objective.

Appearances

Legal representative of the complainants: Senior Advocate VP Srivastava, assisted by advocates Jitendra Singh, Rajiv Nayan Singh and Nija Srivastava

Defendant’s legal counsel: AGA Amit Sinha, assisted by advocate Mayuri Mehrotra

Case Title – Gorelal Alias ​​Shyam Narain and others vs State of UP 2024 LiveLaw (AB) 561

Case citation: 2024 LiveLaw (AB) 561

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