LexNITYA NAND versus STATE OF U.P. & ANR.
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[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 38 [2024] 9 S.C.R. Digital Supreme Court Reports 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. [2024] 9 S.C.R. 39 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 sentenc
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