Naresh @ Nehru V/S State Of Haryana [Criminal Appeal No.1786 Of 2023]
The division bench of Justice S. Ravindra Bhat and Justice Aravind Kumar said that the confessional statement of the accused relied upon by the prosecution was admittedly recorded after the arrest of those accused persons when accused 4, 5, and 6 were in police custody. Hence, said statement would become inadmissible having regard to the provisions of Sections 25 and 26 of the Evidence Act, of 1872. Section 25 of the Act in no uncertain terms makes it clear that no confession made to a police officer shall be proved as against a person accused of any offence.
The court observed that in order to attract Section 149 of the Code it must be shown by the prosecution that the incriminating act was done to accomplish the common object by such unlawful assembly. It must be within the knowledge of the other members as one likely to be committed in furtherance of the common object. Even if no overt act is imputed to the accused, the presence of the accused as part of the unlawful assembly is sufficient for conviction. The inference of a common object has to be drawn from various factors such as the weapons with which the members were armed, their movements, the acts of violence committed by them, and the end result.
ASI Ram Kishan while on patrolling duty at 75 feet road, had received a telephonic information that in the village Maheshwari certain persons had fired a gun-shot at a boy and upon reaching there, statement of Mohit @ Kala came to be recorded which was to the effect that at about 6.40 pm his cousins Ajay and Suraj were talking in front of the house of Ex. Sarpanch Karan Singh and they were near the house of Dharmender and he (Mohit) saw Ajay and Suraj running towards the house of Dharmender as they were being chased by three youngsters on a bullet motorcycle.
Siddharth Mittal, counsel for the appellant appearing for Naresh @ Nehru Accused No.4, contended that the trial court and High Court had committed an error in convicting him without considering the statement of Mohit @ Kala in proper perspective whereunder he had not named the appellant and the CCTV footage did not conform to Section 65 B of the Indian Evidence Act which even otherwise did not reflect A-4’s of presence.
The bench noted that the High Court has held that every member had inhibited the common intention to accomplish the unlawful object.
The court observed that the prosecution had failed to prove that the appellants herein had shared a common object with other members of the alleged unlawful assembly. To convict a person under Section 149 IPC prosecution has to establish with the help of evidence that firstly, appellants shared a common object and were part of unlawful assembly and secondly, it had to prove that they were aware of the offences likely to be committed is to achieve the said common object. Both these ingredients are conspicuously absent and there is no evidence to connect the petitioners with the deceased or the co-accused.
The Apex Court viewed that the prosecution had failed to prove the guilt of the appellants herein beyond reasonable doubt, and non-consideration of the lacuna in the prosecution case in proper perspective by the Trial Court and the High Court as analysed hereinabove has resulted in miscarriage in the administration of justice namely conviction of the appellants which cannot be sustained.
The court acquitted the appellants of the offences alleged and ordered to be released forthwith if not required in any other case.