The Allahabad High Court has acquitted two accused in a nearly 4-decade-old murder case while obseving that mere nomination in the FIR could not sustain their conviction under Section 149 IPC when the prosecution had failed to establish that they were part of the alleged unlawful assembly or they shared its common object.

A Bench of Justice Salil Kumar Rai and Justice Padam Narain Mishra thus allowed the appeal filed by Nagendra and Jugendra and set aside their conviction and sentence.

The accused-appellants were among 8 accused convicted by the trial court for offences under Sections 147, 148, 302/149, 325/149 and 323/149 IPC. During the pendency of the appeal, the proceedings abated against the other 6 accused following their deaths.

According to the prosecution's case, there was prior enmity between the accused and the complainant over pending litigation. On the day of the incident, the accused allegedly assembled near a house, armed with lathis, spears, spades and a gandasa.

They purportedly assaulted Om Pal Singh, who later succumbed to his injuries. His family members allegedly reached the spot to rescue him and they were also assaulted.

While examining the case against the surviving appellants, the High Court noted that although the accused-appellants [Nagendra and Jugendra] were named in the FIR, no specific role or overt act was attributed to either of them.

"…mere nomination in the FIR, by itself, cannot establish their guilt", the bench remarked.

It further noted that no particular weapon was attributed to either appellant and that the trial evidence did not disclose any specific overt act on their part.

The Court also noted another weakness in the prosecution's evidence, as of the 5 witnesses of fact examined by the prosecution, only the informant supported its version, while the remaining witnesses were declared hostile.

An injured witness (PW-2 Satendra) stated that several persons were assaulting each other when he reached the spot. He could not identify which persons were carrying which weapons or who had assaulted him.

PW-3 Rajpal also did not support the prosecution case. Significantly, PW-5 Gyan Devi, wife of the deceased and an alleged injured witness also failed to identify the assailants and stated that she did not know who had killed her husband.

Referring to Section 149 IPC, the bench noted that this provision creates constructive or vicarious criminal liability.

However, the Court clarified that before such liability can be imposed, the prosecution must establish beyond reasonable doubt the existence of an unlawful assembly under Section 141 IPC, the accused's membership of that assembly and the requisite common object or knowledge contemplated under Section 149 IPC.

In this regard, the High Court relied upon the Supreme Court's judgments in Kuldip Yadav & Ors. v. State of Bihar 2011 and Ramachandran v. State of Kerala 2011, wherein it was concluded that mere presence at the place of occurrence or mere membership of a group is not sufficient to attract Section 149 IPC.

"…before fastening constructive liability upon an accused under Section 149 IPC, the Court must be satisfied that the prosecution has established, beyond reasonable doubt, not only his membership of the alleged unlawful assembly but also the existence of the requisite common object or the knowledge contemplated by Section 149 IPC. Mere presence, without more, cannot be treated as sufficient to attract such vicarious criminal liability", the High Court reiterated.

Returning to the facts of the present case, the High Court found that the trial court had not even recorded a clear finding on the existence of an unlawful assembly in the first place. It observed thus:

"There is no discussion as to how the assembly constituted an unlawful assembly within the meaning of Section 141 IPC, what was the common object of the assembly, when and where such common object was formed, and in what manner the surviving appellants shared or were proved to have shared such common object".

The High Court further found that the trial court had not examined the individual circumstances connecting Nagendra and Jugendra with the alleged unlawful assembly.

The Court held that mere nomination as an accused, without reliable evidence establishing membership of the unlawful assembly and sharing of its common object, cannot by itself sustain conviction under Section 149 IPC. The Bench held:

"...the evidence on record does not satisfactorily establish the presence and participation of the surviving appellants as members of the alleged unlawful assembly or their sharing of the common object so as to attract constructive liability under Section 149 IPC".

Holding that the conviction under Section 149 IPC could not be sustained, the Court allowed the appeal. The conviction was thus set aside and they were acquitted.

Counsel for Appellant(s) : Aryan Srivastava(a.c), Hemendra Pratap Singh, P.n. Misra

Counsel for Respondent(s) : Anil Mullick, Dga

Case title - Suresh and 7 others vs State of UP 2026 LiveLaw (AB) 609

Case Citation: 2026 LiveLaw (AB) 609

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