Supreme Court of India

NARESH @ NEHRUversusSTATE OF HARYANA

Citation: 2023 INSC 889
Decided: 9 October 2023
Disposal: Appeal(s) allowed
Bench: S RAVINDRA BHAT

Holding

The convictions under Section 302 read with Section 149 IPC were unsustainable because the eyewitness testimony and CCTV evidence were unreliable and the prosecution failed to establish a common object, leading to the appellants' acquittal.

Summary

The appellants were convicted under Section 302 read with Section 149 of the IPC for the murder of Ajay based primarily on the testimony of PW‑9, a cousin of the deceased, and a CCTV video. The Supreme Court examined the reliability of the eyewitness, finding his statements riddled with inconsistencies, no prior identification of the accused, and a failure to name them in the FIR. The Court also held that the CCTV footage was inadmissible because it was not properly authenticated under Section 65‑B of the Evidence Act and the faces of the alleged assailants were not discernible. Confessional statements recorded while the accused were in police custody were excluded under Sections 25 and 26 of the Evidence Act. The prosecution failed to prove a common object or the appellants' participation in the unlawful assembly required under Section 149 IPC. Consequently, the convictions were set aside and the appellants were acquitted.

Issues considered

The credibility and admissibility of PW‑9’s eyewitness testimony.
The admissibility of the CCTV video under Section 65‑B of the Evidence Act.
The effect of confessional statements made in police custody under Sections 25 and 26 of the Evidence Act.
Whether the prosecution proved a common object and participation of the appellants in an unlawful assembly under Section 149 IPC.

Legislation cited

Arms Act, 1959s. 25
Indian Evidence Act, 1872s. 25, s. 26, s. 3, s. 65-B
Indian Penal Code, 1860s. 141, s. 148, s. 149, s. 302, s. 307
Juvenile Justice (Care and Protection of Children) Act, 2015

Subjects

eyewitness testimonysection 149 IPCcommon objectevidence actconfession inadmissibilityCCTV evidencemiscarriage of justiceacquittal

Judgment

[2023] 13 S.C.R. 771 : 2023 INSC 889

CASE DETAILS

NARESH @ NEHRU
v.
STATE OF HARYANA
(Criminal Appeal No. 1786 of 2023)
OCTOBER 09, 2023
[S. RAVINDRA BHAT AND ARAVIND KUMAR, JJ.]
HEADNOTES
Issue for consideration: Conviction of the appellants for oﬀences
punishable u/s.302 r/w s.149, IPC based on the statement of PW-9, as an
eyewitness to the crime, if justiﬁed.
Evidence – Of eyewitness – When not to be relied upon:
Held: Evidence of the eye-witness should be of very sterling quality
and calibre and it should not only instil conﬁdence in the court to accept
the same but it should also be a version of such nature that can be accepted
at its face value – In the present case, testimony of PW-9 (cousin of the
deceased) was shrouded with inconsistencies and he had not named the
appellants in the FIR – Contradictions in PW-9’s statement were glaring –
Prosecution failed to prove the guilt of the appellants beyond reasonable
doubt – Non-consideration of the lacuna in the prosecution case in proper
perspective by the Trial Court and the High Court resulted in miscarriage of
justice – Conviction of the appellants unsustainable – Judgment of Courts
below set aside – Appellants acquitted of the oﬀences alleged. [Paras 9.1-
9.3, 10 and 11]
Evidence – CCTV footage – Reliance placed to convict the
appellants and co-accused persons, if proper:
Held: Said evidence could not have been relied upon as it was infested
with serious doubts and the very manner in which it came into existence
itself raised a serious doubt not only about its source but also about the
presence of the appellants at the scene of crime – PW-8 who made a video
from his mobile phone of the CCTV footage on 22.04.2016 claimed to
771
772 SUPREME COURT REPORTS [2023] 13 S.C.R.

have handed over the recorded CD (Ex.P.3) to the police on 01.06.2016 –
However, the video (CD) was not forwarded by the police to the Forensic
Science Laboratory – PW-8 claims to have downloaded the video from his
mobile phone and transferred to his laptop and then prepared CD (Ex.P.3)
– Neither laptop nor mobile phone was produced by prosecution or had
been seized by the police during the course of investigation – Trial court’s
conclusion is based on inconsistent evidence and there is lack of clarity in
the evidence of PW.8 – He identiﬁed his signature on the certiﬁcate Ex.
P-L (furnished as required u/s.65-B, Evidence Act) which was prepared by
police oﬃcial who was not examined – Further, Ex.P.3 was played in the trial
court and the Sessions Judge recorded that from the video clips the faces of
assailants and complainants were not decipherable – PW-8 admitted in his
cross-examination that certiﬁcate Ex.PL was prepared by a police oﬃcial,
and he had aﬃxed his signature to Ex.PL – He also admitted that faces of
the assailants were not visible and identiﬁable and the registration numbers
of the motorcycles were also not visible – Investigating Oﬃcer (PW-15)
also admitted in his cross-examination that faces of the accused are not
identiﬁable from the video – The said video according to PW-8 was taken
from the CCTV camera located in the house of ‘D’ who was never cited as
a witness by the prosecution – Evidence Act, 1872 – s.65-B. [Paras 9.4, 9.5]
Evidence Act, 1872 – ss.25, 26 – Confessional statement of the
accused and co-accused were recorded when they were in police custody:
Held: Such confessional statements would become inadmissible
having regard to the provisions of ss.25, 26 – s.25 makes it clear that no
confession made to a police oﬃcer shall be proved as against a person
accused of any oﬀence – Likewise, s.26 states that any such statement is
inadmissible if given while in police custody. [Para 9.6]
Penal Code, 1860 – s.149:
Held: In order to attract s.149, 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 – Inference of a common
object has to be drawn from various factors such as the weapons with which
NARESH @ NEHRU v. STATE OF HARYANA 773

the members were armed, their movements, the acts of violence committed
by them, and the end result – In the present case, High Court held that every
member had inhibited the common intention to accomplish the unlawful
object – On facts, the motive alleged was a quarrel that ensued between one
‘R’ and ‘N’ with ‘A’ (the deceased) and ‘S’ on the day of Dulhandi and ‘R’
was said to have threatened to kill ‘A’ – This factor clearly discloses that
the appellants herein were not involved in the ﬁght that occurred on the day
of Dulhandi and as such no motive could be attributed to the appellants –
Prosecution failed to prove that the appellants shared a common object with
other members of the alleged unlawful assembly – There is no evidence to
connect the appellants with the deceased or the co-accused – No overt act
was attributed to the appellants – PW-9 admitted in his cross-examination
that none of the accused except ‘P’ had caused injury to the deceased and
there was only a single shot ﬁred from the pistol. [Para 10]

LIST OF CITATIONS AND OTHER REFERENCES

Rai Sandeep @ Deepu alias Deepu v. State (NCT of Delhi) (2012) 8
SCC 21 : [2012] 6 SCR 1153; Mehboob Ali & Another v. State of Rajasthan
(2016) 14 SCC 640 : [2015] 10 SCR 553; Indra Dalal v. State of Haryana
(2015) 11 SCC 31 : [2015] 7 SCR 1083; Roy Fernandes v. State of Goa
and Others (2012) 3 SCC 221: [2012] 1 SCR 477 – relied on.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1786 of 2023.
From the Judgment and Order dated 09.01.2020 of the High Court of
Punjab & Haryana at Chandigarh in CRAD No.1063 of 2017.
With
Criminal Appeal Nos.1787-1788 of 2023.
Appearances:
Siddharth Mittal, Prabhat Kumar, Vaibhav Tomar, Mrs. Shilpa G Mittal,
Soumik Ghosal, Vikas Walia, Syed M Shoeb, Ms. Drishti Harpalani, Gaurav
Singh, Advs. for the Appellant.
774 SUPREME COURT REPORTS [2023] 13 S.C.R.

Mrs. Manisha Aggarwal Narain, AAG, Samar Vijay Singh, Keshav
Mittal, Ms. Sabarni Som, Sandeep Singh Somaria, Shivangi G., Advs. for
the Respondent.

JUDGMENT / ORDER OF THE SUPREME COURT

JUDGMENT
ARAVIND KUMAR, J.
1. Judgment dated 09-01-2020 rendered in Criminal Appeal Nos.1063
of 2017, 997 & 1043 of 2017 by the High Court of Punjab and Haryana,
Judicature at Chandigarh is under challenge in these appeals, whereunder
the accused Nos.4, 5 and 6 (appellants herein) who were convicted for the
oﬀences punishable under Section 302 read with Section 149 of the Indian
Penal Code (for short ‘IPC’) by the Sessions Court came to be aﬃrmed.
GIST OF PROSECUTION CASE:
2. On 22-04-2016, 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. It was also stated by Mohit @ Kala that bullet motorcycle
was being driven by Ravi, Shoaib Khan was the pillion rider and one
unknown person was sitting behind them. It was further stated that two
more motorcycles having two riders each, with batons in their hands were
following the Bullet motorcycle. It was also alleged that unknown person
sitting on the Bullet motorcycle got down and ﬁred at Ajay with country-
made revolver, which hit his head and Ajay fell in front of the house of
Dharmender. Suraj hid in Dharmender’s house and on raising the alarm the
assailants sped away on their motorcycles towards Bhiwadi; it is also stated
by Mohit @ Kala that injured Ajay was shifted to the hospital; it is further
stated that Ravi was studying in his school and was his junior and he used
to bully and threaten all. Mohit also stated that Ajay and Suraj had a ﬁght
NARESH @ NEHRU v. STATE OF HARYANA 775
[ARAVIND KUMAR, J.]

with Ravi on the day of ‘Dulhandi’ and he had threatened to kill them and
Ravi along with his companions had ﬁred at Ajay with intend to kill him.
Based on the said statement FIR under Sections 148, 149, 307 of IPC and
Section 25 of the Arms Act came to be registered and on the death of Ajay
(on 23-04-2016) Section 302 of IPC was substituted in place of Section 307
IPC and accused persons were apprehended; on the disclosure statement
of ﬁrst accused (Pawan) country made pistol was recovered and as per the
statement of accused No.2 (Dharmender) wooden stick was recovered apart
from four motorcycles. One of the accused-Shoaib was produced before
the Juvenile Justice Board and Ravi was tried by the Children’s Court under
the provisions of the Juvenile Justice (Care and Protection of Children)
Act, 2015. The charge was framed against six accused persons and in all
18 witnesses were examined on behalf of the prosecution. The statements
of the accused under Section 313 of the Code of Criminal Procedure (for
short ‘Cr.P.C.’) came to be recorded and the accused having denied the
incriminating material appearing in evidence against them, had pleaded
not guilty. After hearing the learned advocates appearing for the accused
persons and the public prosecutor and on appreciation of the evidence laid
before the court, the learned Sessions Judge by judgment dated 06-10-2017
convicted the accused persons for the oﬀences already noticed hereinabove
and said order of conviction and sentence imposed came to be aﬃrmed by
the High Court under the impugned order vide judgment dated 09-01-2020.
Hence, these appeals have been preferred by accused Nos.4 to 6.
3. We have heard Mr. Siddharth Mittal and Mr. Vikas Walia, learned
Advocates appearing for the accused-appellants in Criminal Appeal
Nos.1786 of 2023 and 1787-1788 of 2023 respectively, and Ms. Manisha
Aggarwal Narain, learned Additional Advocate General appearing for the
State of Haryana, Respondent.
SUBMISSIONS ON BEHALF OF THE APPELLANTS:
4. Mr. Siddharth Mittal, learned counsel for the appellant appearing
for Naresh @ Nehru Accused No.4, contends that the trial court and High
Court had committed an error in convicting him without considering the
statement of Mohit @ Kala (PW-9) 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
776 SUPREME COURT REPORTS [2023] 13 S.C.R.

of presence. He also contends that no Test Identiﬁcation Parade (TIP ‘for
short’) was conducted, and PW-9 had only identiﬁed this accused (A-4)
in the court. Mr. Mittal learned counsel would also contend that said
witness (PW-9) was shocked or perplexed when his statement came to
be recorded as admitted by him and reliance could not have been placed
on said evidence for convicting the appellant. He would further contend
that A-4 had no common object to share with the main accused, Pawan
(PW-1), who is said to have ﬁred at Ajay (deceased). Mr. Mittal, learned
counsel would also contend that PW-9 was an interested witness as he
was a close relative of the deceased, and various discrepancies, including
the improvement in his statement made before court, ought to have been
the ground to summarily brush aside his testimony. Mr. Mittal, learned
advocate would point out that discrepancies in PW-9’s statement had
clearly surfaced which was evident from his admission of not informing
the police about the Splendor vehicle being driven by the appellant
and this fact was conveniently ignored by the courts below. Mr. Mittal,
learned counsel would also contend that CCTV footage relied upon by
prosecution was recorded on a mobile phone by PW-8 and converted into
a CD, which was not in conformity with Section 65B of the Evidence Act
and it was allegedly recorded on 26.04.2016 but handed over to the police
on 01.06.2016 and during this interregnum period the possibility of said
recording being tampered could not have been ruled out. Even otherwise
the face of the assailants was not identiﬁable in the CCTV footage as found
by the trial court itself and, therefore, no inference could have been drawn
to implicate the appellant(A-4).
5. He would contend that the alleged motive attributed to the accused
persons is due to a quarrel that had ensued between the deceased, Suraj,
Ravi, and Nabbu on the day of Dulhandi and there was no evidence placed
on record by prosecution to suggest any common object had been shared by
the appellants with other accused persons. He would contend that appellant
has not been alleged to have been armed with any weapon, so no inference
could have been drawn about the common object to commit the oﬀence.
He would submit that the reasoning adopted by the courts below to convict
the accused by overlooking the fact that TIP had not been conducted and
only on the ground of PW-9 having known the remaining accused by face
before the incident was erroneous, though the testimony of PW-9 would
NARESH @ NEHRU v. STATE OF HARYANA 777
[ARAVIND KUMAR, J.]

suggest that accused persons were not previously known to him and his
admission in evidence that came to know about them only when they
were arrested and their names were published in the newspaper. The non-
disclosure of the names of the accused persons at the ﬁrst instance creates
reasonable doubts as to the appellant’s identity. The learned counsel for the
appellant (A-4) would also contend that there was unexplained delay in
recording PW-9’s statement, namely it was recorded at 11:30 p.m., despite
the incident having taken place at 6:30 p.m. and PW-9 was present during
this period. The alleged confessional statement of the appellant is of no
value in the light of Section 25 of the Evidence Act and said statement
does not indicate any common object having been shared by the appellant
with other assailants. Hence, he prays for his appeal being allowed and
the appellant (A-4) being acquitted.
6. Mr. Vikas Walia, learned counsel appearing for the appellants,
namely, Irshad and Sonu Kumar (accused numbers 5 and 6 respectively) in
Criminal Appeal Nos.1787-1788 of 2023, contends that courts below had
erred in not considering the fact that a person liable for being punished for
the oﬀence of being a member of an unlawful assembly under Section 149
IPC would be necessary to prove that such persons had acted in pursuance
of a common object. He would further contend that prosecution had failed
to prove that appellants were aware of Pawan’s (Accused No.1) possessing
the pistol and he had the intention/object to kill Ajay and such intention
could not be inferred. He would contend that appellants’ involvement in
the unlawful assembly and sharing a common object to kill Ajay could
not be inferred in the circumstances of the case, particularly when there
was no evidence to support the stand of the prosecution that appellants
were aware of pistol being in possession of Pawan (A-1).
7. He would further contend that the prosecution failed to prove
that the members of the unlawful assembly had assembled to accomplish
the common object of killing Ajay, as attributed to them. There was no
evidence suggesting a sharing of common object between the accused.
The CCTV footage, which was relied upon by the prosecution, does not
inspire conﬁdence to accept the story of the prosecution, since, faces
appearing in the video was not clear and this itself would be a good
ground to allow appeals and set aside the conviction of the appellants.
778 SUPREME COURT REPORTS [2023] 13 S.C.R.

He would also contend that appellants were not residents of the village
where the incident took place and there is no whisper in the statement
of PW-9 recorded under Section 161 of Cr.P.C. on this aspect. Hence, he
prays for appeal preferred by A-5, and A-6 be allowed by setting aside
the impugned judgment.
ANALYSIS AND CONCLUSION:
8. Having heard the learned counsels appearing for the parties and on
perusal of the judgments of the courts below, it would emerge therefrom,
that conviction of all the accused is based on the testimony of PW-9 and
recovery of the motor-cycles and the motive for the crime attributed by PW-9
in his statement recorded on the date of incident. In this background, we
have perused the judgments of the courts below by bestowing our anxious
consideration to the rival contentions raised at the Bar.
9. At the outset, it requires to be noticed that motive that has been
attributed against the accused persons for the killing of Ajay was, he (Ajay)
and Suraj had a ﬁght with Ravi on the day of Dulhandi, where Ravi had
threatened to kill them and in furtherance of said threat, he is said to have
come along with other co-accused, and a person sitting on the bullet motor-
cycle had ﬁred at Ajay from the pistol, while Ravi was driving the Bullet
motorcycle. PW-9 had also deposed that Ajay was in the company of Suraj,
who ran alongside the deceased and hid himself in Dharmender’s house.
However, the police did not record the statement of Suraj, and he was not
even cited as a witness on behalf of the prosecution. This would be the ﬁrst
gap in the prosecution story or a defective investigation.
9.1 The prosecution relied on Statement of Mohit @ Kala (PW-
9) and courts below accepted him as a star witness to convict the
accused. PW-9’s testimony was shrouded with inconsistencies and
he had not named the appellants in the FIR and had failed to identify
Naresh @ Nehru as the driver of the Splendor motorcycle. He had identiﬁed
Irshad and Sonu Kumar in court but had not named them in his statement
Ex.PM made before police. In his cross-examination, PW-9 admitted of not
informing the police about the Pulsar motorcycle and two other Splendor
motorcycles. He stated in his statement Ex.PM that victim Ajay and his
friend Suraj were being chased by three motorcycles, namely Bullet,
Splendor and Pulsar motorcycles respectively. However, in the statement
NARESH @ NEHRU v. STATE OF HARYANA 779
[ARAVIND KUMAR, J.]

made before the court, he improvised his version by deposing that the victim
was being chased by four motorcycles. In the cross-examination, PW-9
admitted to have informed the police about deceased having been chased
by four motorcycles and reiterated the contents of his statement in Ex.PM
as true. These inconsistencies give rise to suspicion and raises doubt in the
prosecution story.
9.2 PW-9 had named only Ravi and Shoaib in his statement Ex.PM,
and for the ﬁrst time before court he had identiﬁed Naresh (A-4), Irshad
and Sonu (A-9 and A-6). He admitted in his cross-examination that he only
knew Ravi and Shoaib before the incident, and had known about the names
of the other accused persons when they were arrested. This raises doubts
about PW-9’s presence at the scene of the incident itself. Undisputedly
no recovery was made from Irshad and Sonu. Contradictions in PW-9’s
statement is glaring. In his deposition he admits his statement was written by
the police at 10:45 PM on 22.04.2016, whereas PW-12 (ASI Ram Kishan)
deposed that written statement EX.PM was handed over to the police by
the complainant’s party at 11:30 PM on 22.04.2016. PW-9 and also deposes
that police arrived at the scene of crime between 10:30-11:00 PM, creating
serious doubt about the recording of PW-9’s statement at the place of crime
as claimed by the prosecution.
9.3 As noticed hereinabove, the evidence of the eye-witness should be
of very sterling quality and calibre and it should not only instil conﬁdence
in the court to accept the same but it should also be a version of such nature
that can be accepted at its face value. This Court in the case of Rai Sandeep
@ Deepu alias Deepu Vs. State (NCT of Delhi) (2012) 8 SCC 21 has held:
“22. In our considered opinion, the “sterling witness” should be of
very high quality and caliber whose version should, therefore, be
unassailable. The court considering the version of such witness should
be in a position to accept it for its face value without any hesitation.
To test the quality of such a witness, the status of the witness would
be immaterial and what would be relevant is the truthfulness of the
statement made by such a witness. What would be more relevant would
be the consistency of the statement right from the starting point till the
end, namely, at the time when the witness makes the initial statement
and ultimately before the court. It should be natural and consistent
780 SUPREME COURT REPORTS [2023] 13 S.C.R.

with the case of the prosecution qua the accused. There should not
be any prevarication in the version of such a witness. The witness
should be in a position to withstand the cross-examination of any
length and howsoever strenuous it may be and under no circumstance
should give room for any doubt as to the factum of the occurrence,
the persons involved, as well as the sequence of it. Such a version
should have co-relation with each and every one of other supporting
material such as the recoveries made, the weapons used, the manner
of oﬀence committed, the scientiﬁc evidence and the expert opinion.
The said version should consistently match with the version of every
other witness. It can even be stated that it should be akin to the test
applied in the case of circumstantial evidence where there should not
be any missing link in the chain of circumstances to hold the accused
guilty of the oﬀence alleged against him. Only if the version of such a
witness qualiﬁes the above test as well as all other such similar tests
to be applied, can it be held that such a witness can be called as a
“sterling witness” whose version can be accepted by the court without
any corroboration and based on which the guilty can be punished. To
be more precise, the version of the said witness on the core spectrum
of the crime should remain intact while all other attendant materials,
namely, oral, documentary and material objects should match the
said version in material particulars in order to enable the court trying
the oﬀence to rely on the core version to sieve the other supporting
materials for holding the oﬀender guilty of the charge alleged.”
PW-9, the cousin of the deceased, was examined as an eyewitness to
the crime. However, the presence of PW-9 at the scene raises doubt due to
contradictions. Although Suraj, who was also the deceased’s cousin, was
accompanying the deceased, PW-9 never tried to contact him to ascertain
the names of the accused persons. This raises a serious doubt about his
presence that has been ignored by the courts below. The presence of PW-9
at the scene raises doubts and raises questions about the veracity of his
evidence. This is the second lacunae in the prosecution case.
9.4 The courts below have relied on CCTV footage to convict the
appellants and co-accused persons. However, we are of the considered
view that said evidence could not have been relied upon, as it was infested
NARESH @ NEHRU v. STATE OF HARYANA 781
[ARAVIND KUMAR, J.]

with serious doubts and the very manner in which it came into existence
itself would raise a serious doubt not only about its source but also raises
a serious doubt about the presence of the appellants at the scene of crime.
PW-8, who made a video from his mobile phone of the CCTV footage on
22.04.2016 and has claimed to have handed over the recorded CD (Ex.P.3) to
the police on 01.06.2016. However, the video (CD) has not been forwarded
by the police to the Forensic Science Laboratory. He (PW-8) claims to
have downloaded the video from his mobile phone and transferred to his
laptop and then prepared CD (Ex.P.3). Neither laptop nor mobile phone
was produced by prosecution or had been seized by the police during the
course of investigation. The trial court’s conclusion is based on inconsistent
evidence and there is lack of clarity in the evidence of PW.8. He has identiﬁed
his signature on the certiﬁcate Ex. P-L (furnished as required under Section
65-B of the Evidence Act) which certiﬁcate was prepared by police oﬃcial
Mr. Aman and he has not been examined. The CD(Ex.P.3) was played in
the trial court and observation recorded by Sessions Judge which is to the
following eﬀect would acquire great signiﬁcance.
“COURT OBSERVATION:- from the video clips the faces of assailants
and complainants are not decipherable.”
(Emphasis supplied by us)
9.5 He (PW-8) admits in his cross-examination that certiﬁcate Ex. PL
was prepared by a police oﬃcial, and he (PW-8) had aﬃxed his signature
to Ex.PL. He also admits that faces of the assailants are not visible and
identiﬁable and the registration numbers of the motorcycles are also not
visible. It is pertinent to note at this juncture itself that Investigating Oﬃcer
(PW-15) also admits in his cross-examination that faces of the accused
are not identiﬁable from the video. The said video according to PW-8 was
taken from the CCTV camera located in the house of Dharmendra and he
(Dharmendra) was never cited as a witness by the prosecution. This is the
third stage of the deﬁcient investigation and blame has to be necessarily
laid at their door and the beneﬁt of the doubt has to be extended to the
accused persons.
9.6 The confessional statement of the accused and co-accused came to
be recorded when they were in police custody. This court in Mehboob Ali
& Another Vs. State of Rajasthan (2016) 14 SCC 640 has held:
782 SUPREME COURT REPORTS [2023] 13 S.C.R.

“12. Section 25 of the Evidence Act provides that no confession
made to a police oﬃcer shall be proved as against a person accused
of any oﬀence. Section 26 provides that no confession made by any
person while he is in the custody of a police oﬃcer, unless it be
made in the immediate presence of a Magistrate, shall be proved
as against such person. Section 27 is in the form of a proviso, it
lays down how much of an information received from accused
may be proved.
13. For application of Section 27 of the Evidence Act, admissible
portion of confessional statement has to be found as to a fact which
were the immediate cause of the discovery, only that would be part
of legal evidence and not the rest. In a statement if something new
is discovered or recovered from the accused which was not in the
knowledge of the police before disclosure statement of the accused
is recorded, is admissible in the evidence.
14. Section 27 of the Evidence Act refers when any “fact” is
deposed. Fact has been deﬁned in Section 3 of the Act. Same is
quoted below:
“‘Fact’.— ‘Fact’ means and includes—
(1) any thing, state of things, or relation of things, capable of being
perceived by the senses;
(2) any mental condition of which any person is conscious.
Illustrations
(a) That there are certain objects arranged in a certain order in a certain
place, is a fact.
(b) That a man heard or saw something, is a fact.
(c) That a man said certain words, is a fact.
(d) That a man holds a certain opinion, has a certain intention, acts
in good faith or fraudulently, or uses a particular word in a particular
sense, or is or was at a speciﬁed time conscious of a particular
sensation, is a fact.
(e) That a man has a certain reputation, is a fact.
NARESH @ NEHRU v. STATE OF HARYANA 783
[ARAVIND KUMAR, J.]

‘Relevant’.—One fact is said to be relevant to another when the
one is connected with the other in any of the ways referred to in
the provisions of this Act relating to the relevancy of facts.”
In the instant case, 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. Likewise, Section 26 states that any such statement is
inadmissible if given while in police custody. For this proposition, the
judgment of this Court in Indra Dalal vs. State of Haryana (2015) 11
SCC 31 can be looked up.
10. As already noticed hereinabove prosecution has attempted to
drive home the guilt of the accused based on accused persons having
shared a common object, by pressing into service Section 149 of IPC.
This provision does not create a separate oﬀence but only declares
vicarious liability of all members of unlawful assembly for acts done
in common object. Thus, 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. This court in Roy Fernandes vs. State of
Goa and Others (2012) 3 SCC 221 has held:
“18. That leaves us with the question whether the commission
of murder by a member of an unlawful assembly that does not
have murder as its common object would attract the provisions of
Section 149 IPC?
19. Section 149 IPC reads:
784 SUPREME COURT REPORTS [2023] 13 S.C.R.

“149. Every member of unlawful assembly guilty of oﬀence committed
in prosecution of common object.—If an oﬀence is committed by any
member of an unlawful assembly in prosecution of the common object
of that assembly, or such as the members of that assembly knew to
be likely to be committed in prosecution of that object, every person
who, at the time of the committing of that oﬀence, is a member of the
same assembly, is guilty of that oﬀence.”
A plain reading of the above would show that the provision is in two
parts. The ﬁrst part deals with cases in which an oﬀence is committed
by any member of the assembly “in prosecution of the common
object” of that assembly. The second part deals with cases where the
commission of a given oﬀence is not by itself the common object of
the unlawful assembly but members of such assembly “knew that the
same is likely to be committed in prosecution of the common object
of the assembly”.
20. As noticed above, the commission of the oﬀence of murder of Felix
Felicio Monteiro was itself not the common object of the unlawful
assembly in the case at hand. And yet the assembly was unlawful
because from the evidence adduced at the trial it is proved that the
common object of the persons comprising the assembly certainly was
to either commit a mischief or criminal trespass or any other oﬀence
within the contemplation of clause (3) of Section 141 IPC, which
may to the extent the same is relevant for the present be extracted at
this stage:
“141. Unlawful assembly.—An assembly of ﬁve or more persons is
designated an ‘unlawful assembly’, if the common object of the persons
composing that assembly is—
First.—***
Second.—***
Third.—To commit any mischief or criminal trespass, or other oﬀence;”
21. From the evidence on record, we are inclined to hold that even
when commission of murder was not the common object of the accused
persons, they certainly had come to the spot with a view to overawe
NARESH @ NEHRU v. STATE OF HARYANA 785
[ARAVIND KUMAR, J.]

and prevent the deceased by use of criminal force from putting up the
fence in question. That they actually slapped and boxed the witnesses,
one of whom lost his two teeth and another sustained a fracture only
proves that point.
22. What then remains to be considered is: whether the appellant as a
member of the unlawful assembly knew that the murder of the deceased
was also a likely event in prosecution of the object of preventing him
from putting up the fence? The answer to that question will depend
upon the circumstances in which the incident had taken place and
the conduct of the members of the unlawful assembly including the
weapons they carried or used on the spot. It was so stated by this Court
in Lalji v. State of U.P. [(1989) 1 SCC 437 : 1989 SCC (Cri) 211] in
the following words: (SCC p. 441, para 8)
“8. … Common object of the unlawful assembly can be gathered from
the nature of the assembly, arms used by them and the behaviour of
the assembly at or before scene of occurrence. It is an inference to be
deduced from the facts and circumstances of each case.”
23. The Court elaborated the above proposition in Dharam Pal v. State
of U.P. [(1975) 2 SCC 596 : 1975 SCC (Cri) 704] as: (SCC p. 603,
para 11)
“11. Even if the number of assailants could have been less than ﬁve
in the instant case (which, we think, on the facts stated above, was
really not possible), we think that the fact that the attacking party was
clearly shown to have waited for the buggi to reach near the ﬁeld of
Daryao in the early hours of 7-6-1967, shows pre-planning. Some
of the assailants had sharp-edged weapons. They were obviously
lying in wait for the buggi to arrive. They surrounded and attacked
the occupants shouting that the occupants will be killed. We do not
think that more convincing evidence of a preconcert was necessary.
Therefore, if we had thought it necessary, we would not have hesitated
to apply Section 34 IPC also to this case. The principle of vicarious
liability does not depend upon the necessity to convict a required
number of persons. It depends upon proof of facts, beyond reasonable
doubt, which makes such a principle applicable. (See Yeshwant v. State
of Maharashtra [(1972) 3 SCC 639 : 1972 SCC (Cri) 684] and Sukh
786 SUPREME COURT REPORTS [2023] 13 S.C.R.

Ram v. State of U.P. [(1974) 3 SCC 656 : 1974 SCC (Cri) 186] ) The
most general and basic rule, on a question such as the one we are
considering, is that there is no uniform, inﬂexible, or invariable rule
applicable for arriving at what is really an inference from the totality
of facts and circumstances which varies from case to case. We have
to examine the eﬀect of ﬁndings given in each case on this totality.
It is rarely exactly identical with that in another case. Other rules
are really subsidiary to this basic verity and depend for their correct
application on the peculiar facts and circumstances in the context of
which they are enunciated.”
In the instant case by the impugned order, the High Court has held
that every member had inhibited the common intention to accomplish the
unlawful object. The facts on hand would disclose that the motive alleged
was a quarrel that ensued between Ravi and Nabbu with Ajay and Suraj
on the day of Dulhandi and Ravi is said to have threatened to kill Ajay.
This factor would clearly disclose that the appellants herein were not
involved in the ﬁght that occurred on the day of Dulhandi and as such no
motive could be attributed to the appellants. 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. Undisputedly, no overt
act has been attributed to the appellants, and in unequivocal terms PW-9
admits in his cross-examination that none of the accused except Pawan
had caused injury to the deceased and there was only a single shot ﬁred
from the pistol. Hence, we are of the considered view 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.
NARESH @ NEHRU v. STATE OF HARYANA 787
[ARAVIND KUMAR, J.]

11. Resultantly, the appeals are allowed and the judgment passed by
the Sessions Court in SC No.21 of 2016 dated 09.05.2017 as aﬃrmed by the
High Court of Punjab and Haryana at Chandigarh in CRA-D Nos.1063 of
2017, 997 of 2017 and 1043 of 2017 are hereby set aside and consequently
appellants are acquitted of the oﬀences alleged and are ordered to be released
forthwith if not required in any other case.

Headnotes prepared by: Appeals allowed.
Divya Pandey

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