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Every member of unlawful assembly is considered to be guilty of offence committed in prosecution of common object. The basis of the constructive guilt under Section 149 of IPC is mere membership of the unlawful assembly with the requisite common object or knowledge and the same was upheld by High Court of Delhi through the learned bench led by Justice Subramonium Prasad in the case of VISHAL SINGH @ PAWAN vs. STATE (GOVT NCT) on 01.02.2022.

The facts of the case are that the complainant received a call from his son Asif informing him that a huge crowd of around 100 people had gathered near their house in support of NRC and CAA. The crowd entered their house after breaking open the locks, and set it on fire. The complainant’s family members and employees rushed to the top floor of the house and were later safely rescued from the roof of residence. Complainant’s mother, Smt. Akbari, who was 85 years old could not reach the rooftop due to her age and after extinguishing the fire, her body was found lying on a folding bed.

It is stated that the petitioner was arrested and has been in custody since then. The petitioner had filed three bail applications before the Court of Sessions and subsequently the same were dismissed by the Learned Judge of the Trial Court. Therefore, the petitioner seeks bail through the present petition.

The petitioner’s counsel contended that accused has been falsely implicated in the present matter and that there exists no evidence which can prove the connection of the Petitioner to the incident beyond reasonable doubt. He further submitted that the accused has no relation with any of the co-accused, the complainant and his family members and has no reason to cause them any harm. The petitioner’s counsel contended that the arrest was solely based on certain video clippings that showed him to be present in that area during the time of the incident and its credibility is yet to be determined. He submitted that the accused has deep roots in the society and there are no apprehensions against him for attempting to delay the trial/tamper with evidence.

The respondent’s counsel contended that the above incident was a pre-mediated crime. Further, he contended that ocular evidence is considered to be the best evidence unless there are grave reasons to question its credibility. Where there is substantial evidence present, the absence of an FSL report is considered as irrelevant. He submitted that the accused liable for the crime as every member of unlawful assembly is considered to be guilty of offence committed in prosecution of common object.

In view of the facts and circumstances of the cases, Court was of the opinion that the Petitioner is not to be granted bail as the petitioner does not satisfy the ingredients to claim bail on ground of parity with the other co-accused of the petitioner who were enlarged on bail. The Court observed that, “the basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge”.

Click here to read the Judgment

Judgment reviewed by – Shristi Suman