Summary
Three accused were acquitted of murder by the High Court because they had not struck blows, although they accompanied two axe-wielding assailants into the victim’s house at midnight while themselves armed. The Supreme Court held that the clear eyewitness evidence and coordinated armed entry established membership of an unlawful assembly sharing the murderous common object. Absence of an individual blow did not defeat vicarious liability, and their trial convictions were restored.
Issues
- Whether the absence of blows by three members defeated their liability for murder committed by the unlawful assembly.
- Whether the High Court’s doubt about their participation was supported by the evidence.
Held
- Membership of an unlawful assembly sharing the relevant common object can establish vicarious liability without proof that each member committed a separate overt act. Passive presence must be distinguished on the facts. (¶¶ 9, 10, 12)
- The armed midnight entry into the victim’s house established participation and common object. This was not a public-place encounter in which presence could plausibly be that of an innocent bystander. (¶¶ 11, 12, 13)
- Clear and cogent testimony of the victim’s wife and son left no basis for the High Court’s conjecture that the respondents were merely named with the assailants. (¶ 14)
Result
State appeals allowed. Acquittals of Killu alias Kailash, Devendra and Kailash Nayak were set aside and the trial court’s murder convictions and sentences restored. Surrender within three weeks was directed, failing which police were to arrest them and commit them to custody.