Zainul vs. The State Of Bihar

2025 INSC 1192
REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1187 OF 2014
(Arising out of SLP (Crl.) No. 740 of 2014)

ZAINUL …APPELLANT

VERSUS

THE STATE OF BIHAR …RESPONDENT


WITH
CRIMINAL APPEAL NO. 1188 OF 2014
(Arising out of SLP (Crl.) No. 726 of 2014)


SATTAR & ORS. …APPELLANTS

VERSUS

THE STATE OF BIHAR …RESPONDENT

Signature Not Verified

Digitally signed by
VISHAL ANAND
Date: 2025.10.07
17:08:18 IST
Reason:
J U D G M E N T



J.B. PARDIWALA, J.
For the convenience of exposition, this judgment is divided into the
following parts:-
INDEX

I. CASE OF THE PROSECUTION ...................................................... 2
a. Oral Evidence on Record ........................................................................ 11
b. Judgment of the Trial Court ................................................................... 20
II. IMPUGNED JUDGMENT ............................................................ 28
III. SUBMISSIONS ON BEHALF OF APPELLANT .............................. 31
IV. SUBMISSIONS ON BEHALF OF THE RESPONDENT-STATE ........ 36
V. ANALYSIS ................................................................................. 39
A. Interpretation of Section 149 of the Indian Penal Code .......... 40
a. Innocent Bystander v/s Member of an Unlawful Assembly .................. 47
i. Rule of Prudence in Convicting Members of an Unlawful Assembly ......... 48
b. Principles of Law relating to Appreciation of Evidence of the Witnesses 58
i. Conflict between the Ocular Version and the Medical Evidence .............. 62
c. Whether the Prosecution could be said to have proved its case Beyond
Reasonable Doubt? ................................................................................. 67
B. Whether the Statement of the PW-20 could have been treated as
an FIR? ...................................................................................... 69
VI. CONCLUSION ........................................................................... 74




Criminal Appeal No. 1187-1188 of 2014 Page 1 of 74


1. Since the issues raised in both the captioned appeals are the same,
the appellants are co-convicts and the challenge is also to the self-
same judgment and order passed by the High Court, those were
taken up for hearing analogously and are being disposed of by this
common judgment and order.

2. These appeals arise from the common judgment and order passed by
the High Court of Judicature at Patna dated 17.07.2013 in Criminal
Appeal (DB) No. 202 of 1990 (hereinafter, “ the impugned
judgment ”), by which the High Court dismissed the appeal preferred
by the appellants herein and thereby affirmed the judgment and
order of conviction passed by the Trial Court in Sessions Case No.
124 of 1989 holding the appellants herein guilty of the offence of
murder punishable under Section 302 read with Section 149 of the
Indian Penal Code, 1860 (for short, “ the IPC ”).
I. CASE OF THE PROSECUTION
3. It appears from the materials on record that the investigating officer
recorded the statement of one Jagdish Mahato (PW-20), an injured
eyewitness, dated 20.11.1988, while he was admitted in the hospital,
which later came to be reduced in the form of a first information
report (Ext. 7). The statement of the PW-20 recorded by the
investigating officer dated 20.11.1988 reads thus:
“ ST No. 124/89
5055
16.2.90
Statement of Jagadish Mahato, S/o- Jamun Mahato,
R/o-Raharkhal, PS- Ajam Nagar, District- Katihar,
recorded by the S.I. AK Jha, OIC of Ajam Nagar PS,
Date: 20.11.88, Time: 13.30 in the State Dispensary,
Ajam Nagar.
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My name is Jagadish Mahato, S/o- Jamun Mahato,
R/o-Baharkhal, PS- Ajam Nagar, District- Katihar.
Today, on 20.11.88 at about 13.30 hrs, I give my
statement to the Inspector of the Ajam Nagar PS in an
injured condition in the Government hospital, Ajam
Nagar, that today at about 8.00 AM, I was watching
my field which used to be grazed by buffaloes along
with my brother Meghu Mahato. Seeing the buffalo
not there, we both the brothers went to the field of
Aslam which I have taken on 'Batai and doing the
sweet potato cultivation and came to our paddy field
and sat down there. Yesterday, on 19.11.88, I had
got the paddy cut by the labourers from the land
given to me by the Government of Bihar. I had
cultivated the said land. Due to this Sh. Jainul
Sarkar, Muslim Sarpanch, Barik, Aftab, all R/o-
Mahila along with 400-500 people were hiding there.
All of them armed with gun, country made pistol,
bhalla, farsa, gadasa, sword, suli and kachia etc.
Some of them were having stones. Some of them were
cutting the paddy from the land given by the
Government of Bihar. Seeing me and my brother, all
of them ran towards us from all directions and
surrounded us. At first they threw stones. Among
them, I found 1. Masiad, S/o- Mahi, 2. Ajam, S/o-
Shekh Nausad, 3. Khwaja, S/o- Shekh Nausad, 4.
Shekh Aladi, S/o- Shekh Shekh Sadiq, 5. Shekh
Karim, S/o- Sekh Sadiq, 6. Kaimuddin, S/o- Shekh
Habib, 7. Sahebuddin, S/o- Habib, 8. Hoda, S/o-
Habib, all R/o- Mahila, 9. Manoria, S/o- Unknown,
10. Asarul, S/o- Jhagru, 11. Rajjak, S/o- Salim, 12.
Sikandar, S/o- Salim, 13. Aku, 14. Sallu, all are S/o-
Gaffur, 15. Israel Munsi, S/o- Shekn Kalu, 16. Shekh
Muslim, 17. Shekh Barik, 18. Shekh Jainul, 19.
Shekh Mustaffa, 20. Sheikh Aftab, all are S/o-
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Kalimuddin, 21. Abbu Naser, S/o- Basir, 22. Haklu,
S/o- Bazaru, 23. Gulam, S/o- Haklu, 24. Jaina, S/o-
Shekh Mallu, 25. Shekh Mahsuddin, S/o- Massu, 26.
Niajuddin, S/o- Shekh Masu, 27. Ismail, S/o- Shekh
Chutharu, 28. Masiyad, S/o- Shekh Mohidi, 29.
Shekh Udhva, S/o- Shekh Mohidi all are R/o-Mahila,
PS-Ajam Nagar, out of whom Manoriya was holding
three-not pistol, Abu Nasar was holding gun, Gulam
holding ‘suli’ and others were holding lathi, bhala,
farsa, gadasa, sword, suli and stones. At first those
people having surrounded threw stones on us. Then
I and my brother raised alarm and tried to flee.
During this time I was hit by a stone. When we fell
down upon this Gulam hit me in the ribs with ‘suli’.
Then they assaulted us with lathi, and farsa. Then
my brother Meghu fled when 30. Ibrahim, S/o-
Unknown, R/o- Kantakosh, PS- Manihari who was
with those persons opened fire from a pistol on my
brother Meghu. Then he fell down. By that time,
hearing our alarm, people of the village, Dudhnath
Mahato S/o- Bhuneswar Mahato, Faiju Mahato S/o-
Jagdev Mahato, Sripati Mahato S/o- Bhujangi
Mahato, Dasu Mahato S/o- Ram Govind Mahato,
Sarjug Mahato S/o- Munni Lal Mahato, all R/o-
Baharkhal arrived there running. Behind them a
large number of men and women also came there
running. Those people assaulted them also. Among
them Sarjug Mahato also suffered gun-shot injuries
and he had succumbed to death. My brother Meghu
had sustained gun-shot injury and he died there. The
other injured persons Doodhnath, Faizu, Sripati and
Dasu had told me that 31. Allauddin, S/o- Alam, 32.
Abbas, 33. Safat, both S/o- Nseer, 34. Basir, 35.
Phooli, S/o Balal, 36. Hakkimul, S/o- Suleman, 37.
Mahtab, S/o- Hakimuddin, 38. Khalil, S/o- Jamal,
39. Sattar, S/o- Taslim, 40. Mister, S/o- Garibul, 41.
Criminal Appeal No. 1187-1188 of 2014 Page 4 of 74

Matru, 42. Motiya, 43. OC Mohammed, S/o-
Alimuddin, 44. Nizam, 45. Ishaq, both S/o-
Badaruddin, 46. Sakur Ahmmed, 47. Habib, both
S/o- Mehdi, 48. Dhelu, 49. Dablu, both S/o- Siraj, 50.
Nizam, S/o- Modi Khalil, 51. Kalimuddin, S/o-
Sarfailly, 52. Mouzia, S/o- Kalimuddin, 53.
Mahamuddij, S/o-Safar Ali, 54. Allouddin, S/o- Sadi
Mahajan, 55. Saha, 56. Jamal, both are S/o-
Basarat, 57. Mustaffa, 58. Fajak, 59. Imamdi, 60.
Faijuddin, all S/o- Banka Naseer, 61. Pachharu, S/o-
Hanif, 62. Najim, 63. Jabir, S/o- Naushad, 64. Arif,
65. Majibbul, 66. Jamir, S/o- Maqbool, 67. Ayub, S/o-
Makbool, 68. Farooq, S/o- Jhagru, 69. Asarul, S/o-
Jhagru, 70. Aslam, S/o- Alum, 71. Mokhtiyar, S/o-
not known, all are R/o-Mahila, PS-Ajam nagar,
District- Katihar and Mulla Master’s aide who is
having pox marks on his face, were also armed with
bhalla, farsa, gadasa, sword, suli, kachia, stones,
gun, pistol. They had surrounded them and injured
them. Kaimuddin had fired from pistol on Sarjug
Mahato and he died instantly. After Sarjug Mahato
and Meghu Mahato had succumbed to their injuries,
those people had dragged their dead bodies to take
those away. But seeing other men and women near
the embankment, they left them there and took
Sripati Mahato with them. They had left him near the
Mahila embankment. This incident had been seen by
all the men and women of the village. They will
narrate the incident. They will identify the accused
persons. The injured persons will tell who had
injured them. After those people left the spot, the co-
villagers took us and the deceased Sarjug Mahato
and Meghu Mahato to the Government hospital on a
cot, where we are under treatment.

Criminal Appeal No. 1187-1188 of 2014 Page 5 of 74

This is my statement. I claim that the aforementioned
accused persons with the intention to kill us were
hiding in the field being armed with bhalla, farsa,
gadasa, sword, suli, kachia, stones, gun and country
made pistol and killed Sarjug Mahato and Meghu
Mahato and injured us.

This statement of mine was read over to me which I
found correct and put my thumb impression on this.

Witness:
1. Ram Suraj Mahato
2. Uttam Mahato
3. Suresh Mahato
RTI
Jagadish Mahato

This statement of the informant was read over to him
which he found correct and put his thumb impression
on this.
ST/124
Sd.//Arvind
Ajam Nagar PS
20.11.88”

4. The aforesaid statement later came to be reduced in the form of a
first information report as prescribed under Section 154 of the Code
of Criminal Procedure, 1973 (for short, “ the CrPC ”) and was
numbered as FIR No. 148 of 1988 registered with the Ajam Nagar
Police Station, Kathiar. In the FIR, in all 72 persons came to be
arrayed as accused. The FIR reads thus:
“ Brief facts of the case and offence with sections and
details of the property stolen:
Assault by lathi, bhalla, farsa, gadasa, sword, suli,
kachia, stones, gun, pistol with the intention to
murder by forming unlawful assembly and injuring
Criminal Appeal No. 1187-1188 of 2014 Page 6 of 74

others, Offence committed U/s.
147/148/149/342/302/324/323 IPC and section
27 of the Arms Act. ”

5. As per the FIR, on the fateful day of the incident, the first informant,
Jagdish Mahato (PW-20) decided to visit his agricultural field on
20.11.1988 alongwith his brother (deceased). A day prior, i.e., on
19.11.1988, he had harvested paddy crop from the field that was
assigned to him by the Government. It is the case of the prosecution
that the accused nos. 2, 16, 17, and 21 respectively alongwith 400-
500 persons were hiding nearby the agricultural field of the PW-20
with weapons. These persons did not want the PW-20 to harvest the
paddy. According to the case of the prosecution, some of those
persons even started causing damage to the paddy crop. All these
persons upon seeing the PW-20 and his brother cornered them and
started pelting stones.

6. The PW-20 named 30 persons as accused in his statement recorded
by the investigating officer at the hospital. According to him, the
accused no. 9 named in the FIR had a pistol in his hand, the accused
no. 21 named in the FIR was holding a gun, the accused no. 23
named in the FIR had a suli in his hand and others were having
weapons like lathi , bhala , farsa , gandasa , sword, suli , stones etc. It
is alleged that the accused persons laid an assault on the PW-20 and
his brother was shot dead in the incident. Upon hearing the alarm,
the PWs 3, 4, 5, 6, and 10 respectively alongwith one Sarjug Mahato
(deceased) accompanied by other villagers reached at the place of
occurrence. The accused persons are said to have assaulted the
Criminal Appeal No. 1187-1188 of 2014 Page 7 of 74

aforesaid witnesses as well. Sarjug Mahato is alleged to have been
shot dead by the accused no. 1.

7. On the strength of the FIR referred to above, the investigation started.
On conclusion of the investigation, the chargesheet came to be filed
against 24 accused persons for the offences punishable under
Sections 148, 149, 307 and 302 of the IPC respectively.

8. The criminal case came to be committed by the Magistrate to the
court of Sessions under the provisions of Section 209 of the CrPC.
Upon committal, the same came to be registered as the Sessions
Case No. 124 of 1989 in the court of Sessions Judge, District Katihar.

9. The Trial Court proceeded to frame charge against the accused
persons for the offences enumerated above. The accused persons
denied the charge and claimed to be tried.

10. The prosecution examined the following 24 witnesses.

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11. It also relied upon few pieces of documentary evidence.

12. Upon closure of the recording of the oral evidence, the Trial Court
recorded the further statements of the accused persons under
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Section 313 of the CrPC. The accused persons stated that they all
were innocent and had been falsely implicated in the crime.

13. The Trial Court, upon appreciation of the oral as well as
documentary evidence on record, held 21 accused persons guilty of
the alleged offence whereas the remaining 3 accused persons were
acquitted of all the charges. All the convicted accused persons were
sentenced to undergo life imprisonment for the offence of murder.

14. The appellant herein being dissatisfied with the judgment and order
passed by the Trial Court went in appeal before the High Court. The
High Court after reappreciation of the oral as well as the
documentary evidence on record dismissed the appeal preferred by
the appellants herein and thereby affirmed the judgment and order
of conviction passed by the Trial Court.

15. In such circumstances referred to above, the appellants are here
before this Court with the present appeals.
a. Oral Evidence on Record
16. Jagadish Mahto (PW-20), the brother of the deceased Meghu Mahto,
on whose statement the FIR was registered, and one of the
eyewitnesses to the incident deposed that, at about 8 AM, the PW-
20 and the deceased had gone to have a look at their paddy field.
Thereafter, they went to the sweet potato field where they saw the
accused nos. 17, 2, 21, and 16 respectively loitering around the
settlement land. The witness has further deposed that at some
distance, he saw 400-500 people, all armed with weapons like gun,
pistol, suli , pick-axe, spear, sickle, etc.
Criminal Appeal No. 1187-1188 of 2014 Page 11 of 74


17. The witness further stated that out of the 400-500 people, 10-11
persons started cutting the paddy from his field, and when the
deceased and the witness tried to stop them, they started pelting
stones on them. The PW-20 went on to identify the accused nos. 9,
4, Aladi (not arrayed as an accused in the FIR), accused nos. 20, 5,
22, 8, 6, 1, 18, 11, 10, 12, Abbas (accused no. 32 in the FIR), Safak
(accused no. 33 in the FIR), Nayazuddin (not arrayed as an accused
in the FIR), Jaharuddin (not arrayed as an accused in the FIR), Ismail
(accused no. 27 in the FIR), accused nos. 2, 17, 21, and Gulam
(accused no. 23 in the FIR) respectively. He deposed that after being
hit by a stone, he fell down. Thereafter, Gulam hit him on his ribs
with a suli , the accused no. 10 assaulted him by a pick-axe on his
head, the accused no. 12 assaulted him with a lathi , the accused no.
2 assaulted him with a gandasa and the accused no. 11 with a bana .
According to the PW-20, his brother was also assaulted. During this
time, the PWs 3, 5, 6, 10, and the deceased Sarjug Mahto
respectively, reached at the place of occurrence but they, too, were
assaulted by them.


18. The PW-20 further deposed that his brother was done to death by a
gun-shot and was also assaulted with a suli . After the assault, all
accused fled away. Thereafter, the villagers took them to the Azam
Nagar Hospital. The Police Inspector recorded his statement, and
obtained his signature. He stated that prior to the incident, he had
no quarrel of any nature with the residents of the village Mahila with
respect to the settlement land. He further deposed that the accused
persons were not concerned in any manner with the settlement land.
Criminal Appeal No. 1187-1188 of 2014 Page 12 of 74

One Hakimul of the village Mahila had set the house of Fekan Mahto
on fire which had led to a murder on account of the said dispute.

19. The PW-20 admitted that the accused persons were never in
possession of the settlement land. He denied stating before the police
that the accused persons were hiding being agitated because of the
harvesting of the paddy which had taken place a day prior to the
incident. He deposed that he was unable to identify the persons
harvesting the paddy crop and identified them as labourers.
According to him, he fell unconscious after the assault and was
unable to witness as to who had assaulted the deceased Sarjug and
the PWs 3, 6, and 10 respectively. He stated that he was unable to
remember whose names he had disclosed. He categorically stated
that the injured persons had disclosed before the police as to who all
had assaulted them. In his cross-examination, the witness partly
resiled from his previous statement and stated that he was unable
to remember whether the statement that he had given to the police
in the hospital was read over to him or not.

20. The medical examination of the PW-20 revealed the following
injuries on him:
i. Incised wound on the right-side scalp 1” X 1/4” X bone deep;
ii. Lacerated wound on the scalp 2½” X 1/2” X bone deep;
iii. Punctured wound on the right side of the back ¼” diameter X
½” deep;
iv. One bruise in the right thigh 2½ X ½”;
v. Bruise on the left wrist joint 1½” X 1½”;
vi. Bruise over right wrist joint 1” X 1½”;
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vii. Bruise on the left side chest 3” X ½”.

21. Dasu Mahto (PW-3), the cousin-brother of the PW-20 and one of the
eyewitnesses to the incident deposed that the PW-20 and his brother
(deceased Meghu Mahto) had gone to the paddy field. When he heard
shouts, he ran towards the field. He was followed by deceased Sarjug
and the PWs 5, 6, and 10 respectively. He deposed that the accused
no. 12 assaulted him on his head with a lathi , the accused no. 10
assaulted him on his leg with a gandasa , the accused nos. 2 and 17
respectively were holding a gun, the accused no. 2 was holding a
spear, the accused no. 11 was holding a suli . The PWs 5, 6, 10, and
20 respectively, were injured. The accused persons killed Sarjug and
Meghu respectively.

22. The witness further deposed that the fight ensued because of the
cutting of the paddy crop. He stated that he was at his house when
he heard the sound of the firing of two gun-shots. He fell
unconscious after being assaulted and regained consciousness only
after some time. He further deposed that the police had arrived
between 11:00 AM and 12:00 noon and he had given his brief
statement. He deposed that he had not stated the names of 40
accused persons out of the 72 accused persons to PW-20, and he
does not remember whether the accused no. 2 was armed with a
spear and the accused no. 11 was armed with a suli .

23. The medical examination of the PW-3 revealed the following injuries
on him:
i. One lacerated wound on the forehead 1½” X ½” X bone deep;
Criminal Appeal No. 1187-1188 of 2014 Page 14 of 74


ii. One bruise over left scapular region 2½” X ½”;
iii. Bruise over left thigh outer aspect 3” X ½”;
iv. One bruise over left knee joint outer aspect 2” X ½”.

24. Faiju Mahto (PW-5), one of the eyewitnesses to the incident deposed
that after he heard some noise from the southern side of the
settlement land, he ran in that direction. The PW-3 was running
ahead of him. The PWs 6, 20, and deceased Sarjug and Meghu
respectively were also there. Upon reaching the place of occurrence
the residents of the village Mahila surrounded them and accused no.
5 (acquitted accused) assaulted him on his right hand with a farsa
and Sayab (absconder) assaulted him on his head with a pick-axe.
Further, the accused nos. 6, 8, and 22 respectively, assaulted him
with lathis . Thereafter, he was taken to the hospital, where he came
to know that the assailants had killed Sarjug and Meghu, and the
PWs 3, 6, and 20 had suffered serious injuries. The PW-5 had heard
two rounds of firing.

25. In his cross-examination, the PW-5 deposed that he regained
consciousness in the boat while on his way to the hospital. All five
injured persons were taken to the police station. They reached the
police station at about 9:00 AM where the police recorded their
statements. Thereafter, he was admitted to the hospital. In the night,
the Sub-Inspector had recorded his statement.

26. The medical examination of the PW-5 revealed the following injuries
on him:
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i. One incised wound on the right forearm measuring 2½” X ½” X
muscle deep;
ii. Incised wound on the middle of scalp 1½” X ¼” bone deep.

27. Sripati Mahto (PW-6), one of the eyewitnesses to the incident
deposed that the incident had occurred at about 8:30 AM. He heard
a commotion coming from the direction where the settlement land
was situated. He ran behind the PW-3, and the PWs 5 and 10
respectively ran alongwith him. The witness deposed that even before
he could reach the settlement land, the residents of the village
Mahila assaulted them. The accused no. 19 hit him with a pick-axe,
the accused no. 14 assaulted him with a sword, and the accused
nos. 18, 7, 3, 13, Matru (absconder) and Jamshed (absconder)
assaulted him with a lathi . The witness denied having stated before
the police that he had heard the commotion coming from the
direction where the settlement land was situated. He had reached
the hospital at 5 PM but his statement was not recorded on that day.

28. The medical examination of the PW-6 revealed the following injuries
on him:

i. One incised wound 1½” X ¼” X bone deep over root of right ring
finger;
ii. Incised wound 1” X ¼” over right side of injury No. 1;
iii. Incised wound ¾” X 1/6” X muscle deep over right middle finger;
iv. One lacerated wound ¾” X ¼” over right side of scalp;
v. One abrasion 1” diameter over right cheek;
vi. One incised wound with out of radius bone 1½” X ½” over left
forearm.
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29. Doodhnath Mahto (PW-10), one of the eyewitnesses to the incident,
deposed that the incident occurred between 8:00 AM and 9:00 AM.
On hearing some noise, he ran towards the settlement land. Jalla
(not arrayed as an accused in the FIR) hit him on his head with a
lathi . Thereafter, someone assaulted him on his neck with a pick-
axe. He was unable to see the assailant as he was assaulted from
behind. At this juncture, the witness was declared hostile. He denied
stating before the police that upon reaching the settlement land, the
residents of the village Mahila surrounded him and he was
assaulted. Thereafter, he named Masiyan (not arrayed as an accused
in the FIR) as the assailant who assaulted him on his neck from
behind.

30. Further, he denied stating before the police that the accused no. 10
had assaulted him on his head with a lathi , the accused nos. 18 and
22 had assaulted him with a lathi , the accused no. 4 had assaulted
him with a pick-axe on his wrist, the accused no. 1 was armed with
a pistol, the accused nos. 11 and 20 were armed with a spear, and
the accused no. 8 was armed with a lathi .

31. The medical examination of the PW-10 revealed the following
injuries on him:
i. One incised wound on the back of neck 4” X 1” X 1½” (deep) with
bending of neck;
ii. One incised wound on the back 1” X ¼” X ¼” deep;
iii. One incised wound on the scalp back side 1” X ¼”;
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iv. One incised wound on the right wrist joint 1 ¼” X ¼” X muscle
deep.

32. Chhedi Mahto (PW-4), resident of the village Mahila and one of the
eyewitnesses to the incident, deposed that the incident had occurred
at about 8:00 AM. At the time of the incident, he was in his sweet
potato field. He identified the accused nos. 1 and 18 respectively. He
first stated that the accused no. 1 was holding a gun. Then, he stated
that he was armed with a spear. He deposed that all were fighting
with eachother. He further deposed that the accused no. 1 shot dead
deceased Sarjug, and the PWs 3, 5, 6, 10, 20 respectively, were
injured. The accused no. 19 had a in his hand, Jamir
gandasa
(absconder) held a suli . In his cross-examination, the witness stated
that he had no idea of the cause behind the fight. He further deposed
that there were many people and it could not be said as to who were
the assailants and who were the spectators. The police arrived at
about 12:00 to 1:00 PM, and his statement was recorded on the spot.

33. Chinta Devi (PW-8), the wife of deceased Sarjug Mahto and one of
the eyewitnesses to the incident, deposed that she and her husband
were sowing crops in the morning of the day of the incident. At that
time, the deceased-Meghu raised an alarm. The PW-8 alongwith her
husband ran in that direction. She deposed that her husband was
surrounded by the residents of the village Mahila. She identified the
accused no. 18 passing on a gun to the accused no. 1, who in turn
fired a shot towards her husband. Thereafter, the accused no. 14
assaulted him with a suli , the accused no. 11 with a pick-axe, the
accused no. 17 with a suli . In her cross-examination, the witness
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deposed that there was a crowd of around 400-500 people. While
some were armed, some were unarmed. She further deposed that the
Station-House-Officer of the police station arrived after 2 hours of
the incident and interrogated her.

34. Arvind Kumar Jha (PW-23), the Officer-In-Charge of the Azam
Nagar Police Station, deposed that on the day of the incident at about
1:25 PM, he received an O.D. Slip from the Govt. Hospital. On the
basis of the same, he recorded the statement of PW-20, and the same
was reduced in the form of an FIR. He deposed that he had collected
the injury reports of the PWs 3, 5, 6, and 10 respectively, from the
hospital and then immediately left for the place of occurrence. He
reached the place of occurrence, i.e., the settlement land at 3:20 PM.
He found blood at various places on the ground and a blood stained
lathi . He inspected the documents pertaining to the settlement land,
which he found to be in the joint names of the deceased Meghu
Mahto, Lalu Mahto, Dharmu Mahto, and the PW-20 respectively. On
21.11.1988, he recorded the statements of the PWs 3, 5, 6, 10, and
15 respectively.


35. The police officer further deposed that the PW-4 had stated that the
accused no. 17 inflicted injuries with a suli on the body of the
deceased-Meghu, Ibrahim was armed with a pick-axe, Kirouri (not
arrayed as an accused in the FIR) was armed with a sword, Tara (not
arrayed as an accused in the FIR) was armed with a gupti , Manoriya
(accused no. 9 in the FIR) had come with a pistol, and Kaimuddin
snatched the gun from accused no. 18 and fired a shot at the
deceased-Sarjug. Further, the PW-8 neither stated that the accused
Criminal Appeal No. 1187-1188 of 2014 Page 19 of 74

nos. 14 and 17 respectively had assaulted her husband with a suli
nor that accused no. 11 assaulted him with a pick-axe. She had
named Sarful, Hamzu, Mozamil, Tulku, Shakil, Faltu, Nasir,
Azimuddin, Ishahak, and Chhotiya as the asssailants.

b. Judgment of the Trial Court
36. Upon appreciation of the oral as well as documentary evidence on
record, the Trial Court vide its judgment and order dated 24.05.1990
passed in Sessions Case No. 124/1989 held 21 accused persons
guilty of the alleged crime and acquitted the remaining 3 accused
persons. The findings recorded by the Trial Court in its judgment can
be better understood in seven parts:-
a. First , on the factum of assault, it was observed that the PW- 21,
i.e., the doctor who performed postmortem on the dead bodies
had found several injuries, including a firearm injury, on both
the dead bodies. The description of injuries given by the PW-22,
who examined the injured witnesses, lend credence to the
version of assault narrated by the five-injured persons, i.e., the
PWs 3, 5, 6, 10, and 20 respectively. The injuries were found to
be on vital parts of the body like neck, chest, and head, caused
by sharp and hard blunt weapons. They were reflective of the
intention of the assailants at the time of causing such injuries.
They had knowledge that the injuries were sufficient in the
ordinary course of nature to cause death. Further, the oral
testimony of the other eyewitnesses and IO read with the inquest
report and seizure list, entirely supported the case of the
prosecution. The Trial Court further observed that the blood
marks at different places, the trails of dragging marks and the
Criminal Appeal No. 1187-1188 of 2014 Page 20 of 74

presence of a blood-stained lathi also substantiated the case
made out by the prosecution. It noted that the two deaths and
the injuries to five persons were not in dispute. It held that from
the oral evidence of the PWs 21, 22, 23, and 24 respectively, the
factum of assault as narrated by the PW-20 stood fully
corroborated.
b. In continuation of the above, the Trial Court declined to accept
the version of the defence that the deceased and the witnesses
wanted to forcibly harvest the paddy from the settlement land
and as they started harvesting the paddy, the accused nos. 3
and 24 respectively objected, due to which the deceased and the
witnesses had assaulted both the accused persons. The court
declined to believe such defence on the ground that paddy was
not found at the spot at which the accused persons claimed to
have harvested it. The relevant observations read as under:-
“ 39. From the evidence of P.Ws. referred to in
different para above, it is apparent that the medical
officer who held postmortem on the dead bodies
found numerous injuries on both the dead bodies.
There was injury of fire arm on both the dead bodies.
In this way the doctor fully supports the picture of
assault given by the eye witnesses of the alleged
occurrence. The Medical Officer of Azamnagar
Hospital who has examined the five injured persons
had also found various injuries on the persons of
Jagdish Mahto, Dudhnath Mahto, Faiju Mahto,
Sripati Mahto and Dasu Mahto. Their injuries disclose
that on the vital parts of the body like neck, chest,
head etc. the sharp cutting weapons and hard blunt
substance caused injuries and the injuries were of
the quality which would have caused fatal results.
These injuries are sufficient to show the intention of
the assailants that at the time of causing these
injuries they had very clear knowledge that these
Criminal Appeal No. 1187-1188 of 2014 Page 21 of 74

injuries could have led to the worst result of death of
these injured persons. These injuries found by the
doctor fully corroborates the story of assault given by
the five injured persons Jagdish Mahto (P.W. 20),
Dasu Mahto (P.W. 3), Faizu Mahto (P.W. 5), Sripati
Mahto (P.W. 6), and Dudh Nath Mahto (P.W. 10). The
evidence of other eye witnesses on the point of
assault is also corroborated by the medical evidence
of the two doctors P.Ws. 21 and 22. The I.O. P.W. 23
and the A.S.I. P.W. 24 have also supported the
prosecution story the fair injury reports (Ext. 8 series)
inquest reports and seizure lists fully support the
story. The P.O. of this case described by the I.O. (P.W.
23) speaks clearly that the parcha land is the P.O.
field and the occurrence covered a big area of about
50 yards. The blood marks at different places and the
dragging mark and the trampling mark and presence
of "dhelas" and blood stained lathi fully corroborates
the picture of assault given by the prosecution that a
large number of persons took part in this assault and
the assault was indiscriminate. One thing is very
clear from the evidence of the I.O. that there was no
paddy bundle nor there was any harvested paddy in
any field near the P.O. According to the prosecution
story few members of the mob started forcibly
harvesting the paddy from the parcha land which
was objected to by the complainant Jagdish Mahto
and his brother Meghu Mahto on which they were
surrounded by the mob and they were assaulted.
Against this according to the defence story the
complainant party had gone in a group to forcibly
harvest the paddy from the P.O. land and they were
harvesting the paddy against which Habib and
Allauddin protested on which the complainant party
assaulted Habib and Allauddin causing injuries then
villagers came in the help of Habib and Allauddin and
there was "marpeet". It is worth consideration that
the defency story contained in the complaint petition
filed by Habib speaks about the theft of paddy from
6-7 bighas on the date of occurrence. The two
murders and injuries to five persons is not seriously
disputed by the defence side. If actually there was
Criminal Appeal No. 1187-1188 of 2014 Page 22 of 74

harvesting of paddy by the complainant party and
there was protest by the accused side to protect their
paddy and exercised their right of defence of property
as the defence side has argued then there was no
time for the complainant and others to remove even a
single bundle of paddy. Therefore, in the natural
circumstances one will expect that the harvested
paddy of the entire 6-7 bighas of land should have
been found there. But there was no such harvested
paddy either in bundle shape or in spread shape.
This falsifies the story presented by the defence side.
The I.O. and the two doctors examined in this case
are independent responsible public servants. They
have no reason to depose falsely against the accused
persons. In their cross-examination also there is
nothing it discredit there. Therefore I find nothing to
doubt the correctness of their evidence. Accordingly I
rely on the evidence of the public servants examined
as P.Ws. 21, 22, 23 and 24. From their evidence the
picture of assault given by the complainant in the fard
bayan and in the evidence as well as in the evidence
of other injured persons and eye witnesses finds full
”
corroboration.

c. Secondly , the Trial Court rejected the defence of right to private
defence, observing that the accused persons could not have
cultivated paddy on the settlement land as it had previously
been in the possession of the State of Bihar, and later with the
PW-20 alongwith his brothers. It further ruled out the possibility
of paddy been grown by the accused persons as none of the
witnesses or the deceased had harvested the paddy from the
settlement land. The relevant observations read as under:-
“ 40.[…]Therefore the claim presented by the accused
persons in this case clearly speaks that they want to
force the settles of the State of Bihar to flee away from
the settled land only due to the strength of the
accused side. This tendency cannot create any right
of private defence rather it clearly suggests. that the
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whole occurrence is the result of the principle of might
is right. The accused persons had no justification for
going to the parcha and but they went upon the
strength of their violence to take possession of the
land which the complainant and his brothers and
cousins had got settlement. In this way I find that
there is no scope to argue for right of private
defence.[…] ”

d. Thirdly , the Trial Court noted that the contradictions in the
testimonies of the witnesses would not be of any help to the
accused persons as the witnesses were not found to have
suppressed the relevant facts. The relevant observations read as
under:-
“
42. The learned defence lawyer has tried to show
some contradictions in the evidence on the point of
occurrence with the help of witnesses who have gone
hostile. I do not think that such contradictions can be
used in favour of the defence when the case diary
and the evidence on the record speaks that they are
not suppressing the relevant facts. I do not find any
merit in the contradictions pointed out by the defence
side. The P.Ws. are all illiterate simple and rustic
villagers. If something is extracted by the lawyer from
them due to complicated questions it can't be used to
contract other P.Ws.[…] ”

e. Fourthly , the oral evidence of the PWs 3, 4, 7, 8, and 20
respectively, was found to be inspiring confidence, more
particularly, the fact that the accused no. 1 had fired shots
killing deceased Sarjug Mahto, the accused Ibrahim had fired
shots killing deceased Meghu Mahto, and that the other
members of the mob had assaulted them. It noted that the
common object of the members of the unlawful assembly was
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apparent from the fact that they had arrived there with weapons
without any provocation.

f. Fifthly , the charge under Section 302 r/w Section 149 of the IPC
stood duly proved as the accused persons wanted that the PW-
20 and his brothers give up their claim over the settlement land
to enable the accused persons to forcibly occupy it. It held that
the common object of all the members of the unlawful assembly
was to cause the death of any person coming in the way of their
illegal design to forcibly dispossess the PW-20 and his brothers
from the settlement land. Further, the charge under Section 307
of the IPC against all the accused persons also stood duly proved
qua the assault on the PWs 3, 5, 6, 10, and 20 respectively. The
relevant observations read as under:-
“ 44. Question No. II: From the evidence of the P.Ws. it
is well proved that Kaimuddin fired killing Sarjug
Mahto and Ibrahim fired killing Meghu Mahto. There
are numerous other injuries on dead bodies besides
the injuries of fire arms which speak that several
other members of the mob also assaulted both the
deceased. From the evidence of P.W. 4 Chhedi Mahto,
P.W. 8 Chinta Devi, P.W. 7 Munilal Mahto, P.W. 3
Dasu Mahto and the complainant P.W. 20 it is proved
that Kaimuddin fired on Sarjug Mahto killing him on
the spot. It is further proved that Ibrahim fired on
Meghu Mahto and other members of the mob also
assaulted him. This Ibrahim has absconded in this
case. The preplanning of all the members of the mob
is apparent from the fact that they had collected there
variously armed and without any provocation they
started assaulting the complainant and his brother
Meghu Mahto and the persons who came to their
rescue were also indiscriminately assaulted
mercilessly. This clearly speaks that all had one and
the same object that the complainant and his
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brothers who had got parchas in respect of the land
should abandon their claims and allow the accused
persons to forcibly occup7y those settled lands and if
there was any protest the persons should be killed.
Therefore the common object of all the members of the
mob was one and the same to cause the death of the
persons coming in the way of their illegal design to
forcibly dispossess the complainant party from the
settled land. Therefore all the members of the mob are
equally responsible for causing the death of Meghu
Mahto and Sarjug Mahto. Therefore the charge u/s
302/149 IPC is well proved against the accused
persons who have taken part in this assault. There is
no evidence to connect accused Aslam, Kalimuddin
and Allauddin. Therefore they are not found
responsible for this incident. The charge framed u/s
302 IPC against Kaimuddin is well proved. The
charge u/s 307 IPC framed against the accused
persons for murderous attack on Dudhnath Mahto,
Jagdish Mahto, Dasu Mahto, Sripati Mahto and Faiju
Mahto is also well proved from the evidence
discussed above.[…] ”

g. Sixthly , the Trial Court found that the accused no. 10 was
identified as an assailant by the PWs 3, 7, and 20 respectively.
Further, the accused no. 12 was identified by the PWs 3, 7, 8,
20 respectively; the accused no. 11 by the PWs 3, 8, 20
respectively; the accused no. 18 by the PWs 4, 6, 8, 20
respectively; the accused no. 19 by the PWs 4, 6, 16 respectively;
the accused no. 5 by the PWs 8 and 20 respectively; the accused
no. 8 by the PWs 5 and 20 respectively; the accused no. 22 by
the PWs 5 and 20 respectively; the accused no. 2 by 3 and 20
respectively; the accused no. 14 by the PWs 7 and 8 respectively;
the accused nos. 3, 7, 13, 16 by the PW-6; the accused nos. 4,
9, 16, 20, and 21 respectively by the PW-20. The relevant
observations read as under:-
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“ 45. In the evidence of P.Ws. I have found that
accused Allu @Allauddin has been identified as an
assailants in the members of mob by P.W. 3 Dasu
Mahto, and the complainant P.W. 20 Jagdish Mahto.
Further his name has come in the evidence of P.W. 7
Munilal Mahto as dying declaration of Sarjug Mahto.
Accused Sallu has been identified by P.W. 3 Dasu
Mahto, P.W. 8 Chinta Devi, P.W. 20 Jagdish Mahto
and his name also comes in the evidence of P.W. 7.
Accused Hoda has been identified by P.W. 3, P.W. 8
and P.W. 20. Accused Samuddin stands identified
P.W. 4 Chhedi Mahto, P.W. 6 Sripati Mahto, P.W. 8
Chinta Devi and P.W. 20 Jagdish Mahto. Accused
Garibul has been identified by P.W. 4, P.W. 6 and
P.W. 16 Suresh Mahto. Accused Asarul has been
identified by P.W. 8 Chinta Devi and P.W. 20 Jagdish.
Accused Razak has been identified by P.W. 5 Faiju
Mahto and P.W. 20 Jagdish Mahto. Accused
Sikander has been identified by P.W. 5 Faiju Mahto
and P.W. 20 Jagdish Mahto. Accused Muslim
Sarpanch has been identified by P.W. 3 Dasu Mahto
and P.W. 20 Jagdish Mahto. Accused Udwa has been
identified by P.W. 6 Sripati Mahto. Accused Majia @
Mojib has also been identified by P.W. 6. Accused
Mister has been identified by P.W. 8 Chinta Devi and
he has also been named by P.W. 7 in the dying
declaration. Accused Barik has been identified by the
complainant Jagdish Mahto. Accused Aftab, Masiat,
Azam and Khaza have also been identified by the
complainant Jagdish Mahto P.W. 20. Accused Habib
has been identified by P.W. 6 Sripati Mahto. In this
way all these 21 accused persons have been
specifically alleged by the P.W. b with definite
identification that they took part in this assault .”

h. Lastly , as the prosecution had failed to prove the charges beyond
reasonable doubt against the accused nos. 15, 23, and 24
respectively, the Trial Court acquitted them. The relevant
observations read as under:-
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“ 44. […]Accordingly I find that the prosecution has
proved the charges beyond reasonable shadow of
doubts against all the accused persons except
accused Aslam, Kalimuddin and Allauddin .”
II. IMPUGNED JUDGMENT
37. The 18 convicts being dissatisfied with the judgment and order
passed by the Trial Court, went in appeal before the High Court by
way of Criminal Appeal (DB) No. 202 of 1990. The High Court vide
its impugned final judgment and order dated 17.07.2013 partly
allowed the appeal by acquitting 7 accused persons. As a sequitur,
the High Court affirmed the conviction of 11 accused persons. The
impugned judgment and order of the High Court is in three-parts.
i. First , the High Court by relying on the Exhibit I series (petitions
filed by the respective PWs for settlement of land), held that the
defence had admitted the validity of Exhibit 2 series ( purcha
granted by the State Government in favour of the PW-20 and
others), more particularly, it acknowledged the khata and
khasra number. Thus, the Exhibit 2 series could be said to be
conclusive on account of it not being challenged. The relevant
observations read as under:-
“52. This case suffers from some sort of peculiarity
and that is with regard to its origin. The origin
happens to be connected with the right to possess
actual physical possession of the land under dispute.
The position would have been very much clear, had
the defence allowed the prosecution to sail on its boat
without pouncing upon the same but as is evident,
the defence was not satisfied with the suggestion
whatever they have during course of cross-examining
the P.Ws. They jumped into fray and advanced their
plea that the land was possessed by them and to
support the same, they have exhibited trace-map,
C.S. Khatian, R.S. Khatian. Not only this by having
Criminal Appeal No. 1187-1188 of 2014 Page 28 of 74

Ext-I to 1/4 the defence had also brought on record
the petitions filed by the respective prosecution
witnesses for settlement of the land and by such
action the defence had admitted its propriety,
genuineness and on account thereof the defence had
accepted validity of Ext-2 series, the Purcha granted
by State Government in favour of the prosecution
party. It is no where the case of the defence that they
have had ever challenged Ext-2 series, Parcha before
the competent authority. That means to say, there
happens to be acceptance of the aforesaid Ext-2 in its
conclusiveness.
53. When particular act is performed in pursuance of
mandate of specific law then its genuineness, its
propriety, its effectiveness, its execution will be
accepted unless and until contrary is proved. The
defence had nowhere challenged or tried to rebut the
genuineness of purcha as well as even having purcha
issued in favour of prosecution party, they never
came over the land side by side when there happens
to be specific claim on behalf of defence, then in that
event it should have been proved at least to such
extent to cast doubt with regard to the prosecution
version relating to possession over the land brought
under Ext-2 series, Ext-2 relates to Meghu Mahto
which discloses settlement of 1.25 Acres of land of
Khesra no. 29/3 of Khata No. 94 of village, Giddhaur,
2/1 relates to Jagdish Mahto to the extent of area
1.50 Acre of Khesra no. 29/1 of Khata No. 94 of
village, Giddhaur, 2/2 relates to Dharmu Mahto
covering an area of 1 Acre of Khesra no. 108 (MI) of
Khata No. 94 of village Giddhaur, 2/3 relates to Dasu
Mahto of area of 1 Acre of Khesra no. 29/5 of Khata
No. 94 of village, Giddhaur, 2/4 relates to Lalu Mahto
to the extent of area 1 acre under Khesra no. 29/4 of
Khata No. 94 (MI) of village, Giddhaur.
xxx
55. None of the exhibits, that means to say, Ext-F
series, Ext-g relates to Khata No. 94, the Khata
having under Purcha and not Khata No. 14 so
claimed under Ext-C. The defence by exhibiting
respective petitions filed by the prosecution party
Criminal Appeal No. 1187-1188 of 2014 Page 29 of 74

under Ext-I series, in real sense had shown their
status acknowledging Khata No, Khesra No.
incorporated therein and by such measure they have
virtually sacked their own status to advance their
claim or having their claim with regard to land
covered under Khata No.94, the Khata having been
allotted in favour of prosecution party.”

ii. Secondly , the High Court noted that the presence of injured
witnesses, i.e., the PWs 3, 5, 6, 10, and 20 respectively, cannot
be doubted. It observed that the oral testimonies of the said
witnesses were found to be reliable and trustworthy. Further, by
relying on the decision of this Court in Shyam Babu v . State of
Uttar Pradesh , reported in (2012) 8 SCC 651 , it was held that
the oral evidence of the witnesses cannot be discarded solely
because they are related to each other. The relevant observations
read as under:-
“ 60. Coming to the remaining witnesses, as stated
above, 1.C PWs, 3,-4-, 5, 6 and 20 are injured
witnesses whose presence cannot be doubted. After
going through their testimony, it is found reliable and
trustworthy because of the fact that from their
testimony it is apparent that they have hot tried to
inter-mingle their evidence with any sort of
development or going beyond their status what they
have perceived as eyewitnesses as well have been
victimized. at the hands of appellants during course
of occurrence. It has also been found from their
evidence that they are inter-related.[...] ”

iii. Thirdly , on the applicability of Section 149 of the IPC, the High
Court by relying on the decision of this Court in Kanhaiya Lal
& Ors. v . State of Rajasthan , reported in (2013) 5 SCC 655 ,
and Subal Ghorai & Ors. v . State of West Bengal , reported
in (2013) 4 SCC 607 , held that all the accused persons were
Criminal Appeal No. 1187-1188 of 2014 Page 30 of 74

members of the unlawful assembly and the common object of
the unlawful assembly was to commit the crime as alleged. After
a meticulous examination of the oral evidence on record, the
High Court found that the prosecution was able to prove its case
against some of the accused persons beyond reasonable doubt.
Having said so, it acquitted the accused nos. 4, 5, 16, 18, 20,
21, and 22 respectively, as their possibility of being passive
onlookers could not have been ruled out. The relevant
observations read as under:-
“ 75. Thus after meticulously examining the evidence
of PWs, including that of injured witnesses, it is found
and held that prosecution has succeeded in proving
its case beyond reasonable doubt. However,
appellants Azam, Asarul, Aftab Alam, Shahabuddin,
Md. Khaza, Barik, Md. Sikandar find their
involvement as a member of an unlawful assembly
but without having any sort of allegation at the end
of prosecution and and as as revealed by the
prosecution on its own showing presence of large
numbers of persons, then in that circumstances
presence of person as spectators at the place of
occurrence cannot be ruled out.
76. Consequent there upon, they should at least are
found entitled for benefit of doubt and accordingly are
acquitted. They are on bail. Hence, they are directed
to be discharged from the liability of bail bond .”

38. In such circumstances referred to above, the appellants are here
before us with the present appeals.
III. SUBMISSIONS ON BEHALF OF APPELLANT
39. Mr. Ashwani Kumar Singh, the learned Senior Counsel appearing
for the sole appellant in Criminal Appeal No. 1187/2014, submitted
that the FIR was lodged at 2:35 PM on the basis of the statement of
Criminal Appeal No. 1187-1188 of 2014 Page 31 of 74

the PW-20. However, the statements of other witnesses indicate that
the statement of the PW-20 was not the first information to the
police. He submitted that it is inconceivable that the complainant
was able to see and identify 72 assailants in a sudden assault. He
further submitted that the Trial Court failed to properly appreciate
the evidence so far as the accused no. 17 is concerned.
i. Mr. Singh further submitted that the PW-20 has named accused
nos. 2, 10, 11, and 12 respectively as his assailants. The PW-20
had deposed that the accused no. 17 was loitering with accused
nos. 16 and 21 respectively near the settlement land. The High
Court has acquitted both the accused nos. 16 and 21 on the
possibility of them being passive onlookers. Moreover, it has also
come clearly on record that the land of many residents of the
village Mahila is situated towards north of the settlement land.
Hence, their presence cannot be said to be unusual. Notably, the
accused no. 17 is not related to either the accused nos. 1 or 2
respectively, who have been claiming their right over the
settlement land.

ii. Mr. Singh pointed out that the PWs 5 and 6 respectively, failed to
identify the accused no. 17 as being present or having been as
assailant. Further, the PW-3 has improved upon his version
which has come on record in the statement of the PW-23, i.e., the
Investigating Officer. The I.O. deposed that the PW-3 had not
stated in his police statement that the accused no. 17 was armed
with a spear.

Criminal Appeal No. 1187-1188 of 2014 Page 32 of 74


iii. He argued that the PW-3 cannot be said to be a credible witness
as the other witnesses, i.e., the PWs 5, 6, and 10 respectively have
neither identified the accused no. 17 to be present nor have stated
that he was one of the assailants even when all of them have
stated to have arrived at the place of occurrence together. The
statement of the I.O. also revealed that the PW-8 had not stated
before him that the accused no. 17 had assaulted her husband.

iv. As regards the applicability of Section 149 of the IPC, Mr. Singh
relied on the decision of this Court in Musa Khan v . State of
Maharashtra , reported in (1977) 1 SCC 733 , to submit that
courts should not presume that any and every person who is
present near a mob at any time or to have joined or left it at any
stage, is guilty of every act committed by it from the beginning till
the end. He further relied on the decision of this Court in Ranvir
Singh & Ors. v. State of Madhya Pradesh , reported in (2023)
14 SCC 41 , to fortify his submission that, in such cases, courts
should evaluate the evidence more closely as there is always a
tendency to implicate the innocent with the guilty. He argued that
the oral testimony of the witness could be termed as consistent
only when the evidence is found to be credible, and satisfies the
conscience of the court.

v. In the last, Mr. Singh submitted that the High Court committed a
serious error by not properly marshalling the evidence. It has
merely referred to the evidence, and not appreciated the same. He
submitted that Section 149 of the IPC demands a greater degree
Criminal Appeal No. 1187-1188 of 2014 Page 33 of 74

of appreciation of the evidence. He urged that the impugned
judgment be set aside and the appellant be acquitted.

40. Mr. Ashwani Kumar Singh, the learned Senior Counsel appearing
for nine appellants in Criminal Appeal No. 1188/2014, would argue
that the FIR is ante-timed and an afterthought. The incident
allegedly took place on 20.11.1988 at about 8 AM. The I.O. recorded
the statement of the informant at about 1:30 PM, and the FIR was
registered on the same day at 2:35 PM. However, the same was
transmitted to the concerned Magistrate after 2 days, as is apparent
from the Column 8 of the said FIR. Therefore, on account of
substantial delay in forwarding the FIR and non-explanation thereof,
the FIR becomes doubtful and would come under the suspicion of
being an exaggerated version.
i. He submitted that the PW-5 stated in his deposition that he
reached the police station at about 9 AM alongwith all the five
injured persons, i.e., the PWs 3, 6, 7, 10, and 20 respectively. The
Sub-Inspector of Police prepared the papers of the injured persons
after which they were taken to the hospital. Further, PW-3, in his
cross-examination admitted that the Sub-Inspector reached the
hospital at about 11 AM, wherein his statement was recorded.
Whereas, the PW-4 deposed that the Sub-Inspector arrived at the
place of occurrence at about 12 PM, where his statement was
recorded by him.

ii. In light of the conflicting versions given by the aforesaid
witnesses, the possibility that the statement of PW-20, on the
strength of which the FIR was registered, might have been
Criminal Appeal No. 1187-1188 of 2014 Page 34 of 74

recorded after due deliberations and consultations cannot be
ignored. In such circumstances, the statement given by PW-20
could not have been treated as the FIR. Consequently, the
investigation could be termed as tainted, and it would be unjust
to rely upon such a tainted investigation.

iii. With a view to fortify the aforesaid submission, Mr. Singh
highlighted one another contradiction in the deposition of the PW-
22, i.e., the Medical Officer of the Azam Nagar Hospital and the
PW-23, i.e., the I.O. The I.O. had deposed that he had gone to the
hospital on the basis a O.D. Slip received from the hospital.
Whereas, the PW-22 stated that he examined the injuries on the
injured persons upon police requisition. He further submitted
that there are contradictions in the form of material omissions in
the testimony of the witnesses before the Trial Court.

iv. In the last, he submitted that the High Court failed to appreciate
the evidence in its true prespective. The PW-5 had deposed that
the accused no. 5 had hit him with a farsa on his right-hand, and
the accused nos. 6, 8, and 22 respectively had assaulted him with
a lathi . Strikingly, the High Court acquitted the accused nos. 5
and 22 respectively but affirmed the conviction of the accused
nos. 6 and 8 respectively. He highlighted that the case against the
accused nos. 6 and 8 respectively stood at par with that of the
accused persons acquitted by the High Court.
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IV. SUBMISSIONS ON BEHALF OF THE RESPONDENT-STATE
41. Mr. Divyansh Mishra, the learned counsel would argue that the
evidence on record clearly indicates the specific role played by the
appellants in the assault. They all were heavily armed and laid an
indiscriminate attack on the prosecution party in pursuance of their
common object. He submitted that the appellant-accused no. 17 was
identified by the PWs 3 and 8 respectively as one of the assailants.
The accused no. 6 was identified as one of the assailants by the PW-
5, and was identified by the PW-20 as one of the members of the
unlawful assembly.
i. Further, the PW-5 had deposed that the accused no. 8 assaulted
him with a lathi. He was also identified as one of the members of
the unlawful assembly by the PW-20. The PWs 3 and 20
respectively deposed that the accused no. 10 assaulted the PW-3
on his left leg with a gandasa and the PW-20 on his head with a
pick-axe. The PWs 3 and 20 respectively deposed that the accused
no. 12 was one of the assailants who assaulted them with a lathi .
The PW-8 also witnessed the accused no. 12 assaulting her
deceased husband Sarjug Mahto. The PW-6 deposed that the
accused nos. 7 and 13 respectively had assaulted him. Mr. Mishra
also submitted that the injuries sustained by the witnesses are
consistent with the description of assault given by them in their
testimonies.

ii. Mr. Mishra relied on this Court’s decision in Joy Devaraj v . State
of Kerala , reported in (2024) 8 SCC 102 , to submit that the
discrepancies in the testimonies of the witnesses must be viewed
in the context of the chaotic incident, where multiple accused
Criminal Appeal No. 1187-1188 of 2014 Page 36 of 74


persons are alleged to have assaulted the witnesses with various
weapons. In such circumstances, minor inconsistencies qua the
weapons are natural and do not undermine the credibility of the
witnesses. The discrepancies are not fatal to the case of the
prosecution when the ocular version stands fully corroborated
with medical evidence.

iii. He further submitted that the motive behind the incident was the
previous enmity between the witnesses belonging to the Mahto
community and the residents of Mahila village. He placed reliance
on the decision of this Court in the case of Bikau Pandey & Ors.
v . State of Bihar , reported in (2003) 12 SCC 616 , to submit that
the existence of the common object under Section 149 of the IPC
is to be inferred from the conduct, language, and acts of the
members of the unlawful assembly. The nature of the weapons
carried by the members holds considerable significance. The
common object of the assembly could be ascertained from the
formation of the assembly, the arms carried, and the conduct of
the members before, during, and after the occurrence.


iv. Applying the ratio of the aforesaid judgment, Mr. Mishra
submitted that the injured witnesses, i.e., the PWs 3, 5, 6, and 20
respectively, have attributed specific overt acts to each of the
appellants. The unlawful assembly was armed with deadly
weapons like firearms, pick-axes, suli , gandasa , lathi , etc., which
reflects on the common object.

Criminal Appeal No. 1187-1188 of 2014 Page 37 of 74


v. Elaborating on the liability of the accused persons under Section
149 of the IPC, Mr. Singh submitted that the liability under
Section 149 of the IPC is not dependent on the individual
intention of each member of the assembly. He relied on the
decision of this Court in the case of Vasant @ Girish Akbarasab
Sanavale v . State of Karnataka , reported in 2025 SCC OnLine
SC 337 , to submit that a person may be held guilty for an offence
committed by another member of the assembly, even if it was
contrary to their personal intention, so long as the act was in
prosecution of the common object and the individual continued to
be a part of the assembly at the material time. The provision
focuses on collective action directed at a shared objective.

vi. He further relied upon the decision of this Court in Mizaji & Ors.
v . State of U.P. , reported in 1958 SCC OnLine SC 95 , to submit
that where a body of persons go armed to take forcible possession
of land, it is reasonably inferred that they knew murder was likely
to be committed in the course of achieving the object.

vii. In the present case the appellants were armed with lethal
weapons. Further, their presence at the place of occurrence as
part of the mob is proved by the oral testimony of the witnesses.
Therefore, it can be inferred that the appellants knew that death
was likely to be caused by the assembly in an attempt to take
forcible possession of the land.
Criminal Appeal No. 1187-1188 of 2014 Page 38 of 74

V. ANALYSIS
42. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the only question that
falls for our consideration is whether the High Court committed any
error in passing the impugned judgment and order.

43. We take notice of the fact that 24 accused persons were put to trial,
excluding 5 persons who were declared as absconding accused. At
the conclusion of the trial, 21 persons stood convicted. Whereas, 3
persons came to be acquitted. Out of the 21 convicts, 19 preferred
appeals before the High Court. The High Court upheld the
conviction of 12 and acquitted 7. Therefore, 12 convicts whose
conviction was affirmed came before this Court in appeal. However,
the appeals stood abated in so far as two appellants were concerned
vide orders of this Court (Md. Muslim in Criminal Appeal No.
1187/2014 and Kaimuddin in Criminal Appeal 1329/2014).
Accordingly, the present two appeals concern 10 convicts. The
chart as below would make the picture further clear:-

Criminal Appeal No. 1187-1188 of 2014 Page 39 of 74

44. There is no gainsaying that appreciation of evidence primarily falls
within the domain of the trial court, and the first appellate court.
However, if the courts below could be said to have faltered by
overlooking material aspects resulting in the miscarriage of justice,
this Court in exercise of its jurisdiction under Article 136 is duty-
bound to intervene and look into the matter closely.
A. Interpretation of Section 149 of the Indian Penal Code
45. Albeit the essentials of Section 149 of the IPC are oft-repeated and
firmly established, they are reiterated herein for the sake of
convenience:
i. There must be an assembly of five or more persons;

ii. An offence must be committed by any member of that unlawful
assembly;
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iii. The offence committed must be in order to attain the common
object of that assembly, or
iv. The members of the assembly must have the knowledge that
the particular offence is likely to be committed in order to attain
the common object.

46. Section 149 of the IPC stipulates that if an offence is committed by
any member of an unlawful assembly (of 5 or more persons) in
prosecution of the common object (as defined in Section 141 of the
IPC) of that assembly, or if the members of the assembly knew that
the said offence is likely to be committed in prosecution of the said
common object, every person who, at the time of committing that
offence, was a member of that assembly, will be guilty of that offence.

47. The first limb of the provision envisages the commission of an
offence by a member of an unlawful assembly in order to attain the
common object of that assembly. Whereas, the second limb of the
provision encapsulates knowledge on the part of a member of the
unlawful assembly qua the likelihood of such offence being
committed in order to attain the common object.

48. The distinction between the two limbs of Section 149 of the IPC was
elucidated in the decision of Mizaji v . State of U.P. , reported in
1958 SCC OnLine SC 95 . The relevant observations are reproduced
hereinbelow:-
“ 6. This section has been the subject-matter of
interpretation in the various High Courts of India, but
every case has to be decided on its own facts. The
first part of the section means that the offence
committed in prosecution of the common object must
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be one which is committed with a view to accomplish
the common object. It is not necessary that there
should be a preconcert in the sense of a meeting of
the members of the unlawful assembly as to the
common object; it is enough if it is adopted by all the
members and is shared by all of them. In order that
the case may fall under the first part the offence
committed must be connected immediately with the
common object of the unlawful assembly of which the
accused were members. Even if the offence
committed is not in direct prosecution of the common
object of the assembly, it may yet fall under Section
149 if it can be held that the offence was such as the
members knew was likely to be committed. The
expression ‘know’ does not mean a mere possibility,
such as might or might not happen. For instance, it is
a matter of common knowledge that when in a village
a body of heavily armed men set out to take a woman
by force, someone is likely to be killed and all the
members of the unlawful assembly must be aware of
that likelihood and would be guilty under the second
part of Section 149. Similarly, if a body of persons go
armed to take forcible possession of the land, it would
be equally right to say that they have the knowledge
that murder is likely to committed if the
circumstances as to the weapons carried and other
conduct of the members of the unlawful assembly
clearly point to such knowledge on the part of them
all. There is a great deal to be said for the opinion of
Couch, C.J., in Sabid Ali case [(1873) 20 WR 5 Cr]
that when an offence is committed in prosecution of
the common object, it would generally be an offence
which the members of the unlawful assembly knew
was likely to be committed in prosecution of the
common object. That, however, does not make the
converse proposition true; there may be cases which
would come within the second part, but not within the
first. The distinction between the two parts of Section
149, Indian Penal Code cannot be ignored or
obliterated. In every case it would be an issue to be
determined whether the offence committed falls
within the first part of Section 149 as explained above
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or it was an offence such as the members of the
assembly knew to be likely to be committed in
prosecution of the common object and falls within the
second part .”
(Emphasis supplied)

49. The expression “in prosecution of the common object” means that
the offence committed must be directly connected with the common
object of the assembly, or that the act, upon appraisal of the
evidence, must appear to have been done with a view to accomplish
that common object. In Charan Singh v. State of U.P. , reported in
(2004) 4 SCC 205 , this Court held that the test for determining the
“common object” of an unlawful assembly must be assessed in light
of the conduct of its members, as well as the surrounding
circumstances. It can be deduced from the nature of the assembly,
the weapons carried by its members, and their conduct before,
during, or after the incident. The relevant observations read as thus:-
“ 13. […]Section 149 IPC has its foundation on
constructive liability which is the sine qua non for its
operation. The emphasis is on the common object and
not on common intention. Mere presence in an
unlawful assembly cannot render a person liable
unless there was a common object and he was
actuated by that common object and that object is one
of those set out in Section 141. Where common object
of an unlawful assembly is not proved, the accused
persons cannot be convicted with the help of Section
149. The crucial question to determine is whether the
assembly consisted of five or more persons and
whether the said persons entertained one or more of
the common objects, as specified in Section 141. It
cannot be laid down as a general proposition of law
that unless an overt act is proved against a person,
who is alleged to be a member of an unlawful
assembly, it cannot be said that he is a member of an
assembly. The only thing required is that he should
Criminal Appeal No. 1187-1188 of 2014 Page 43 of 74

have understood that the assembly was unlawful
and was likely to commit any of the acts which fall
within the purview of Section 141. The word “object”
means the purpose or design and, in order to make it
“common”, it must be shared by all. In other words,
the object should be common to the persons, who
compose the assembly, that is to say, they should all
be aware of it and concur in it. A common object may
be formed by express agreement after mutual
consultation, but that is by no means necessary. It
may be formed at any stage by all or a few members
of the assembly and the other members may just join
and adopt it. Once formed, it need not continue to be
the same. It may be modified or altered or abandoned
at any stage. The expression “in prosecution of
common object” as appearing in Section 149 has to
be strictly construed as equivalent to “in order to
attain the common object”. It must be immediately
connected with the common object by virtue of the
nature of the object. There must be community of
object and the object may exist only up to a particular
stage, and not thereafter. Members of an unlawful
assembly may have community of object up to a
certain point beyond which they may differ in their
objects and the knowledge, possessed by each
member of what is likely to be committed in
prosecution of their common object may vary not only
according to the information at his command, but also
according to the extent to which he shares the
community of object, and as a consequence of this the
effect of Section 149 IPC may be different on different
members of the same assembly.
14. “Common object” is different from a “common
intention” as it does not require a prior concert and a
common meeting of minds before the attack. It is
enough if each has the same object in view and their
number is five or more and that they act as an
assembly to achieve that object. The “common object”
of an assembly is to be ascertained from the acts and
language of the members composing it, and from a
consideration of all the surrounding circumstances. It
may be gathered from the course of conduct adopted
Criminal Appeal No. 1187-1188 of 2014 Page 44 of 74

by the members of the assembly. What the common
object of the unlawful assembly is at a particular
stage of the incident is essentially a question of fact
to be determined, keeping in view the nature of the
assembly, the arms carried by the members, and the
behaviour of the members at or near the scene of the
incident. It is not necessary under law that in all
cases of unlawful assembly, with an unlawful
common object, the same must be translated into
action or be successful. Under the Explanation to
Section 141, an assembly which was not unlawful
when it was assembled, may subsequently become
unlawful. It is not necessary that the intention or the
purpose, which is necessary to render an assembly
an unlawful one comes into existence at the outset.
The time of forming an unlawful intent is not material.
An assembly which, at its commencement or even for
some time thereafter, is lawful, may subsequently
become unlawful. In other words, it can develop
during the course of incident at the spot eo instanti. ”
(Emphasis supplied)

50. To put it briefly, Section 149 of the IPC makes all the members of
an unlawful assembly constructively liable when an offence is
committed by any member of such assembly with a view to
accomplish the common object of that assembly or the members of
the assembly knew that such an offence was likely to be committed.
However, such liability can be fastened only upon proof that the act
was done in pursuance of a common object. The essentials of Section
149 were succinctly explained by the Constitution Bench in the
decision of Mohan Singh v . State of Punjab , reported in AIR 1963
SC 174 . It reads thus:-
“ 8. The true legal position in regard to the essential
ingredients of an offence specified by Section 149 are
not in doubt. Section 149 prescribes for vicarious or
constructive criminal liability for all members of an
unlawful assembly where an offence is committed by
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any member of such 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. It
would thus be noticed that one of the essential
ingredients of Section 149 is that the offence must
have been committed by any member of an unlawful
assembly, and Section 141 makes it clear that it is
only where five or more persons constituted an
assembly that an unlawful assembly is born,
provided, of course, the other requirements of the said
section as to the common object of the persons
composing that assembly are satisfied. In other
words, it is an essential condition of an unlawful
assembly that its membership must be five or
more.[…] ”
(Emphasis supplied)

51. Undoubtedly, once the existence of a common object amongst the
members of an unlawful assembly is established, it is not imperative
to prove that each member committed an overt act. The liability
under this provision is attracted once it is certain that an individual
had knowledge that the offence committed was a probable
consequence in furtherance of the common object, thereby rendering
him a “member” of the unlawful assembly.


52. While ascertaining this fact, it is of utmost importance to consider
whether the assembly consisted of some persons who were merely
passive onlookers who had joined the assembly as a matter of idle
curiosity, without the knowledge of the common object of the
assembly, since such persons cannot be said to be members of the
unlawful assembly. We say so because, the nucleus of Section 149
is “common object”.
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a. Innocent Bystander v/s Member of an Unlawful Assembly
53. Once the two broad essentials of Section 149 are fulfilled, i.e., (1)
an offence is committed by any member of an unlawful assembly in
prosecution of the common object, or (2) if the members of the
assembly knew that the said offence is likely to be committed in
prosecution of the said common object, every person who at the at
the time of commission of the offence was a member of the assembly
is to be held guilty of that offence.

54. At the same time, mere presence at the scene does not ipso facto
render a person a member of the unlawful assembly, unless it is
established that such an accused also shared its common object. A
mere bystander, to whom no specific role is attributed, would not fall
within the ambit of Section 149 of the IPC. The prosecution has to
establish, through reasonably direct or indirect circumstances, that
the accused persons shared a common object of the unlawful
assembly. The test to determine whether a person is a passive
onlooker or an innocent bystander is the same as that applied to
ascertain the existence of a common object. The existence of a
common object is to be inferred from the circumstances of each case,
such as:
a. the time and place at which the assembly was formed;
b. the conduct and behaviour of its members at or near the scene
of the offence;
c. the collective conduct of the assembly, as distinct from that of
individual members;

d. the motive underlying the crime;
e. the manner in which the occurrence unfolded;
Criminal Appeal No. 1187-1188 of 2014 Page 47 of 74


f. the nature of the weapons carried and used;
g. the nature, extent, and number of the injuries inflicted, and
other relevant considerations.
i. Rule of Prudence in Convicting Members of an Unlawful
Assembly
55. This Court, as a matter of caution, has enunciated parameters to
safeguard innocent spectators or passive onlookers from being
convicted merely on account of their presence. This cautionary rule,
however, does not dilute the doctrine of constructive liability, under
which proof of an overt act by each individual is not indispensable.
Where the presence of a large number of persons is established and
many are implicated, prudence mandates strict adherence to this
rule of caution.

56. In Masalti v . State of Uttar Pradesh , reported in 1964 SCC
OnLine SC 30 , 40 persons were charged with having committed
several offences, the principal ones of which were under Section 302
r/w Section 149 of the IPC. The accused persons were alleged to be
armed with guns, spears, swords, gandasas , and a lathi . While
dealing with the oral evidences, the High Court observed that most
of the witnesses belonged to the prosecution faction. Further, the
evidence of all the witnesses gave an account of the incident in
similar terms. The High Court held that unless at least four
witnesses give a consistent account against the accused persons, the
allegations against them cannot be said to have been proved beyond
reasonable doubt. A Four-judge Bench of this Court approved the
test applied by the High Court and held that a conviction in cases
involving a large number of offenders and victims can be sustained
Criminal Appeal No. 1187-1188 of 2014 Page 48 of 74

only when supported by the consistent account of two or three, or
more, reliable witnesses. The relevant observations are reproduced
hereinbelow:-
“ 16. Mr Sawhney also urged that the test applied by
the High Court in convicting the appellants is
mechanical. He argues that under the Indian
Evidence Act, trustworthy evidence given by a single
witness would be enough to convict an accused
person, whereas evidence given by half a dozen
witnesses which is not trustworthy would not be
enough to sustain the conviction. That, no doubt is
true; but where a criminal court has to deal with
evidence pertaining to the commission of an offence
involving a large number of offenders and a large
number of victims, it is usual to adopt the test that the
conviction could be sustained only if it is supported
by two or three or more witnesses who give a
consistent account of the incident. In a sense, the test
may be described as mechanical; but it is difficult to
see how it can be treated as irrational or
unreasonable. Therefore, we do not think any
grievance can be made by the appellants against the
adoption of this test. If at all the prosecution may be
entitled to say that the seven accused persons were
acquitted because their cases did not satisfy the
mechanical test of four witnesses, and if the said test
had not been applied, they might as well have been
convicted. It is, no doubt, the quality of the evidence
that matters and not the number of witnesses who
give such evidence. But sometimes it is useful to
adopt a test like the one which the High Court has
adopted in dealing with the present case. ”
(Emphasis supplied)


57. In Muthu Naicker v . State of T.N. , reported in (1978) 4 SCC 385 ,
two factions in a village were involved in a dispute over the laying of
pipelines. In the facts of the case, 28 persons were put to trial and
34 witnesses were examined, 6 of whom were injured eyewitnesses.
Criminal Appeal No. 1187-1188 of 2014 Page 49 of 74

The Court noted that whenever a fight amongst factions happens in
rural society, numerous people appear on the scene as curious
spectators. In such a case, mere presence in the assembly shall not
be treated as evidence of the fact that the person was a member of
the unlawful assembly. It further observed that the presence of those
accused would be accepted as satisfactorily proved if there was
reliable evidence of at least three witnesses against them. The
relevant extracts have been reproduced hereinbelow:-
“ 6. Where there is a melee and a large number of
assailants and number of witnesses claim to have
witnessed the occurrence from different places and at
different stages of the occurrence and where the
evidence as in this case is undoubtedly partisan
evidence, the distinct possibility of innocent being
falsely included with guilty cannot be easily ruled
out. In a faction-ridden society where an occurrence
takes place involving rival factions it is but inevitable
that the evidence would be of a partisan nature. In
such a situation to reject the entire evidence on the
sole ground that it is partisan is to shut one's eyes to
the realities of the rural life in our country. Large
number of accused would go unpunished if such an
easy course is charted. Simultaneously, it is to be
borne in mind that in a situation as it unfolds in the
case before us, the easy tendency to involve as many
persons of the opposite faction as possible by merely
naming them as having been seen in the melee is a
tendency which is more often discernible and is to be
eschewed and, therefore, the evidence has to be
examined with utmost care and caution. It is in such
a situation that this Court in Masalti v. State of
U.P. [AIR 1965 SC 202 : (1964) 8 SCR 133 : (1965) 1
Cri LJ 226] adopted the course of adopting a
workable test for being assured about the role
attributed to every accused. To some extent it is
inevitable that we should adopt that course.
7. Before we proceed to look into the evidence it is
also necessary to make it clear that whenever in
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uneventful rural society something unusual occurs,
more so where the local community is faction ridden
and a fight occurs amongst factions, a good number
of people appear on the scene not with a view to
participating in the occurrence but as curious
spectators. In such an event mere presence in the
unlawful assembly should not be treated as leading
to the conclusion that the person concerned was
present in the unlawful assembly as a member of the
unlawful assembly. Vicarious liability would attach
to every member of the unlawful assembly if that
member of the unlawful assembly either participates
in the commission of the offence by overt act or knows
that the offence which is committed was likely to be
committed by any member of the unlawful assembly
in prosecution of the common object of the unlawful
assembly and becomes or continues to remain a
member of the unlawful assembly. If one becomes a
member of the unlawful assembly and his
association in the unlawful assembly is clearly
established, his participation in commission of the
offence by overt act is not required to be proved if it
could be shown that he knew that such offence was
likely to be committed in prosecution of the common
object of the unlawful assembly. But while finding out
whether a person was a curious spectator or a
member of an unlawful assembly it is necessary to
keep in mind the life in a village ordinarily uneventful
except for small squabbles where the village
community is faction ridden and when a serious
crime is committed people rush just to quench their
thirst to know what is happening. In this case we will
have occasion to point out that there are accused who
are convicted with the aid of Section 149 of the IPC
but in respect of whom we have no doubt in our minds
that they were mere spectators and could hardly be
said to be members of the unlawful assembly.
xxx
39. Now, turning to the case of the rest of the
accused, we would ordinarily accept the presence of
those accused as satisfactorily proved in respect of
whom at least there is reliable evidence of three
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witnesses and while analysing the evidence we
would be rather slow to accept the evidence of PW 19
standing by itself who, as we would presently point
out, has been materially contradicted by her
statement under Section 161, CrPC Approaching the
matter from this angle, we would briefly set out the
evidence. The presence of Accused 6 is consistently
spoken to by PWs 1, 19, 20 and 24 and that evidence
establishes the fact that Accused 6 was a member of
unlawful assembly and charge under Section 148
IPC is brought home to him.
xxx
54. Turning now to the Charges under Heads 4, 8,
10, 12, 14, 18, 20, 22, 24, 26 and 30, it must be
pointed out that under these charges all the accused
were convicted with the aid of Section 149 IPC in
respect of specific offences committed by each
individual accused in the case of one or the other
prosecution witness. Without elaborating we must at
once say that in a case of this nature where a large
crowd collected all of whom are not shown to be
sharing the common object of the unlawful assembly,
a stray assault by any one accused on any particular
witness could not be said to be an assault in
prosecution of the common object of the unlawful
assembly so that the remaining accused could be
imputed the knowledge that such an offence was
likely to be committed in prosecution of the common
object of the unlawful assembly. To illustrate, when
it is alleged that a certain accused pelted a stone and
caused an injury to some one who came within the
trajectory of the stone, could it be said that all other
members of the unlawful assembly knew that such
an offence would be committed? We are, therefore,
not inclined to sustain the conviction of the accused
for charges under Heads 4, 8, 10, 12, 14, 18, 20, 22,
24, 26 and 30 and accordingly the conviction of the
accused under the aforementioned charges and the
sentence imposed for the same are set aside and they
are acquitted of these charges. ”
(Emphasis supplied)

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58. Where allegations are levelled against a large number of persons,
the courts must carefully scrutinize the evidence, more particularly,
if the evidence available on record is hazy. In Sherey v . State of
U.P. , reported in 1991 Supp (2) SCC 437 , six eyewitnesses had
deposed about the incident, and the complainant had attributed
overt acts to nine accused persons. One of the eyewitnesses, therein
in his deposition, named further five accused persons who attacked
the deceased. Regarding the others, he had mentioned that the
accused persons were armed with lathis ; no overt act was attributed
to anyone. In such circumstances, this Court cautioned saying that
the evidence of witnesses should be subjected to a close scrutiny vis-
their former statements. This Court thought it fit to convict only
à-vis
those who were consistently named from the stage of the earliest
report. The relevant extract has been reproduced thus:-
“ 4. We have carefully gone through the evidence. We
have no doubt that all the eye-witnesses were
present. Nothing significant has been elicited in their
cross-examination. However, the eye-witnesses
simply named these appellants and identified them.
So, the question is whether it is safe to convict all the
appellants. In a case of this nature, the evidence of
the witnesses has to be subjected to a close scrutiny
in the light of their former statements. The earliest
report namely the FIR has to be examined carefully.
No doubt in their present deposition they have
described the arms carried by the respective accused
but we have to see the version given in the earliest
report. In that report PW 1 after mentioning about the
earlier proceedings has given a fairly detailed
account of the present occurrence. He has mentioned
the names of the witnesses and also the names of the
three deceased persons. Then he proceeded to give a
long list of names of the accused and it is generally
stated that all of them were exhorting and
surrounded the PWs and the other Hindus and
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attacked them. But to some extent specific overt acts
are attributed to appellants 1, 4, 5, 7, 8, 10, 17, 22
and 25. It is mentioned therein that these nine
accused were armed with deadly weapons and were
seen assaulting the deceased Ram Narain and
others. Now in the present deposition he improved his
version and stated that in addition to these nine
accused, five more persons also attacked the
deceased and others. In view of this variation we
think that it is safe to convict only such of the
appellants who are consistently mentioned as having
participated in the attack from the stage of earliest
report. With regards the rest PW 1 mentioned in an
omnibus way that they were armed with lathis. He
did not attribute any overt act to any one of them.
Further, the medical evidence rules out any lathis
having been used. The doctor found only incised
injuries on the dead bodies and on the injured PWs.
Therefore, it is difficult to accept the prosecution case
that the other appellants were members of the
unlawful assembly with the object of committing the
offences with which they are charged. We feel it is
highly unsafe to apply Section 149 IPC and make
everyone of them constructively liable. But so far as
the above nine accused are concerned the
prosecution version is consistent namely that they
were armed with lethal weapons like swords and
axes and attacked the deceased and others. This
strong circumstance against them establishes their
presence as well as their membership of the unlawful
assembly.[…]”
(Emphasis supplied)


59. In Akbar Sheikh v . State of W.B. , reported in (2009) 7 SCC 415 ,
this Court observed that in cases of convoluted facts, the rule of
prudence should be applied. The Court held that something more
than their being cited as an accused in a witness box would be
necessary. There must be some material before the Court to form an
Criminal Appeal No. 1187-1188 of 2014 Page 54 of 74

opinion that the accused had shared a common object. The relevant
observations read as under:-
“ 41. In a case of this nature, the rule of prudence
should be applied. Something more than their being
cited as an accused in a witness box would be
necessary. The court must have before it some
materials to form an opinion that they had shared a
common object. It has not been denied or disputed
that whereas five brothers were implicated as one
brother had deposed against PW 9 and sons had also
been implicated because a father had deposed
against them. Whereas PW 1 in his deposition denied
that the accused deposed in the case in which a son
was found to be guilty of murder of Dol Gobinda
Acharya (ex-Pradhan), PW 9 admitted that he
committed the said murder in broad daylight. The
defence that there were other reasons for their false
implication cannot also be ruled out.
xxx
43. We are not unmindful that Akbar and Kanku
have been named by both the witnesses but even
against them no overt act has been attributed. We,
therefore, are of the opinion that doubts legitimately
arise as regards their presence and/or sharing of
common object. While saying so, we are not oblivious
of the fact that the incident had taken place at the
dead of night. Enmity between two groups in the
village is admitted. But, we cannot also lose sight of
the fact that a person should not suffer rigorous
imprisonment for life although he might have just
been a bystander without anything more. ”
(Emphasis supplied)

60. In Subal Ghorai ( supra ), about 200/250 persons armed with
weapons had launched an attack, in which three persons
succumbed to their injuries. The trial court convicted 36 persons.
The Court held that the constructive liability enshrined in Section
149 of the IPC can be extended to the acts done only in pursuance
Criminal Appeal No. 1187-1188 of 2014 Page 55 of 74

of the common object. The commission of an overt act by such a
person would prove that he shared the common object. It ought to
be proved that the accused was not only a member of the unlawful
assembly but shared the common object of the assembly at all stages
that he was a part of the assembly. At the same time, the Court left
a note of caution stating that the courts must guard against the
possibility of convicting mere passive onlookers. The relevant
observations read thus:-
“ 52. The above judgments outline the scope of Section
149 IPC. We need to sum up the principles so as to
examine the present case in their light. Section 141
IPC defines unlawful assembly to be an assembly of
five or more persons. They must have common object
to commit an offence. Section 142 IPC postulates that
whoever being aware of facts which render any
assembly an unlawful one intentionally joins the
same would be a member thereof. Section 143 IPC
provides for punishment for being a member of
unlawful assembly. Section 149 IPC provides for
constructive liability of every person of an unlawful
assembly if an offence is committed by any member
thereof in prosecution of the common object of that
assembly or such of the members of that assembly
who knew to be likely to be committed in prosecution
of that object. The most important ingredient of
unlawful assembly is common object. Common object
of the persons composing that assembly is to do any
act or acts stated in clauses “First”, “Second”,
“Third”, “Fourth” and “Fifth” of that section. Common
object can be formed on the spur of the moment.
Course of conduct adopted by the members of
common assembly is a relevant factor. At what point
of time common object of unlawful assembly was
formed would depend upon the facts and
circumstances of each case. Once the case of the
person falls within the ingredients of Section 149 IPC,
the question that he did nothing with his own hands
would be immaterial. If an offence is committed by a
Criminal Appeal No. 1187-1188 of 2014 Page 56 of 74

member of the unlawful assembly in prosecution of
the common object, any member of the unlawful
assembly who was present at the time of commission
of offence and who shared the common object of that
assembly would be liable for the commission of that
offence even if no overt act was committed by him. If
a large crowd of persons armed with weapons
assaults intended victims, all may not take part in the
actual assault. If weapons carried by some members
were not used, that would not absolve them of
liability for the offence with the aid of Section 149 IPC
if they shared common object of the unlawful
assembly.
53. But this concept of constructive liability must not
be so stretched as to lead to false implication of
innocent bystanders. Quite often, people gather at the
scene of offence out of curiosity. They do not share
common object of the unlawful assembly. If a general
allegation is made against large number of people,
the court has to be cautious. It must guard against
the possibility of convicting mere passive onlookers
who did not share the common object of the unlawful
assembly. Unless reasonable direct or indirect
circumstances lend assurance to the prosecution
case that they shared common object of the unlawful
assembly, they cannot be convicted with the aid of
Section 149 IPC. It must be proved in each case that
the person concerned was not only a member of the
unlawful assembly at some stage, but at all the
crucial stages and shared the common object of the
assembly at all stages. The court must have before it
some materials to form an opinion that the accused
shared common object. What the common object of
the unlawful assembly is at a particular stage has to
be determined keeping in view the course of conduct
of the members of the unlawful assembly before and
at the time of attack, their behaviour at or near the
scene of offence, the motive for the crime, the arms
carried by them and such other relevant
considerations. The criminal court has to conduct this
difficult and meticulous exercise of assessing
evidence to avoid roping innocent people in the crime.
Criminal Appeal No. 1187-1188 of 2014 Page 57 of 74

These principles laid down by this Court do not dilute
the concept of constructive liability. They embody a
rule of caution .”
(Emphasis supplied)


61. The law on the point can be summarized to the effect that where
there are general allegations against a large number of persons, the
court must remain very careful before convicting all of them on vague
or general evidence. Therefore, the courts ought to look for some
cogent and credible material that lends assurance. It is safe to
convict only those whose presence is not only consistently
established from the stage of FIR, but also to whom overt acts are
attributed which are in furtherance of the common object of the
unlawful assembly.
b. Principles of Law relating to Appreciation of Evidence of the
Witnesses
62. This Court in State of Madhya Pradesh v . Balveer Singh ,
reported in 2025 SCC OnLine SC 390 , wherein one of us, J.B.
Pardiwala, J., was a part of the Bench, had underscored two
principal considerations for assessing the value of the evidence of
eyewitnesses. It read thus:-
“ 57. To put it simply, in assessing the value of the
evidence of the eyewitnesses, two principal
considerations are whether, in the circumstances of
the case, it is possible to believe their presence at the
scene of occurrence or in such situations as would
make it possible for them to witness the facts
deposed to by them and secondly, whether there is
anything inherently improbable or unreliable in their
evidence. In respect of both these considerations, the
circumstances either elicited from those witnesses
themselves or established by other evidence tending
to improbabilise their presence or to discredit the
Criminal Appeal No. 1187-1188 of 2014 Page 58 of 74

veracity of their statements, will have a bearing upon
the value which a Court would attach to their
evidence. Although in cases where the plea of the
accused is a mere bald assertion of tutoring, yet the
evidence of the prosecution witnesses has to be
examined on its own merits, where the accused
raises a definite plea or puts forward a positive case
which is inconsistent with that of the prosecution, the
nature of such plea or case and the probabilities in
respect of it will also have to be taken into account
while assessing the value of the prosecution
evidence. ”
(Emphasis supplied)

63. At this stage, we would also like to discuss the established
principles of law on the evaluation of the testimony of injured
eyewitnesses. The testimony of an injured eyewitness is accorded a
special status in law because the injuries on the person lends
credence to the fact that the witness was present at the scene of the
occurrence. The courts lend credence to the testimony of an injured
eyewitness, assuming that the witness would not want to let his
actual assailant go unpunished. Thus, unless there are cogent
grounds for disbelieving the evidence of an eyewitness due to major
contradictions and discrepancies, ordinarily, such evidence should
be relied upon.

64. In Balu Sudam Khalde & Anr. v. State of Maharashtra ,
reported in (2023) 13 SCC 365 , one of us, J.B. Pardiwala, J., had
the benefit of expounding the law on this subject as follows:-
“ 26. When the evidence of an injured eyewitness is to
be appreciated, the undernoted legal principles
enunciated by the courts are required to be kept in
mind:
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26.1. The presence of an injured eyewitness at the
time and place of the occurrence cannot be doubted
unless there are material contradictions in his
deposition.
26.2. Unless, it is otherwise established by the
evidence, it must be believed that an injured witness
would not allow the real culprits to escape and falsely
implicate the accused.
26.3. The evidence of injured witness has greater
evidentiary value and unless compelling reasons
exist, their statements are not to be discarded lightly.
26.4. The evidence of injured witness cannot be
doubted on account of some embellishment in natural
conduct or minor contradictions.
26.5. If there be any exaggeration or immaterial
embellishments in the evidence of an injured witness,
then such contradiction, exaggeration or
embellishment should be discarded from the
evidence of injured, but not the whole evidence.
26.6. The broad substratum of the prosecution
version must be taken into consideration and
discrepancies which normally creep due to loss of
”
memory with passage of time should be discarded.

65. Keeping in view the above principles of law and the rule of caution,
we shall now look into and discuss the evidence on record. The case
in hand revolves around the evidence of five injured eyewitnesses,
and two eyewitnesses to the occurrence. Upon a careful scrutiny of
the evidence, we find that the oral testimony of the prosecution
witnesses is marred by material inconsistencies and embellishments
striking at to the root of the matter.

66. The oral evidence of PW-20, an injured eyewitness, on whose police
statement the FIR was registered, would indicate that he had no
dispute with the accused persons regarding the settlement of land.
Further, he denied stating before the police that the accused persons
Criminal Appeal No. 1187-1188 of 2014 Page 60 of 74

were hiding because they were opposed to the harvesting of paddy.
He was unable to identify the persons harvesting the paddy, and
rather described them as labourers. In the fardbeyan , he stated that
a day prior to the incident, he had harvested paddy from the field
that was allotted to him by the Government and, for this reason, the
accused nos. 2, 16, 17, and 21 respectively, alongwith 400 to 500
other persons, were hiding with weapons in order to stop him from
further harvesting the paddy. More importantly, he admitted that he
was unable to disclose the names of the assailants as stated by the
PWs 3, 6, and 10 respectively, as he fell unconscious after the
assault. However, in the fardbeyan , while naming forty-one
assailants, the PW-20 stated that the PWs 3, 5, 6, and 10 respectively
had told him about the assailants.

67. The deposition of the PW-20 stands at variance with his fardbeyan .
In his oral testimony, the PW-20 admitted that he fell unconscious
after the assault and, therefore, was unable to name the assailants
who had attacked the PWs 3, 6, and 10 respectively. In stark
contrast, his fardbeyan categorically records that the PWs 3, 5, 6,
and 10 respectively had informed him that forty others, armed with
various weapons, had participated in the assault. This contradiction
strikes at the root of his credibility. To add to this, the PW-3 deposed
that he had never disclosed the names of forty assailants to the PW-
20, thereby further undermining the credibility of the witness.

68. The PW-3, an injured eyewitness, in his oral evidence has attributed
overt acts to the accused nos. 12 and 10 respectively. He stated that
the accused no. 10 assaulted him with a gandasa on his leg.
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However, the medical evidence on record indicates not only the
absence of any injury on the leg of the witness but also that an injury
caused by a gandasa would ordinarily result in an incised wound. It
further emerges from his deposition that he reached the scene of
occurrence later, upon hearing the sound of two gunshots. He also
admitted that he had not disclosed the names of forty accused
persons to the PW-20.
i. Conflict between the Ocular Version and the Medical
Evidence
69. The law on conflict between the medical evidence and ocular
evidence has been succinctly explained in Abdul Syeed v. State of
M.P. , reported in (2010) 10 SCC 259 , succinctly explained thus:-
“ Medical evidence versus ocular evidence
32. In Ram Narain Singh v. State of Punjab [(1975) 4
SCC 497 : 1975 SCC (Cri) 571 : AIR 1975 SC 1727]
this Court held that where the evidence of the
witnesses for the prosecution is totally inconsistent
with the medical evidence or the evidence of the
ballistics expert, it amounts to a fundamental defect
in the prosecution case and unless reasonably
explained it is sufficient to discredit the entire case.
xxx
38. In State of U.P. v. Hari Chand [(2009) 13 SCC 542
: (2010) 1 SCC (Cri) 1112] this Court reiterated the
aforementioned position of law and stated that : (SCC
p. 545, para 13)
“13. … In any event unless the oral evidence is
totally irreconcilable with the medical evidence, it
has primacy.”
39. Thus, the position of law in cases where there is
a contradiction between medical evidence and ocular
evidence can be crystallised to the effect that though
the ocular testimony of a witness has greater
evidentiary value vis-à-vis medical evidence, when
medical evidence makes the ocular testimony
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improbable, that becomes a relevant factor in the
process of the evaluation of evidence. However,
where the medical evidence goes so far that it
completely rules out all possibility of the ocular
evidence being true, the ocular evidence may be
disbelieved .”
(Emphasis supplied)

70. The PW-5, an injured eye-witness, has in his oral evidence
attributed overt acts to the accused nos. 8 and 6 respectively.
However, the medical evidence does not support the version of
assault as narrated by the witness. While both, i.e., the accused nos.
8 and 6 respectively, are alleged to have assaulted the witness with
lathis , the medical evidence discloses only incised wounds on his
body. His oral testimony further indicates that he had reached the
scene of the occurrence much after the deceased had already been
shot.

71. The oral testimony of the PW-6, another injured eyewitness, would
reveal that he was assaulted even before he could reach the scene of
the occurrence. It appears from the materials on record that his
statement was recorded on 30.11.1988, i.e., 10 days after the
incident. Whereas, according to the investigating officer, he had
recorded the statement of the said witness on 21.11.1988. The PW-
6 has attributed overt acts to the accused nos. 14, 7, and 13
respectively; however, no other witness has said anything about the
complicity of the accused nos. 14, 7, and 13 respectively. From the
oral testimony of PW-10, it emerges that he was assaulted by one
Jalla and Masiyan, who were neither named as accused in the FIR
nor charge-sheeted. He further denied having stated before the police
that the accused no. 10 had assaulted him.
Criminal Appeal No. 1187-1188 of 2014 Page 63 of 74


72. Further, what is significant from the oral testimony of the PW-4 is
that he does not say anything about the presence of any of the
appellants. On the contrary, he states that there were a large number
of persons at the spot, and he was unable to distinguish between the
assailants and the spectators. However, the PW-23, i.e., the
investigating officer, has deposed that the PW-4 had disclosed before
him many names. Further, the PW-8 had not stated that the accused
nos. 14, 11, and 17 respectively had assaulted her husband. In fact,
she had also disclosed different names.

73. In the present case, prudence demands that we should believe the
presence or participation of only those accused as satisfactorily
established with the aid of at least two reliable witnesses. The oral
testimonies of the PWs 3 and 5 respectively, also suffer from material
contradictions.

74. Likewise, the accused nos. 7, 13, and 14 respectively have been
implicated only by the PW-6. Their presence or participation finds no
support from the testimony of any other witness, nor stands
corroborated by any intrinsic evidence on record. So far as accused
no. 9 is concerned the only evidence against him is the identification
by the PW-20, which, in the absence of any supporting evidence,
cannot be regarded as sufficient to bring home his guilt. The
presence of the accused no. 10 is also doubtful.

75. According to the PW-3 he was assaulted by accused no. 10 with a
gandasa. However, the evidence reveals something else. The
fardbeyan recorded at the instance of the PW-20 does not name the
Criminal Appeal No. 1187-1188 of 2014 Page 64 of 74

accused no. 10 as one of the assailants. Further, there is nothing
cogent or credible to indicate the presence or participation of the
accused nos. 11 and 12 respectively. Lastly, there is no credible
evidence even against the accused no. 17 except an omnibus
identification by the PW-20.

76. In the aforesaid view of the matter, we hold that the accused nos.
6, 7, 8, 9, 10, 11, 12, 13, and 14 respectively are entitled to the
benefit of doubt. Their conviction cannot be sustained in the eye of
law.

77. A common man may legitimately argue that if all the eyewitnesses
are to be disbelieved then who is to explain the various injuries
suffered by them. In other words, a common man may say that it is
not even the case of the accused persons that no injuries were
suffered by the eyewitnesses or that they were self-inflicted. In such
circumstances, why should the eyewitnesses be outrightly
disbelieved?

78. It needs to be emphasized that injuries on the eyewitnesses, at the
best, may ensure their presence at the scene of occurrence but that
is not enough. Before a criminal court even accepts the testimony of
an injured eyewitness, it has to be satisfied that he is a truthful
witness and had no reason to falsely implicate the accused persons.
We have extensively explained or rather discussed the various
infirmities in the oral evidence of all the eyewitness. These
eyewitnesses in their police statements recorded under Section 161
of the Cr.P.C. have gone to the extent of implicating even those
Criminal Appeal No. 1187-1188 of 2014 Page 65 of 74

persons who were ultimately not arrayed as an accused in the
chargesheet including those who ultimately came to be acquitted by
the trial court.

79. In cases like the one in hand, the courts must make an attempt to
separate grain from the chaff, the truth from falsehood, yet this could
only be possible when the truth is separate from the falsehood.

80. In the aforesaid context, we may refer to the decision of this Court
in Balaka Singh & Ors. v . State of Punjab , reported in (1975) 4
SCC 511 . In paragraph 8, this Court observed thus:-
“
8. The suggestion of the appellants is that they were
falsely implicated because the prosecution could not
succeed in convicting Balaka Singh for the murder of
Gurnam Singh in the previous murder case. It was to
wreak fresh vengeance on the accused that they had
been falsely implicated in the present case. It is true
that there are as many as eight witnesses who are
alleged to have seen the occurrence and they have
given a parrot-like version of the entire case regarding
the assault on the deceased by the various accused
persons. All these witnesses have with one voice and
with complete unanimity implicated even the four
accused persons, acquitted by the High Court,
equally with the appellants making absolutely no
distinction between one and the other. A perusal of
the evidence of the prosecution witnesses would
show that the prosecution case against the
appellants and the four accused is so inextricably
mixed up that it is not possible to sever one from the
other. It is true that, as laid down by this Court
in Zwinglee Ariel v. State of M.P. [(1952) 2 SCC 560 :
AIR 1954 SC 15 : 1954 Cri LJ 230] and other cases
which have followed that case, the Court must make
an attempt to separate grain from the chaff, the truth
from the falsehood, yet this could only be possible
Criminal Appeal No. 1187-1188 of 2014 Page 66 of 74

when the truth is separable from the falsehood.
Where the grain cannot be separated from the chaff
because the grain and the chaff are so inextricably
mixed up that in the process of separation the Court
would have to reconstruct an absolutely new case for
the prosecution by divorcing the essential details
presented by the prosecution completely from the
context and the background against which they are
made, then this principle will not apply.[.. . ] ”
(Emphasis supplied)
c. Whether the Prosecution could be said to have proved its case
Beyond Reasonable Doubt?
81. In Ramakant Rai v . Madan Rai , reported in (2003) 12 SCC 395 ,
this Court explained the meaning of “reasonable doubt”. It means
doubts that are free from abstract speculation, not a result of an
emotional response, which are actual and substantial doubts on the
guilt of the accused person, and not vague apprehensions. It cannot
be an imaginary, trivial or a possible doubt, but a doubt based upon
reason and common sense. The relevant observations have been
reproduced hereinbelow:-
“ 23. A person has, no doubt, a profound right not to
be convicted of an offence which is not established by
the evidential standard of proof beyond reasonable
doubt. Though this standard is a higher standard,
there is, however, no absolute standard. What degree
of probability amounts to “proof” is an exercise
particular to each case. Referring to (sic) of probability
amounts to “proof” is an exercise, the
interdependence of evidence and the confirmation of
one piece of evidence by another, as learned author
says : [see The Mathematics of Proof II : Glanville
Williams, Criminal Law Review, 1979, by Sweet and
Maxwell, p. 340 (342)]
“The simple multiplication rule does not apply if
the separate pieces of evidence are dependent.
Two events are dependent when they tend to
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occur together, and the evidence of such events
may also be said to be dependent. In a criminal
case, different pieces of evidence directed to
establishing that the defendant did the prohibited
act with the specified state of mind are generally
dependent. A juror may feel doubt whether to
credit an alleged confession, and doubt whether
to infer guilt from the fact that the defendant fled
from justice. But since it is generally guilty rather
than innocent people who make confessions, and
guilty rather than innocent people who run away,
the two doubts are not to be multiplied together.
The one piece of evidence may confirm the other.”
24. Doubts would be called reasonable if they are
free from a zest for abstract speculation. Law cannot
afford any favourite other than the truth. To
constitute reasonable doubt, it must be free from an
overemotional response. Doubts must be actual and
substantial doubts as to the guilt of the accused
persons arising from the evidence, or from the lack of
it, as opposed to mere vague apprehensions. A
reasonable doubt is not an imaginary, trivial or a
merely possible doubt; but a fair doubt based upon
reason and common sense. It must grow out of the
evidence in the case.
25. The concepts of probability, and the degrees of it,
cannot obviously be expressed in terms of units to be
mathematically enumerated as to how many of such
units constitute proof beyond reasonable doubt.
There is an unmistakable subjective element in the
evaluation of the degrees of probability and the
quantum of proof. Forensic probability must, in the
last analysis, rest on a robust common sense and,
ultimately, on the trained intuitions of the judge.
While the protection given by the criminal process to
the accused persons is not to be eroded, at the same
time, uninformed legitimisation of trivialities would
make a mockery of the administration of criminal
justice. This position was illuminatingly stated by
Venkatachaliah, J. (as His Lordship then was)
in State of U.P. v. Krishna Gopal [(1988) 4 SCC 302 :
1988 SCC (Cri) 928 : AIR 1988 SC 2154] . ”
Criminal Appeal No. 1187-1188 of 2014 Page 68 of 74

(Emphasis supplied)

82. It cannot be said that the prosecution has proved its case beyond
reasonable doubt. A case attains that standard when all its links are
firmly established and recognizable to the eyes of a reasonable
person. In the present matter, the prosecution version does not
appear to stem from a truthful narration of facts.


83. The oral testimonies of the witnesses neither corroborate each other
nor align with the medical records. The various contradictions in the
form of material omissions go to the root of the matter, and in such
circumstances, it cannot be held that the prosecution has
discharged its burden of proof.
B. Whether the Statement of the PW-20 could have been treated
as an FIR?
84. The FIR, based on the statement of the PW-20 recorded by the
investigating officer, arrayed as many as 72 persons as accused,
several of whom find no mention in the statements of the prosecution
witnesses. Out of these 72 accused persons, chargesheet was filed
only against 24 persons who were eventually put to trial. What is
indeed disconcerting is that the individuals against whom direct and
specific allegations were levelled have either not been named in the
FIR or have been inexplicably dropped from the chargesheet. The
materials on record do not indicate what action, if any, was taken by
the police against them.


85. We consider it necessary to address yet another pertinent issue. It
appears from the oral evidence of the injured eyewitnesses and other
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eyewitnesses that the fardbeyan of PW-20 could not have been
treated as the first information report. A bare perusal of the oral
evidence of the PWs 3, 4, 5, 8, and 22 respectively, would indicate
that the information about the commission of the offence had
reached the police much prior to the recording of the statement of
the PW-20 and lodging of the FIR. We have arrived at this conclusion
on the basis of the reading of the following evidence:
a. First , the oral evidence of the Investigating Officer (PW-23) reveals
that he received an O.D. Slip from the Government Hospital,
Azam Nagar, and thereafter, he proceeded towards the hospital
to record the fardbeyan of the PW-20. Whereas, the PW-22
(Medical Officer of the Government Hospital, Azam Nagar) stated
that he had examined the injured persons on police requisition.
b. Secondly , the oral evidence of the PW-23, i.e., the I.O. indicates
that he recorded the statement of the PW-20 around 1:25 PM.
i. However, the PW-3 testified that when he regained
consciousness at the scene of occurrence, he saw that the
police had arrived. It was around 11:00 AM to 12:00 noon, and
his statement was recorded.
ii. The PW-5, on the other hand, stated that he regained
consciousness in the boat while being taken to the hospital,
and that all the injured persons first went to the police station
around 9 AM, where their statements were recorded, and
thereafter, proceeded to the hospital.
iii. The PW-4, another eyewitness to the incident, stated that after
the injured persons were taken to the hospital, the police
arrived at the scene of occurrence at around 12:00 noon to
1:00 PM and recorded his statement. The testimony of the PW-
Criminal Appeal No. 1187-1188 of 2014 Page 70 of 74

4 in this regard finds corroboration from the testimony of the
PW-8. She stated that the police arrived approximately two
hours after the incident and interrogated her.
c. Thirdly , the PW-20 in his oral evidence admitted that after the
assault he fell unconscious, and hence, he was not able to
identify the assailants of the deceased and the PWs 3, 6, and 10
respectively. Whereas, in his fardbeyan /statement to the police,
it is recorded that the PWs 3, 5, 6, and 10 respectively had
informed him that forty other persons, armed with various
weapons, had assaulted them.

86. From the foregoing, it appears that the statement of the PW-20
could not have been treated as the FIR, since the first information
about the occurrence had already reached the police prior to its
recording of statements at the hospital. Resultantly, the statement
of PW-20 becomes a police statement recorded under Section 161 of
the CrPC.

87. In State of A.P. v. Punati Ramulu & Ors. , reported in 1994 Supp
(1) SCC 590 , this Court observed that once it is found that the
investigating officer deliberately failed to record the first information
report on receipt of the information of a cognizable offence, and had
prepared the FIR after deliberations, consultations and discussions,
the FIR would fail to inspire confidence. The relevant observations
have been reproduced below:-

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88. In Ranbir Yadav v . State of Bihar , reported in (1995) 4 SCC 392 ,
the police officer had already started to investigate about a riot in the
night, however, he did not record the statements of any of the
persons he talked to. The FIR of the incident only came to be reported
in the next morning on the basis of the information given by one of
the witnesses. This Court held that the courts below erred in treating
the statement as an FIR as the same was a statement under Section
161 of the CrPC. The following are the relevant excerpts:-
“
38. Having gone through the evidence of PW 96
we are constrained to say that the courts below
were not justified in treating Ext. 10/1 as an FIR.
Undisputedly PW 96 had reached Village
Laxmipur Bind Toli in the night of 11-11-1985 to
investigate into the two cases registered over the
incident that took place in the morning. He
Criminal Appeal No. 1187-1188 of 2014 Page 72 of 74

deposed that after reaching the village at 10.30
p.m. he got information about the second incident
also and in connection therewith he had talked to
several persons. He, however, stated that he did
not record the statements of the persons to whom
he talked to. In cross-examination it was elicited
from him that on the very night he learnt that
houses of some people had been looted and set on
fire, some people had been murdered and that
some villagers were untraceable. While being
further cross-examined he volunteered that he had
started the investigation of the case registered
over the second incident in the same night. In the
face of such admissions of PW 96 and the various
steps of investigation he took in connection with
the second incident there cannot be any escape
from the conclusion that the report lodged by PC
PW 1 on the following morning could only be
treated as a statement recorded in accordance
with Section 161(3) of the Code and not as an FIR.
The next question, therefore is whether the
evidence of PC PW 1 is inadmissible as contended
by Mr Jethmalani.”
(Emphasis supplied)

89. There is no gainsaying that an FIR must faithfully reflect the
information furnished by the informant at the very time it is
presented. The true test for an information to qualify as an FIR lies
in whether it is capable of supplying grounds for the police officer to
suspect the commission of a cognizable offence. Once this
requirement is met, the officer is bound to reduce it into writing.

90. In the present case, in the natural course of events, the PWs 3, 4,
5, and 8 respectively, would have disclosed the commission of the
alleged offence to the police. The very first statement relating to the
two homicidal deaths ought to have been treated as an FIR. However,
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the daily diary or the roznamcha entry of the police station about the
visit of the witnesses to the police station or the visit of the
investigating officer to the scene of occurrence or even visit of the
investigating officer to the hospital was not brought on record which
further creates a doubt as regards the genuineness of the FIR. In
such circumstances, the statement of the PW-20 reduced as an FIR
fails to inspire confidence.
VI. CONCLUSION

91. In the result, the appeals succeed and are hereby allowed. The
impugned judgment and order to the extent of holding the appellants
herein guilty of the offences they were charged with, is set aside. The
appellants are accordingly acquitted. Their bail bonds stand
discharged.


…………………………..J.
(J.B. PARDIWALA)



.…………………………..J.
(R. MAHADEVAN)



New Delhi;
th
7 October, 2025.
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