Section 149 IPC| Safe To Convict Only Those Whose Presence Is Not Only Consistently Established But Also To Whom Overt Acts Are Attributed: Supreme Court

The Supreme Court observed that where there are general allegations against a large number of persons, 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.

The Court observed thus in Criminal Appeals filed by the co-convicts challenging the Judgment of the Patna High Court by which the Trial Court’s Judgment was affirmed.

The two-Judge Bench comprising Justice J.B. Pardiwala and Justice R. Mahadevan enunciated, “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.”

The Bench emphasised that an FIR must faithfully reflect the information furnished by the informant at the very time it is presented.

Senior Advocates Ashwani Kumar Singh and Rauf Rahim represented the Appellant/Convicts, while Advocate Divyansh Mishra represented the Respondent/State.

Factual Background

As per the FIR, on the day of the incident, the informant decided to visit his agricultural field along with his brother (deceased). A day prior, he had harvested paddy crop from the field that was assigned to him by the Government. As per the prosecution, the accused persons along with 400-500 persons were hiding nearby the agricultural field with weapons. These persons did not want the informant to harvest the paddy and some of those persons even started causing damage to the paddy crop. All these persons upon seeing the informant and his brother cornered them and allegedly started pelting stones.

The informant’s brother was shot dead and hence, an FIR was registered against 24 persons for the offences punishable under Sections 148, 149, 307, and 302 of the Indian Penal Code, 1860 (IPC). The Trial Court 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. The convicts went to the High Court, which affirmed their conviction. Being aggrieved, they approached the Apex Court.

Reasoning

The Supreme Court in view of the facts and circumstances of the case, said, “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.”

The Court noted that 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 and 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”, it added.

The Court remarked that where the presence of a large number of persons is established and many are implicated, prudence mandates strict adherence to this rule of caution.

“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”, it explained.

The Court further said that 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?”, it asked.

The Court also emphasised that injuries on the eyewitnesses, at the best, may ensure their presence at the scene of occurrence but that is not enough and 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.

“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”, it observed.

Conclusion

The Court was of the view that a case attains the standard when all its links are firmly established and recognizable to the eyes of a reasonable person and in the present matter, the prosecution version does not appear to stem from a truthful narration of facts.

“It cannot be said that the prosecution has proved its case beyond reasonable doubt. … 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”, it added.

Furthermore, the Court noted that the statement of the informant 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.

“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. … The very first statement relating to the two homicidal deaths ought to have been treated as an FIR. However, 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”, it concluded.

Accordingly, the Apex Court allowed the Appeals, set aside the impugned Judgment to the extent of holding the Appellants guilty, and acquitted them.

Cause Title- Zainul v. The State of Bihar (Neutral Citation: 2025 INSC 1192)

Appearance:

Appellant: Senior Advocates Ashwani Kumar Singh, Rauf Rahim, AORs Prerna Singh, M. Qamaruddin, Advocates Ali, Ambar Qamaruddin, Tejasvi Kumar, Ekansh Bansal, Syed Sarfaraz Karim, and Somnath Bhattacharya.

Respondent: AORs Manish Kumar, Samir Ali Khan, Advocates Divyansh Mishra, Kumar Saurav, Pranjal Sharma, and Kashif Khan.

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