ZAINUL v. THE STATE OF BIHAR

Citation: 2025 INSC 1192, [2025] 11 S.C.R. 60

Court: Supreme Court of India

Bench: J.B. Pardiwala and R. Mahadevan, JJ.

Judgment text

SUPREME COURT OF INDIA Zainul v. The State of Bihar Criminal Appeal No. 1187 of 2014 [2025] 11 S. C. R. 60 : 2025 INSC 1192 Zainul v. The State of Bihar (Criminal Appeal No. 1187 of 2014) 07 October 2025 [J. B. Pardiwala* and R. Mahadevan, JJ. ] Issue for Consideration 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 u/s. 302 r/w. s. 149 of the Penal Code, 1860. Whether the High Court committed any error in passing the impugned judgment and order. Headnotes† Penal Code, 1860 - ss. 302 and 149 - Prosecution case that PW-20 visited his agricultural field alongwith his brother - 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 - They attacked PW-20 and his brother - PW-20's brother was shot dead - Upon hearing the alarm, the PWs 3, 4, 5, 6, and 10 respectively alongwith one SM accompanied by other villagers reached at the place of occurrence - They were also assaulted by the accused and SM was shot dead - Statement of PW-20 was reduced in form of an FIR - 24 accused persons were put to trial - At the conclusion of the trial, 21 persons stood convicted - 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 - Accordingly, the instant two appeals concern 10 convicts: Held: 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, this Court finds that the oral testimony of the prosecution witnesses is marred by material * Author Zainul v.

The State of Bihar inconsistencies and embellishments striking at to the root of the matter - 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 - 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 - 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 - 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 - Further, there is conflict between the ocular version and the Medical evidence - 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 - 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 - 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 - There is no credible evidence even against the accused no. 17 except an omnibus identification by the PW-20 - This Court holds that the accused nos.

6, 7, 8, 9, 10, 11, 12, 13, and 14 respectively are entitled to the benefit of doubt - Also, 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 - 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 - 62 In the present matter, the prosecution version does not appear to stem from a truthful narration of facts - 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 - Thus, the impugned judgment and order to the extent of holding the appellants herein guilty of the offences they were charged with, is set aside.

[Paras 65-68, 72, 73, 82, 83, 86, 91] Penal Code, 1860 - s. 149 - Essentials: Held: i) There must be an assembly of five or more persons; ii) An offence must be committed by any member of that unlawful assembly; 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. [Para 45] Penal Code, 1860 - s. 149 - First limb and Second limb of the provision: Held: s. 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 s.

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 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. [Paras 46, 47] Penal Code, 1860 - s.

149 - Expression "in prosecution of the common object": Held: 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. [Para 49] Zainul v. The State of Bihar Penal Code, 1860 - s. 149 - Unlawful assembly - Constructive liability of any member: Held: s.

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 - 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. [Paras 50, 51] Penal Code, 1860 - s.

149 - When the assembly consisted of some persons who were merely passive onlookers: Held: 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 - Because, the nucleus of s. 149 is "common object". [Para 52] Penal Code, 1860 - s. 149 - Innocent Bystander and Member of an Unlawful Assembly: Held: 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 s.

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 64 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; f) the nature of the weapons carried and used; g) the nature, extent, and number of the injuries inflicted, and other relevant considerations. [Para 54] Penal Code, 1860 - s.

149 - Cogent and credible material - Careful consideration by the Court: Held: 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.

[Para 61] Evidence - Evaluation of the testimony of injured eyewitness: Held: 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. [Para 63] Case Law Cited Mizaji & Ors. v. State of U. P. [1959] Supp. 1 SCR 940 : 1958 SCC OnLine SC 95; Charan Singh v. State of U. P. [2004] 2 SCR 925 : (2004) 4 SCC 205; Mohan Singh v. State of Punjab [1962] Supp. 3 SCR 848 : AIR 1963 SC 174; Masalti v. State of Uttar Pradesh [1964] 8 SCR 133 : 1964 SCC OnLine SC 30;Muthu Naicker v. State of T. N. (1978) 4 SCC 385; Sherey v.

State of U. P. (1991) Supp. 2 SCC 437; Akbar Sheikh v. State of W. B. [2009] 7 SCR 518 : (2009) 7 SCC 415; State of Madhya Pradesh v. Balveer Singh, 2025 SCC OnLine SC 390; Balu Sudam Khalde & Anr. v. State of Maharashtra [2023] 6 SCR 851 : (2023) 13 SCC 365; Abdul Syeed v. State of M. P. [2010] 13 SCR 311 : (2010) 10 SCC Zainul v. The State of Bihar 259; Balaka Singh & Ors. v. State of Punjab [1975] Supp. 1 SCR 129 : (1975) 4 SCC 511; Ramakant Rai v. Madan Rai [2003] Supp. 4 SCR 17 : (2003) 12 SCC 395; State of A. P. v. Punati Ramulu & Ors. (1994) Supp. 1 SCC 590; Ranbir Yadav v. State of Bihar [1995] 2 SCR 826 : (1995) 4 SCC 392 - relied on. Shyam Babu v. State of Uttar Pradesh [2012] 8 SCR 255 : (2012) 8 SCC 651; Kanhaiya Lal & Ors. v. State of Rajasthan [2013] 6 SCR 361 : (2013) 5 SCC 655; Subal Ghorai & Ors. v. State of West Bengal (2013) 4 SCC 607; Musa Khan v. State of Maharashtra (1977) 1 SCC 733; Ranvir Singh & Ors. v.

State of Madhya Pradesh [2023] 1 SCR 841 : (2023) 14 SCC 41; Joy Devaraj v. State of Kerala (2024) 8 SCC 102; Bikau Pandey & Ors. v. State of Bihar [2003] Supp. 6 SCR 201 : (2003) 12 SCC 616; Vasant @ Girish Akbarasab Sanavale v. State of Karnataka [2025] 3 SCR 158 : 2025 SCC OnLine SC 337 - referred to. List of Acts Penal Code, 1860. List of Keywords Section 149 of IPC; Interpretation of Section 149 of the IPC; Unlawful assembly; Innocent bystander; Member of unlawful assembly; Rule of prudence in convicting members of unlawful assembly; Ocular evidence; Medical evidence; Common object; Evaluation of injured eyewitness; Cogent material; Credible material. Case Arising From CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1187 of 2014 From the Judgment and Order dated 17. 07. 2013 of the High Court of Judicature at Patna in CRLA No. 202 of 1990 With Criminal Appeal No. 1188 of 2014 Appearances for Parties Advs. for the Appellant: Ashwani Kumar Singh, Rauf Rahim, Sr. Advs.

, Ashish Anshuman, Chandan Malav, Ms. Prerna Singh, Ambar Qamaruddin, Tejasvi Kumar, Mrs. M. Qamaruddin. 66 Advs. for the Respondent: Divyansh Mishra, Yoshit Jain, Manish Kumar, Ms. Himani Choudhary, Samir Ali Khan, Pranjal Sharma, Anil Kumar Verma. Judgment / Order of the Supreme Court Judgment 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 * Ed. Note: Pagination as per the original Judgment. Zainul v. The State of Bihar 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. 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 68 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- 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 Zainul v. The State of Bihar 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 gunshot 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. 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 70 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. 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 Zainul v. The State of Bihar unlawful assembly and injuring 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 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. 72 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. Sr. Prosecution Witness Particulars No. 1. Suraj Mahto Resident of Baharkhal. 2. Ram Surat Mahto Witness to inquest report prepared by the PW-24. 3. Dasu Mahto Injured eyewitness; cousin of PW-20. 4. Chhedi Mahto Injured eyewitness. 5. Faizu Mahto Injured eyewitness. 6. Sripati Mahto Injured eyewitness. 7. Munilal Mahto Father of the deceased Sarjug, resident of Baharkhal. 8. Chinta Devi Wife of the deceased Sarjug, resident of Baharkhal. 9. Ram Nath Mahto Witness to seizure lists, resident of Baharkhal. 10. Dudh Nath Mahto Injured eyewitness. 11. Maharania Devi Wife of the deceased Meghu, resident of Baharkhal. 12. Tilaki Devi Wife of the PW-5, resident of Baharkhal. 13. Samudri Devi Wife of the PW-6, resident of Baharkhal. 14.

Tusia Devi Wife of the PW-20, resident of Baharkhal. 15. Bhubneshwar Mahto Father of the PW-10, Resident of Baharkhal. 16. Suresh Mahto Brother of the PW-6, resident of Baharkhal. 17. Uttam Mahto Witness to inquest report prepared by the PW-24. 18. Radhe Mahto Witness to seizure lists; cousin of deceased Sarjug. Zainul v. The State of Bihar 19. Arjun Mahto Witness to seizure lists. 20. Jagdish Mahto Injured eyewitness; brother of deceased Meghu; resident of Baharkhal. 21. Dr. B. P. Gupta At Kishanganj Hospital, conducted post-mortem on dead body of deceased Sarjug and Meghu. 22. Dr. Narayan Mishra Medical Officer at the Azam Nagar Hospital; examined injuries on 5 injured persons. 23. Arvind Kumar Investigating Officer 24. Surendra Prasad Assistant Sub-Inspector at the Azam Singh Nagar Police Station; prepared the inquest reports. 11. It also relied upon few pieces of documentary evidence. Exhibit Particulars Ext. 2 to 2/4 Parcha granted by the State of Bihar Ext.

3 and 3/1 Rent receipts of the P. O. Land Ext. 4 Fardbeyan Ext. 5 and 5/1 Post-mortem reports of the deceased Ext. 6 to 6/4 Injury reports Ext. 7 Formal FIR Ext. 8 to 8/4 Injury Reports prepared by the police Ext. 9 and 9/1 Inquest reports Ext. 10 and 10/1 Seizure lists 12. Upon closure of the recording of the oral evidence, the Trial Court recorded the further statements of the accused persons under 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 74 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. 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. Zainul v. The State of Bihar 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. 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"; vii. Bruise on the left side chest 3" X ½". 76 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; 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 Zainul v. The State of Bihar 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: 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; 78 vi.

One incised wound with out of radius bone 1½" X ½" over left forearm. 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"; 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, Zainul v. The State of Bihar 20 respectively, were injured. The accused no. 19 had a gandasa in his hand, Jamir (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 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 occur- rence. 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 80 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 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 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. Zainul v. The State of Bihar 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 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. 82 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 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 Zainul v. The State of Bihar 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 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:- 84 "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 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 Zainul v.

The State of Bihar 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 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.

86 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:- "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 Zainul v. The State of Bihar 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:- "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 88 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 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 Zainul v. The State of Bihar 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 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. [... ]" 90 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 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.

Rauf Rahim, 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 the PW-20. However, the statements of other witnesses indicate that the statement Zainul v. The State of Bihar 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. Rahim 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. Rahim 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. 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. Rahim 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 92 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. Rahim 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 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 Zainul v. The State of Bihar 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. 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 94 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 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. Zainul v. The State of Bihar 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. 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 96 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:- Before the TC Status A-1 Kaimuddin Since Deceased A-2 Md. Muslim Since Deceased A-3 Habib A-4 Azam Acquitted by HC A-5 Asarul Acquitted by HC A-6 Sattar Appellant no. 1 in Crl. Appeal No. 1188/2014 A-7 Udua Appellant no. 2 in Crl. Appeal No. 1188/2014 A-8 Razaque Appellant no. 3 in Crl. Appeal No. 1188/2014 A-9 Md. Mashiyat Appellant no. 4 in Crl. Appeal No.

1188/2014 A-10 Allauddin @Allu Appellant no. 5 in Crl. Appeal No. 1188/2014 A-11 Hoda Appellant no. 6 in Crl. Appeal No. 1188/2014 A-12 Salahuddin @ Appellant no. 7 in Crl. Appeal No. 1188/2014 Sallu A-13 Md. Mojib @ Appellant no. 8 in Crl. Appeal No. 1188/2014 Mujiya A-14 Md. Mister Appellant no. 9 in Crl. Appeal No. 1188/2014 A-15 Aslam Acquitted by TC A-16 Aftab Alam Acquitted by HC A-17 Zainul Appellant no. 1 in Crl. Appeal No. 1187/2014 A-18 Sahabuddin @ Acquitted by HC Samuddin A-19 Garibul A-20 Md. Khaza Acquitted by HC A-21 Barik Acquitted by HC A-22 Md. Sikander Acquitted by HC A-23 Kalimuddin Acquitted by TC A-24 Allauddin Acquitted by TC 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 Zainul v.

The State of Bihar 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; 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 98 means that the offence committed in prosecution of the common object must 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