Zainul vs The State of Bihar

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 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 – 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]

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 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]