Supreme Court lays down 7-factor test on how to identify unlawful assembly members, exempt innocent bystanders

The Supreme Court on Tuesday laid down a seven-factor test to decide when a person’s presence at the scene of a crime amounts to participation in an unlawful assembly under Section 149 of the Indian Penal Code. [Zainul vs State of Bihar]

The Justices JB Pardiwala and R Mahadevan set out a detailed framework to determine when an accused can be said to share the common object of an unlawful assembly. The Bench held that the prosecution must establish participation through direct or circumstantial evidence and then apply specific criteria.

“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."

The Court observed that these factors should be applied carefully to ensure that innocent bystanders are not punished merely for being present when an offence takes place.

The judgment was rendered while allowing two criminal appeals filed against a 2013 Patna High Court judgment. The High Court had upheld life imprisonment imposed on several villagers convicted for murder under Section 302 and unlawful assembly under Section 149 of the IPC.

The case arose from a violent clash in November 1988 in Katihar district over agricultural land that had been settled by the government. According to the prosecution, the accused, armed with firearms and traditional weapons, formed an unlawful assembly that led to the deaths of two persons and caused injuries to five others.

The trial court convicted twenty-one accused and acquitted three.

The High Court later affirmed the convictions of eleven and acquitted seven.

The appellants then approached the Supreme Court, arguing that they were falsely implicated and that the evidence failed to establish any shared common object.

On the procedural issue, the Bench examined whether the hospital statement of the injured informant, Jagdish Mahto, could be treated as the first information report. It held that since the police had already received information about the occurrence before recording this statement, it could not be treated as the FIR.

“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. Resultantly, the statement of PW-20 becomes a police statement recorded under Section 161 of the CrPC,” the Court said.

It cautioned that while injuries on witnesses may confirm their presence, the testimony of an injured eyewitness still needs to be independently assessed for credibility.

“Injuries on the eyewitnesses, at the best, may ensure their presence at the scene of occurrence but that is not enough. Before a criminal court even accepts the testimony of an injured eyewitness, it has to be satisfied that he is a truthful witness and had no reason to falsely implicate the accused persons," the judgment stated.

The Court further warned that where allegations are made against a large number of people, especially in group offences, courts must be extremely careful before convicting all on general or omnibus evidence.

“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 held.

On the degree of certainty required for conviction, the Court explained how a case attains the standard of proof beyond reasonable doubt.

“A case attains that standard when all its links are firmly established and recognisable to the eyes of a reasonable person,” the Bench opined.

After examining the records and evidence, the Supreme Court found that the prosecution had not proved that the appellants shared a common object or that their guilt had been established beyond reasonable doubt.

Therefore, it allowed the appeals and acquitted the accused.

“The impugned judgment and order to the extent of holding the appellants herein guilty of the offences they were charged with, is set aside. The appellants are accordingly acquitted. Their bail bonds stand discharged,” the Court concluded.

[Read Judgment]