In a landmark ruling, the Supreme Court of India in Zainul v. State of Bihar (2025 INSC 1192) has laid down a 7-factor test to determine whether a person is truly a member of an unlawful assembly under Section 149 of the Indian Penal Code (IPC)/ Section 190 of Bharatiya Nyaya Sanhita (BNS). The decision, delivered by Justice J.B. Pardiwala, clarifies the fine line between innocent bystanders and active participants in group offences—a distinction often blurred in cases involving mob violence or communal clashes.
The Court’s verdict not only exonerated several accused who were wrongly convicted under the umbrella of collective liability but also reaffirmed the principles of fairness, individual responsibility, and evidentiary prudence that must guide criminal adjudication in cases involving large assemblies.
Background of the Case
The case stemmed from a violent incident in Katihar district, Bihar, on November 20, 1988. According to the prosecution, a clash erupted between two groups over the possession of agricultural land allotted by the Bihar government. The informant, Jagdish Mahato (PW-20), alleged that around 400–500 people, armed with guns, swords, lathis, and other weapons, attacked him and his brother, killing two persons—Meghu Mahato and Sarjug Mahato—and injuring five others.
A First Information Report (FIR) was registered under Sections 147, 148, 149, 302, 307, and other allied provisions of the Indian Penal Code, 1860, corresponding to Sections 191(2), 191(3), 190, 103, and 109 of the Bharatiya Nyaya Sanhita, 2023. Seventy-two individuals were named in the FIR, and after investigation, 24 were charge-sheeted.
The Trial Court convicted 21 persons, sentencing them to life imprisonment under Section 302 read with Section 149 of the Indian Penal Code, 1860 (corresponding to Section 103 read with Section 190 of the Bharatiya Nyaya Sanhita, 2023). The Patna High Court, in 2013, upheld the conviction of 11 while acquitting seven on the ground that they might have been mere spectators.
These convicts appealed to the Supreme Court, challenging their conviction primarily because they were not active participants, that the FIR was unreliable, and that the application of Section 149 IPC was indiscriminate.
Issues Before the Supreme Court
The Supreme Court considered the following core questions:
- Who qualifies as a member of an unlawful assembly under Section 149 IPC?
- What degree of participation or intent is required to hold an accused vicariously liable for offences committed by the group?
- Whether mere presence at the scene of a crime make a person culpable?
- How should courts differentiate between active participants and innocent bystanders?
Understanding Section 149 IPC
Section 149 IPC reads:
“If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members knew to be likely to be committed in prosecution of that object, every person who, at the time of committing that offence, is a member of the same assembly, is guilty of that offence.”
This provision embodies the principle of constructive liability, where individual acts merge into the collective intent of the assembly. However, this vicarious liability has often led to misuse—courts have sometimes convicted large groups without assessing the individual conduct, resulting in miscarriages of justice.
The Supreme Court, recognising this, sought to bring clarity through a structured 7-factor test.
The Supreme Court’s 7-Factor Test
Justice Pardiwala’s opinion synthesised decades of precedents—including Musa Khan v. State of Maharashtra (1977) 1 SCC 733, Kanhaiya Lal v. State of Rajasthan (2013) 5 SCC 655, and Subal Ghorai v. State of West Bengal (2013) 4 SCC 607—and crystallised the following test to determine whether a person was truly part of an unlawful assembly or merely an onlooker.
“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; and
g. the nature, extent, and number of the injuries inflicted, and other relevant considerations.”
The Rule of Prudence
Courts must exercise prudence to ensure that innocent persons are not swept up in collective blame. The Supreme Court emphasised that in mob-related cases, there is a natural tendency for witnesses to implicate many people, and hence, courts must look for individual culpability, not communal identity.
Analysis by the Court
A. Distinguishing Between Innocent Bystanders and Offenders
The Court emphasised that mere presence in an assembly, even one that later turns violent, is not conclusive proof of guilt. A person may be present for multiple reasons—residing nearby, curiosity, or even being coerced into joining. What matters is whether his conduct demonstrated conscious alignment with the group’s unlawful objective.
The Court quoted from Ranvir Singh v. State of Madhya Pradesh (2023) 14 SCC 41:
“There is always a tendency to rope in innocent villagers with the guilty in rural factional fights; therefore, courts must scrutinize evidence with greater care.”
The Bench noted that the appellants in Zainul were convicted despite no specific role being attributed to several of them, and the eyewitnesses’ accounts were riddled with contradictions.
B. Delay and Doubt in FIR
The Court found procedural irregularities in the registration of the FIR. Although the incident occurred at 8:00 AM, the FIR was lodged only at 2:35 PM, and reached the Magistrate two days later without a satisfactory explanation. Such a delay, the Court observed, creates doubt about the authenticity of the prosecution’s version and the possibility of deliberation or exaggeration.
C. Reliability of Eyewitnesses
While some witnesses were injured and hence credible, their testimonies varied on key aspects such as the identity of the attackers, the type of weapons used, and the sequence of events. The Court held that the benefit of doubt must be given to the accused when identification is uncertain or based on the mass naming of villagers without clear attribution.
D. Applying Section 149 with Caution
Justice Pardiwala observed that Section 149 cannot be used as a dragnet provision to convict all who happen to be present at the scene. The prosecution must show a “meeting of minds” and active cooperation. The Court reminded that vicarious liability is an exception to the general rule of criminal law, where guilt must be personal and intentional.
The judgment thus set out a guiding principle:
“The essence of Section 149 IPC is not mere membership of an unlawful assembly but participation with a shared purpose. A person may be among hundreds present, yet if he did not act in concert, he cannot be branded guilty.”
Outcome of the Case
Applying the above parameters, the Supreme Court held that the prosecution failed to prove beyond a reasonable doubt that all the appellants shared a common object or actively participated in the killings. The Court noted:
- There was no clear evidence that several appellants carried weapons or inflicted injuries.
- Witness identification was unreliable due to the size of the mob and confusion during the incident.
- Some accused were residents of nearby villages, and their mere presence did not imply complicity.
Consequently, the Court set aside the convictions of multiple appellants and acquitted them of charges under Section 302 read with Section 149 IPC.
Key Legal Takeaways
1. Vicarious Liability Must Be Narrowly Construed
The judgment reiterates that collective criminality under Section 149 IPC cannot be mechanically imposed. Courts must establish a nexus between the individual’s act and the assembly’s common object.
2. Eyewitness Credibility is Crucial
Convictions in group offences often hinge on eyewitness accounts. The Court reaffirmed that injured witnesses are reliable, but their testimony must be internally consistent and corroborated.
3. Delay in FIR Weakens Prosecution
Unexplained delay in lodging or forwarding the FIR indicates afterthought or manipulation. The prosecution must provide cogent reasons to preserve its evidentiary value.
4. The 7-Factor Test as Judicial Safeguard
This structured approach helps trial and appellate courts to differentiate genuine offenders from innocents, reducing wrongful convictions in cases involving mass violence, political processions, or land disputes.
5. Duty of Courts in Rural and Communal Clashes
The judgment recognises social realities—witness bias, mob chaos, and local factionalism—and urges courts to adopt a “rule of prudence” before ascribing guilt to large groups.
Broader Implications
The decision in Zainul v. State of Bihar carries significant implications for criminal jurisprudence and law enforcement practices:
- For Investigating Agencies: It underscores the importance of meticulous investigation, identification parades, and timely filing of FIRs to avoid false implication.
- For Trial Courts: It demands individualised assessment of each accused instead of collective condemnation.
- For Citizens: It serves as a reminder that mere presence in a crowd that turns violent could invite prosecution—but also that courts will protect those wrongly implicated.
Conclusion
The Supreme Court’s Zainul judgment is a landmark in balancing collective accountability with individual justice. By formulating a 7-factor test, the Court has provided a robust framework for determining culpability under Section 149 IPC—a provision often misused to paint everyone with the same brush in cases of mob offences.
The decision reaffirms a vital constitutional principle: “No one shall be punished for the acts of others unless his own conduct establishes participation.” In a society where group violence can arise from political, communal, or agrarian tensions, this judgment fortifies the legal bulwark against indiscriminate prosecutions and ensures that justice remains personal, not presumptive.
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