# Zainul v. The State of Bihar

- **Citation:** 2025 INSC 1192
- **Court:** Supreme Court of India
- **Decided:** 2025-10-07
- **Case number:** Criminal Appeal No. 1187 of 2014
- **Bench:** J.B. Pardiwala, R. Mahadevan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/zainul-v-the-state-of-bihar-38223
- **Pages:** 66

## Headnote

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
[2025] 11 S.C.R.
61
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 th

## Text

_Characters 0–39,845 of 140,576. This is a partial read: ask again with offset=39845 for what follows._

[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
[2025] 11 S.C.R.
61
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
[2025] 11 S.C.R.
Supreme Court Reports
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]
[2025] 11 S.C.R.
63
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
[2025] 11 S.C.R.
Supreme Court Reports
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
[2025] 11 S.C.R.
65
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
[2025] 11 S.C.R.
Supreme Court Reports
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.
[2025] 11 S.C.R.
67
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 selfsame 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
[2025] 11 S.C.R.
Supreme Court Reports
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
[2025] 11 S.C.R.
69
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
[2025] 11 S.C.R.
Supreme Court Reports
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
[2025] 11 S.C.R.
71
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 400500 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
[2025] 11 S.C.R.
Supreme Court Reports
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.
No.
Prosecution Witness
Particulars
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.
[2025] 11 S.C.R.
73
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
Singh
Assistant Sub-Inspector at the Azam
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
[2025] 11 S.C.R.
Supreme Court Reports
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 PW20, 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.
[2025] 11 S.C.R.
75
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 21⁄2" X 1/2" X bone deep;
iii.
Punctured wound on the right side of the back 1⁄4" diameter X
1⁄2" deep;
iv.
One bruise in the right thigh 21⁄2 X 1⁄2";
v.
Bruise on the left wrist joint 11⁄2" X 11⁄2";
vi.
Bruise over right wrist joint 1" X 11⁄2";
vii. Bruise on the left side chest 3" X 1⁄2".
76
[2025] 11 S.C.R.
Supreme Court Reports
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 11⁄2" X 1⁄2" X bone deep;
ii.
One bruise over left scapular region 21⁄2" X 1⁄2";
iii.
Bruise over left thigh outer aspect 3" X 1⁄2";
iv.
One bruise over left knee joint outer aspect 2" X 1⁄2".
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
[2025] 11 S.C.R.
77
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 21⁄2" X 1⁄2"
X muscle deep;
ii.
Incised wound on the middle of scalp 11⁄2" X 1⁄4" 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 11⁄2" X 1⁄4" X bone deep over root of right
ring finger;
ii.
Incised wound 1" X 1⁄4" over right side of injury No. 1;
iii.
Incised wound 3⁄4" X 1/6" X muscle deep over right middle finger;
iv.
One lacerated wound 3⁄4" X 1⁄4" over right side of scalp;
v.
One abrasion 1" diameter over right cheek;
78
[2025] 11 S.C.R.
Supreme Court Reports
vi.
One incised wound with out of radius bone 11⁄2" X 1⁄2" 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 11⁄2" (deep)
with bending of neck;
ii.
One incised wound on the back 1" X 1⁄4" X 1⁄4" deep;
iii.
One incised wound on the scalp back side 1" X 1⁄4";
iv.
One incised wound on the right wrist joint 1 1⁄4" X 1⁄4" 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,
[2025] 11 S.C.R.
79
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.