Holding

The Supreme Court held that the prosecution failed to establish a common unlawful object and reliable evidence, so the convictions under s.149 IPC and related offences could not be sustained.

Summary

The case arose from two FIRs (11/97 and 12/97) lodged on 28‑29 April 1997 concerning a violent incident in which a man named Suresh Yadav died and several others were injured. Eleven accused were charged under IPC sections 302, 324 and 149 and were convicted by the trial court, a decision affirmed by the High Court. On appeal, the Supreme Court examined whether the offences could be treated as "committed in the course of the same transaction" under s.223 CrPC and whether the prosecution had proved a common object required for conviction under s.149 IPC. The Court found serious contradictions in witness statements, lack of forensic corroboration, failure to seize weapons or the bullet, and no clear evidence of a common unlawful object or overt act by most accused. Consequently, the convictions were unsustainable, the judgments of the lower courts were set aside and the appellants were acquitted.

Issues considered

The applicability of s.223 CrPC to try the two FIRs together as offences committed in the same transaction
Whether the prosecution proved the essential ingredients of s.149 IPC, particularly a common unlawful object and overt act by each accused
Whether the evidence of prosecution witnesses was reliable and sufficient to sustain convictions under s.302, s.324 and s.149 IPC
Whether investigative lapses (absence of site plan, non‑seizure of weapons, non‑examination of key witnesses) vitiated the trial

Legislation cited

Arms Act, 1959s. 27
Code of Criminal Procedure, 1973s. 164, s. 210, s. 223
Indian Penal Code, 1860s. 141, s. 147, s. 148, s. 149, s. 302, s. 307, s. 324

Subjects

Section 149 IPCunlawful assemblycommon objectsame transactionCrPC s.223evidence reliabilityacquittalinvestigative lapses

Judgment

[2011] 5 S.C.R. 186

A KULDIP YADAV & ORS.
v.
STATE OF BIHAR
(Criminal Appeal No. 531 of 2005 etc.)
APRIL 11, 2011
B
[P. SATHASIVAM AND H.L. GOKHALE JJ.]

CODE OF CRIMINAL PROCEDURE, 1973:

c s. 223 - Persons accused of offences committed in the
course of same transaction -In an incident of death of one
person caused by members of accused group, FIR lodged
for offences punishable inter a/ia, u/ss. 302 and 324 read with
s. 149 !PC -The following day on the statement of one of the
0 accused, another FIR lodged against members of
complainant party for offences punishable, inter alia, u/s. 3071
149 /PC -Prosecution of accused of the first FIR -Conviction
by trial court -Affirmed by High Court -Held : For several
offences to be part of the same transaction, the test which has
E to be applied is whether they are so related to one another in
point of purpose or of cause and effect, or as principal and
subsidiary, so as to result in one continuous action -Thus ,
where there is a commonality of purpose or design, where
there is a continuity of action, then all those persons involved
can be accused of the same or different offences "committed
F in the course of the same transaction"-Penal Code, 1860 -s.
302 and 24 read with s. 149.

PENAL CODE, 1860 :

G ss. 302 and 324 read with s. 149 -FIR against 11 persons
for causing death of one of the members of complainant party
and causing injuries to others - On the following day cross-
FIR registered against complainant party -Conviction by trial
court of accused -Upheld by High Court -Held: The
H 186
KULDIP YADAV & ORS. v. STATE OF BIHAR 187

statements of prosecution witnesses u/s. 164 CrPC and their A
evidence before the court clearly show their improvements with
due deliberation and consultation; and in the absence of
credible explanation, .conviction based on their testimony
cannot be sustained - The prosecution has not presented true
version on most of the material parts and, therefore, the B
evidence of the witnesses and material placed on their side
does not inspire confidence and cannot be accepted on its
face value - The place of occurrence has been shifted by
informant and the Investigating Officer has admitted not
making any site plan of the place of occurrence - The injuries c
on the accused, particularly, fire arm injury on A-1 has not
been explained by the prosecution despite the fact that
members of the informant party were charge-sheeted for
causing injuries to four accused - The findings of the High
Court and ultimate conclusion dismissing the appeals are 0
perverse and resulted in failure of justice - Under the
circumstances, the judgments of the High Court and the trial
court are set aside - Accused acquitted.

s. 149 - Member of unlawful assembly guilty of offence
committed in prosecution of common object - Held: s. 149 E
creates a specific offence and deals with punishment of that
offence - Whenever the court co(lvicts any person or persons
of an offence with the aid of s. 149, a clear finding regarding
the common object of the assembly must be given and the
evidence discussed must show not only the nature of the F
common object but also that the object was unlawful - In the
absence of such finding as a/so any overt act on the part of
the accused persons, mere fact that they were armed would
not be sufficient to prove common object - In the instant case,
there is no material to show that all the accused shared in G
common object, the object itself not being proved and their
participation in it is not made out· by credible evidence -
Without a clear finding regarding common object and
participation therein by each one of the accused members,
there can be no conviction with the aid of s. 149. H
188 SUPREME COURT REPORTS [2011] 5 S.C.R.

A The appellant in Crl. A. No. 531 of 2005 along with 10
others was prosecuted for causing death of one 'SY' the
brother of PW-9. The case of the prosecution was that on
28.4.1997 at about 9.00 A.M. when 'SY' was getting his
diesel machine repaired, all the 11 accused came there.
B A-1 fired at 'SY' in his abdomen, and when PW-9 went to
help him, A-9 gave a 'saif' blow causing injury on his lips.
When PW-3, PW-4 and PW-7 on hearing alarm reached
there, they were also subjected to assault by the accused
party.
c PW-9 told that the victim died on the way to hospital.
On the basis of the 'fard bayan' of PW-9, FIR No. 11/97
was registered. Charge sheet No. 12/97 was submitted in
FIR No. 11/97. On 29.4.1997, on the basis of statement of
A-9, cross-FIR No. 12of1997 was also registered. Charge
D sheet No. 36/97 was filed in FIR No. 12/97. The trial court
convicted all the accused u/ss. 302, 324 read with s. 149
IPC and sentenced them to rigorous imprisonment for
life. The appeals filed by the accused were dismissed by
the High Court.
E
Allowing the appeals, filed by the accused, the Court

HELD: 1.1 In the case of Balbir*, this Court
considered clauses (a) and (d) of s. 223 of the Code of
F Criminal Procedure, 1973 and held that the primary
condition is that persons should have been accused
either of the same offence or of different offences
"committed in the course of the same transaction". The
expression advisedly used is "in the course of the same
transaction". That expression is not akin to saying "in
G respect of the same subject-matter". For several offences
to be part of the same transaction, the test which has to
be applied is whether they are so related to one another
in point of purpose or of cause and effect, or as principal
and subsidiary, so as to result in one continuous action.
H Thus, where there is a commonality of purpose or
KULDIP YADAV & ORS. v. STATE OF BIHAR 189

design, where there is a continuity of action, then all A
those persons involved can be accused of the same or
different offences "committed in the course of the same
transaction". [para 11] [200-G-H; 201 ·A·B]
*Balbir vs. State of Haryana & Anr. 1999 ( 4 ) Suppl. B
SCR 120 = (2000) 1 sec 285 - relied on
Harjinder Singh vs. State of Punjab and Ors. (1985) 1
SCC 422; Latu Prasad vs. State thr. CBI 2003 (2) Suppl.
=
SCR 1032 (2003) 11 sec 786 and Pal @ Palla vs. State
=
of U.P. 2010 (11) SCR 716 (2010) 10 sec 123 -referred C
to
1.2 In the case on hand, the investigation was
conducted by the same 1.0. in respect of the incident that
took place on 28.04.1997. Though in the cross-case, that D
is, FIR No. 12197, a complaint was made on the next day
I.e. on 29.04.1997 at about 5:30 A.M., from the materials
available, both the cases relate to the incident that ~ook
place at 9 A.M. on 28.04.1997. In view of the factual details
coupled with the statements made by prosecution E
witnesses and in the light of the principles enunciated by
this Court, the Investigating Officer ought to have brought
to the notice of the trial court about the two FIRs arising
out of the same incident to avoid gross injustice to the
parties concerned. Though both the FIRs (11/97 and 12/ F
97) were investigated by the very same 10, he had not
acted in good discipline and has not drawn the attention
of the trial court about the cross cases arising out of the
same incident. [para 14, 15 and 32(a)] (202-F-G; 204-A~B;
214-E-F]
G
2.1 The analysis of witnesses examined on the side
of the prosecution clearly shows that they were not able
to identify the actual place of occurrence, namely,
whether the incident happened near the diesel engine or
· in the field of 'AM'. They all had different versions about H
190 SUPREME COURT REPORTS [2011) 5 S.C.R.

A the nature of injuries and they are not consistent whether
the deceased died at the spot or on the way to hospital
or in the hospital. The evidence of the doctor (PW-2) and
the evidence of injured persons about the nature of
injuries contradict each other. All these contradictions
B and uncertainties cannot be ignored lightly when some
of the accused also suffered bullet injuries in the same
incident, which is a cross-case, namely, FIR No. 12/97.
[para 24] [209-C-D]
2.2 A reading of the statement of prosecution
C witnesses u/s. 164 CrPC and their evidence before the
court clearly shows their improvements with due
deliberation and consultation; and in the absence of
credible explanation, conviction based on their testimony
cannot be sustained. [para 32(b)] [214-G]
D
2.3 The version given by eye-witnesses who were
also interested witnesses on account of their relationship
with the deceased and being inimically disposed against
the accused persons is highly exaggerated, contrary to
each other and not fully corroborated with medical
E evidence and there are discrepancies about the number
of accused persons, weapons and ammunitions carried
by them and they are not in tune with what the informant
(PW-9) has stated in his deposition. The prosecution has
not presented true version on most of the material parts
F and, therefore, the witnesses and material placed on their
side does not inspire confidence and cannot be accepted
on its face value. [para 32(n)] [216-E-F]
2.4 The prosecution is not sure, especially about the
actual place of occurrence since some witnesses
G demonstrated that it occurred near diesel engine and
some said the occurrence had taken place in the field of
'AM'. There are contradictions among the prosecution
witnesses on material facts and it is not safe to convict
all the accused based on the same. [para 32(c)] (214-H;
H 215-A]
KULDIP YADAV & ORS. v. STATE OF BIHAR 191

2.5 Even, on description of injuries alleged to have A
been sustained, the details furnished by the prosecution
·witnesses and the medical evidence vary on material
aspects. [para ·32(d)] [215·8]

2.6 Non-examination of diesel mechanic is fatal to the
8
prosecution case. Though his presence at the scene of
occurrence was mentioned by the prosecution witnesses
in their statements u/s. 164, it is not clear why the
prosecution did no~ examine him. [para 32(e)] [215-C]

2.7 Likewise, though the 10 collected blood stained C
clothes and other objects including earth from the site,
there is no information whether the same were examined
by the forensic science laboratory and what was the
outcome of the same. [para 32(f)] [215-D]
D
2.8 The place of occurrence has been shifted by
informant and the Investigating Officer has admitted not
making any site plan of the place of occurrence and he
casually acted on the basis of the statement ot the
informant without carrying his own investigation to
ascertain the actual place of occurrence. [para 32(h)] [215- E
F-G]

2.9 As it was morning time, at least some villagers in
their routine work must have been present in
neighbouring field who could have deposed regarding F
the occurrence and manner in which it did take place, if
they were examined. [para 32(i)] [215-G-H]

2.10 The injuries on the accused, particularly, fire arm
injury on A-1 has not been explained by the prosecution G
despite the fact that the informant parties were
chargesheeted for causing injuries on the person of four
accused. [para 320)] [216·A]

2.11 The weapons alleged to have been used in the
H
192 SUPREME COURT REPORTS [2011) 5 S.C.R.

A offence were not seized and no effort was made to
recover them. Thus, there is nothing on record to link the
accused persons to the crime. [para 32(k)] [216-B]
2.12 The bullet found by the doctor who conducted
the post-mortem of the deceased was not seized and
8
preserved for court's observation. [para 32(m)] [216-C]
3.1 Section 149 IPC makes it clear that before
convicting the accused with its aid, t.he court must give
clear finding regarding nature of common object and that
C the object was unlawful. In the absence of such finding
as also any overt act on the part of the accused persons,
mere fact that they were armed would not be sufficient
to prove common object. Section 149 creates a specific
offence and deals with punishment of that offence.
D Whenever the court convicts any person or persons of
an offence with the aid of s. 149, a clear finding regarding
the common object of the assembly must be given and
the evidence discussed must show not only the nature
of the common object but also that the object was
E unlawful. Before recording a conviction u/s. 149, essential
ingredients of s. 141 must be established. [para 26) [210·
C-F]
Bhudeo Manda/ and Others vs. State of Bihar 1981 ( 3)
=
SCR 291 (1981) 2 SCC 755; Allauddin Mian and others
F Sharif Mian and another vs. State of Bihar 1989 (2) SCR
=
498 (1989) 3 sec 5 - relied on.
3.2 It is not the intention of the legislature in enacting
s. 149 to render every member of unlawful assembly
G liable to punishment for every offence committed by one
or more of its members. In order to attracts. 149, it must
be shown that the incriminating act was done to
accomplish the common object of unlawful assembly and
it must be within the knowledge of other members as the
H one likely to be committed in prosecution of the common
KULDIP YADAV & ORS. v. STATE OF BIHAR 193

object. If the members of the assembly knew or were A
aware of the likelihood of a particular offence being
committed in prosecution of the common object, they
would be liable for the same u/s. 149 IPC. [para 29) [212-
B-C]
B
Rajendra Shantaram Todankar vs. State of Maharashtra
and others 2003 (1) SCR 1o= (2003) 2 sec 257 =2003 sec
(Crl.) 506 and State of Punjab vs. Sanjiv Kumar alias Sanju
and others 2007 (7) SCR 1025 = (2007) 9 SCC 791-reUed
on.
c
Ranbir Yadav vs. State of Bihar 1995 (2) SCR 826 =
(1995) 4 sec 392 - referred to.
3.3 In the instant case, There are several infirmities
in the prosecution evidence. No overt act had been o
attributed to any other accused persons except A-1
towards the murder of 'SY'. Had the other accused
persons intended or shared the common object to -kill
'SY', they must have used the weapons allegedly carried
by them to facilitate the alleged common object of E
committing murder. The Sessions Judge, on analysis,
held that no case u/s. 307/149 against the accused
persons could be made out for causing murderous
assault and hurt to prosecution witnesses. He further
observed that it appears that at least 4 of the accused F
persons were armed with gun but no gun shot Injury was
Inflicted against any of the Injured prosecution witnesses.
Had the accused persons intended to kill the witnesses,
they must have used the surest weapon of committing
murder i.e. gun against any of the witnesses. In view of
the fact that common object was not known to anybody G
and in the light of the principles enunciated over
application of s. 149 IPC and with the available material
on the side of the prosecution, it is not safe to convict
the accused persons u/s. 149 IPC. [para 31) [213-H; 214-
A-D] H
194 SUPREME COURT REPORTS [2011) 5 S.C.R.

A 3.4 There is no material to show that all the accused
shared in common object, the object itself not being
proved and their participation in it is not made out by
credible evidence. Without a clear finding regarding
common object and participation therein by each one of
B the accused members, there can be no conviction with
the aid of s. 149 IPC. [para 32(g)] [215-E]

4.1 The findings of the High Court and ultimate
conclusion dismissing the appeals are perverse and
C resulted in failure of justice. Under the circumstances, the
impugned judgment of the High Court and the judgment
and order of the trial court are . .
set aside'.Accused are
acquitted. [para 32(o) and 33) [216-G-H; 217-A-B]
Case Law Reference:
D (1985) 1 sec 422 referred to para 10
1999 (4) Suppl. SCR 120 relied on para 11
2003 (2) Suppl. SCR 1032 referred to para 12
2010 (11) SCR 716 referred to para 13
E
1981 (3) SCR 291 relied on para 26
1995 (2) SCR 826 referred to para 27
1989 (2) SCR 498 relied on para 28
F 2003 (1) SCR 10 relied on para 30
2007 (7) SCR 1025 relied on para 30
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 531 of 2005 etc.
G
From the Judgment & Order dated 26.09.2003 of the High
Court of Patna in Criminal Appeal No. 311 of 2003.

WITH

H Crl. A. Nos. 532 & 534 of 2005.
KULDIP YADAV & ORS. v. STATE OF BIHAR 195

Rajan K. Chourasia, Rakesh Kumar, C. Balakrishna, J.P.N. A
Gupta, Pankaj Kumar Singh, Manish Kumar, Gopal Singh,
Chandan Kumar for the appearing parties.

The Judgment of the Court was delivered by

P. SATHASIVAM,J. 1. These appeals are directed B
against the common judgment and final order dated
26.09.2003 passed by the Division Bench of the High Court of
Patna in Criminal Appeal Nos. 293, 307, 311 and 371 of 2000
. whereby the High Court upheld the judgment and order dated
26/27.06.2000 passed by the 1st Addi. District & Sessions C
Judge, Nawadah in Sessions Trial No ..333/97/40/97 convicting
the appellants herein for the offence punishable under Section
302 of the Indian Penal Code (in short the "IPC") read with
Section 27 of the Arms Act, 1959, Section 302 read with ·
Section 149 of the IPC and Section 324 read with Section 149 D
of the IPC and maintained the sentences imposed upon them.

2 Brief facts:

(a) The present group of appeals arises out of FIR No. 11
of 1997 registered at Police Station Govindpur, at the instance E
of one Naresh Yadav (PW-9) leading to Session Trial No. 333/
97140197 at the Court of 1st Addi. District & Sessions Judge,
Nawadah.

(b) There was a cross FIR No. 12 of 1997 registered at F
the same Police Station at the instance of one Sunil Yadav
(accused No.9 in FIR No. 11 of 1997) which was lodged at the
instance of the accused in FIR No. 11 of 1997.

(c) According to Naresh Yadav (PW-9)-the informant in FIR G
No. 11 of 1997, on 28.04.1997, at 9:00 a.m., all of a sudden,
, Brahamdeo Yadav, Darogi Mahto, Maho Yadav, Paro Mahto,
Kuldeep Yadav, Sudhir Yadav, Sunil Yadav s/o Bale Yadav,
Bale Yadav, Shiv Nandan Yadav, Sunil Yadav s/o Musafir Yadav
and Suraj Yadav armed with Saif, Shala, lathis and gun came
H
196 SUPREME COURT REPORTS [2011] 5 S.C.R.

A in a mob where Suresh Yadav- informant's elder brother, since
deceased, was getting his diesel machine repaired through a
mechanic Mohan Yadav. It was alleged that accused
Brahamdeo Yadav @.Bhonu Yadav shot a fire at Suresh Yadav
in the abdomen and when he went to help him, Sunil Yadav
B gave a saif blow causing injury on his lips. It was also alleged
that on hearing alarm Munshi Yadav, Ganuari Yadav and
Bindeshwar Yadav had come and they were also subjected to
assault by the accused persons. He also told that the victim
Suresh Yadav died on the way while being taken to the hospital.
c (d) On the basis of the farde bayan of Naresh Yadav-the
informant, FIR No. 11/97 was registered with Govindpur Police
Station under Sections 147, 148, 149, 323, 324, 307 and 302
IPC against Brahamdeo Yadav, Sunil Yadav s/o Bale Yadav,
Darogi Mahto, Maho Yadav, Paro Mahto, Kuldeep Yadav,
D Sudhir Yadav, Bale Yadav, Shiv Nandan Yadav and Suraj
Yadav. Sunil Yadav s/o Musafir Yadav was instituted. On
29.04.1997, S.I. Anil Kumar Gupta recorded the statement of
Sunil Yadav s/o Musafir Yadav at Nawadah Sadar Hospital and
on the basis of his statement FIR No. 12/97 was registered with
E Govindpur Police Station under Sections 147, 148, 149, 323,
324, 307 and 447 IPC against (i) Upendra Yadav (ii) Rambalak
Yadav (iii) Basudev Yadav (iv) Anil Yadav (v) Ganuari Yadav
(vi) Damodar Yadav (vii) Suresh Yadav (viii) Umesh Yadav (ix)
Muni Yadav (x) Naresh Yadav and (xi) Manager Yadav. The
F investigations in both the FIRs were taken by S.I. Mohd. Shibli,
Officer-in-charge of Govindpur Police Station.

(e) After investigation, charge sheet No. 12/97 was
submitted in FIR No. 11/97 and charge sheet bearing No. 36/
G 97 was submitted in FIR No. 12/97 against the accused
persons and thereafter the case was committed to the Court
of Sessions Judge and registered as Sessions Trial No. 333/
97/40/97.

(f) The prosecution examined ten witnesses in support of
H
KULDIP YADAV & ORS. v. STATE OF BIHAR 197
[P. SATHASIVAM, J.]

its claim, namely, Dr. Bipul Kumar, PW-1, Dr. R.K. Bibhuti, PW- A
2, Ganuari Yadav, PW-3, Bindeshwar Prasad @ Manager
Yadav, PW-4, Basudeo Yadav, PW-5, Kesho Yadav, PW-6,
Munshi Yadav, PW-7, Minta Devi, PW-8, Naresh Yadav, PW-
9 and Md. Shibli, Officer-in-Charge, Nawadh PS. PW-10.
B
(g) After completion of the trial, learned Sessions Judge
convicted all the accused for the offences punishable under
Sections 302, 324 read with 149 IPC and sentenced them to
undergo rigorous imprisonment for life and further imprisonment
of two years.
c
(h) Aggrieved by the order passed by the trial Judge, the
accused preferred different sets of appeals, namely, Criminal
Appeal Nos. 293, 307, 311 and 371 of 2000 beforo the High
Court of Patna. By the impugned judgment and order, after
accepting the prosecution case, the Division Bench of the High D
Court upheld the judgment of the Sessions Judge and
dismissed all the appeals.

(i) Aggrieved by the decision of the High Court, Par() Mahto
(AS), Kuldip Yadav (A6), . Sudhir Yadav (A7) filed Criminal E
Appeal No. 531 of2005, Brahamdeo Yadav (A1) filed Criminal
Appeal No. 532 of 2005 and Darogi Mahto (A2), Bale Yadav
(AS) and Suraj Yadav (A11) filed Criminal Appeal No. 534 of
2005 before this Court.

3. Heard Mr. Rajan K. Chourasia learned counsel for the F
appellants in Criminal Appeal Nos. 531 & 534 of 2005, Mr.
J.P.N Gupta, learned amicus curiae for the appellant in Criminal
Appeal No. 532/2005 and Mr. Manish Kumar, learned counsel
for the respondent-State.
G
FIR Nos. 11/97 and 12197
4. On the basis of the farde bayan of the informant Naresh
Yadav, F.l.R. No. 11/97 was registered with Govindpur P.S.
under Sections 147, 148, 149, 323, 324, 307 and 302 IPC
H
198 SUPREME COURT REPORTS [2011] 5 S.C.R.

A against Brahmdeo Yadav, Sunil Yadav, Darogi Mahto, Maho
Yadav, Paro Mahto, Kuldeep Yadav, Sudhir Yadav, Bale Yadav,
Shiva Nandan Yadav and Suraj Yadav. Sunil Yadav was
instituted.

B 5. On 29.04.1997, about 5:30 a.m., at Nawada Sadar
Hospital, SI Anil Kumar Gupta recorded the statement of Sunil
Yadav s/o Musafir Yadav and on the basis of his statement FIR
No 12/97 was registered with Govindpur P.S under Sections
147, 148, 149, 323, 324, 307, 447 IPC against Upendra Yadav,
C Rambalak Yadav, Basudev Yadav, Anil Yadav, Manager Yadav,
Ganuari Yadav, Damodar Yadav, Suresh Yadav, Umesh Yadav,
Muni Yadav and Naresh Yadav.

6. The investigation in both FIRs was taken by SI Md. Shivli,
Officer-in-charge, Govindpur Police Station. The charge-sheet
D bearing no. 12/97 was submitted in FIR No. 11/97 P.S.
Govindpur, on 30.06.1997 against Brahamdeo Yadav, Sunil
Yadav, Darogi Mahto, Maho Yadav, Paro Mahto, Kuldeep
Yadav, Sudhir Yadav, Bale Yadav, Shivan Yadav and Suraj
Yadav and Sunil Yadav who was later instituted.
E
7. The charge sheet bearing no. 36/97 was also submitted
in FIR No. 12/97 P .S. Govindpur, on 17 .12.1997 against
Upendra Yadav, Rambalak Yadav, Basudev Yadav, Anil Yadav,
Manager Yadav, Ganuari Yadav, Damodar Yadav, Umesh
Yadav, Muni Yadav and Naresh Yadav except Suresh Yadav
F s/o Kesho Yadav as he had died. The cognizance was taken
by the Court and charge was framed under Section 307 and
149 IPC.

8. It was highlighted that the prosecution witnesses are not
G certain about the place of death of the deceased Suresh Yadav.
At least three eye-witnesses stated, either in their statement
under Section 164 of the Code of Criminal Procedure, 1973
(in short the "Code") or during their examination under Section
313 that the deceased died at the spot which is contrary to the
H statement of Naresh Yadav (PW-9) eye-witness who stated that
KULDIP YADAV & ORS. v. STATE OF BIHAR 199
[P. SATHASIVAM, J.]
· he died on the way to hospital and which is consistent with the A
statement of Sunil Yadav informant in FIR No 12/97. Sunil
Yadav stated in his farde bayan that during altercation Suresh
Yadav received fire-arm injury which was shot by Upendra
Yadav and died. A perusal of the documents and cross
examination on behalf of the accused persons probabilize the B
version of the accused as set up in FIR No. 12/97 which
culminated into charge sheet No. 36/97 against the informant/
prosecution party.

Procedure in respect of cross cases
c
9. In order to understand the above issue, it is useful to
refer Section 223 (d) of the Code which reads as under:

"223. What persons may be charged jointly.-The
following persons may be charged and tried 0
together, namely:-

(a) xx
(b) xx
E
(c) xx

(d) persons accused of different offences committed in the
course of the same transaction;

(e) xx F
(f) xx

(g) xx"

10. The above provision has been interpreted by this Court G
in the following decisions. In Harjinder Singh vs. State of
Punjab and Ors. (1985) 1 SCC 422, the question before the
Court was whether under Section 223 of the Code it is
permissible for the Court to club and consolidate the case on
a police challan and the case on a complaint where the H
200 SUPREME COURT REPORTS [2011) 5 S.C.R.

A prosecution versions in the police challan case and the
complaint case are materially different, contradictory and
mutually exclusive. The question was whether the Court should
in the facts and circumstances of the case direct that the two
cases should be tried together but not consolidated i.e. the
B evidence be recorded separately in both cases and they may
be disposed of simultaneously except to the extent that the
witnesses for the prosecution which are common to both may
be examined in one case and their evidence be read as
evidence in the other. After analyzing the factual details, this
c Court has concluded:-

"8. In the facts and circumstances of this particular case
we feel that the proper course to adopt is to direct that the
two cases should be tried together by the learned
Additional Sessions Judge but not consolidated i.e. the
D evidence should be recorded separately in both the
cases one after the other except to the extent that the
witnesses for the prosecution who are common to both
the cases be examined in one case and their evidence
be read as evidence in the other. The learned Additional
E Sessions Judge should after recording the evidence of the
prosecution witnesses in one case, withhold his judgment
and then proceed to record the evidence of the prosecution
in the other case. Thereafter he shall proceed to
simultaneously dispose of the cases by two separate
F judgments taking care that the judgment in one case is not
based on the evidence recorded in the other case .... ."

{underlining supplied)

11. In Balbir vs. State of Haryana & Anr. (2000) 1 SCC
G 285, this Court considered clauses {a) and {d) of Section 223
. of the Code and held that the primary condition is that persons
should have been accused either of the same offence or of
different offences "committed in the course of the same
transaction". The expression advisedly used is "in the course
H of the same transaction". That expression is not akin to saying
KULDIP YADAV & ORS. v. STATE OF BIHAR 201
[P. SATHASIVAM, J.]
"in respect of the same subject-matter". For several offences A
to be part of the same transaction, the test which has to be
applied is whether they are so related to one another in point
of purpose ·or of cause and effect, or as principal and
subsidiary, so as to result in one continuous action. Thus, where
there is a commonality of purpose or design, where there is a · B
continuity of action, then all those persons involved can be
accused of the same or different offences "committed in the
course of the same transaction".

12. In Latu Prasad vs. State thr. CBI (2003) 11 SCC 786,
this Court held that amalgamation of cases under Section 223 C
is discretionary on the part of trial Magistrate and he has to be
satisfied that persons would not be prejudicially affected and
that it is expedient to amalgamate cases.

13. Regarding the argument based on Section 210(2) of D
the Code, it is useful to refer the decision of this Court reported
in Pal@ Palla vs. State of U.P. (2010) 10 SCC 123 which
reads as under:-

"27. Sub-section (2) of Section 210 provides that if a E
report is made by the investigating officer under Section
173 and on such report cognizance of any offence is taken
by the Magistrate against any person, who is an accused
in a complaint case, the Magistrate shall inquire into or try
the two cases together, as if both the cases had been
instituted on a police report. Sub-section (3) provides that F
if the police report does not relate to any accused in the
complaint case, or if the Magistrate does not take
cognizance of any offence on a police report, he shall
proceed with the inquiry or trial which was stayed by him,
in accordance with the provisions of the Code. G

28. Although it will appear. from the above that under
Section 210 CrPC, the Magistrate may try the two cases
arising out of a police report and a private complaint
H
202 . SUPREME COURT REPORTS [2011] 5 S.C.R.

A together, the same, in our view, contemplates a situation
where having taken cognizance of an offence in respect
of an accused in a complaint case, in a separate police
investigation such a person is again made an accused,
then the Magistrate may inquire into or try together the
B complaint case and the case arising out of the police
report as if both the cases were instituted on a police
report. That, however, is not the fact situation in the instant
case, since the accused are different in the two separate
proceedings and the situation has, in fact, arisen where
c prejudice in all possibility is likely to be caused in a single
trial where a person is both an accused and a witness in
view of the two separate proceedings out of which the trial
arises.

30 ...... As was observed in Harjinder Singh case 1
D clubbing and consolidating the two cases, one on a police
challan and the other on a complaint, if the prosecution
versions in the two cases are materially different,
contradictory and mutually exclusive, should not be
consolidated but should be tried together with the evidence
E in the two cases being recorded separately, so that both
the cases could be disposed of simultaneously."

14. In the case on hand, we have already noted that the
investigation was conducted by the same 1.0. in respect of the
F incident that took place on 28.04.1997 at Khalihan. Though in
the cross-case, that is, FIR No. 12/97, a complaint was made
on the next day i.e. on 29.04.1997 at about 5:30 A.M., from the
materials available, both the cases relate to the incident that
took place at 9 A.M. on 28.04.1997 which is also clear from
G the following information.

H
KULDIP YADAV & ORS. v. STATE OF BIHAR 203
[P. SATHASIVAM, J.]
FIR No. 11/97 P.S. GOVINDPUR FIR No. 12197 P.S. GOVINDPUR A
lnformant·Naresh Yadav (PW-9) lnformant-Sunil Yadav (A9 in FIR 11/
97)
Chargesheet submitted on Chargesheet submitted on 17.12.1997
30.06.1997
Charge was framed on 19.03.1999
Date of Judgment of 1rial Court: Date of Judgment of Trial Court: B
27.06.2000 18.11.2009
Accused Persons Accused Persons
1. Brahamdeo Yadav @ Bhonu 1. Upendra Yadav (Pistol)
Yadav (Gun)
2. Darogi Mahto (Gun) 2. Rambalak Yadav (Gun)
3. Maho Yadav (Gun) 3. Basudev Yadav (Gandassa) c
4. Sunil Yadav s/o Bale Yadav 4. Anil Yadav (Gandassa)
(Gun)
5. Paro Mahto (Lathi) 5. Bindeshwar Yadav @ Manager
Yadav (Gandassa)
6. Kuldip Yadav (Gandassa) 6. Ganori Yadav (Gandassa)
7. Sudhir Yadav (Bhala) 7. Damodar Yadav (Stick)
8. Balle Yadav (Gandassa) 8. Suresh Yadav (Stick) D
9. Sunil Yadav s/o Musafir Yadav 9. Umesh Yadav (Stick)
(Sail) (Informant in
FIR No. 12197)
10. Shivan Yadav (Gandassa) · 10. Muni Yadav (Gandassa)
11. Suraj Yadav (Shala) 11. Naresh Yadav (Gandassa)
E
Injury to deceased Suresh Injured person
1. An oral lacerated wound of Y>" 1. Brahamdeo Yadav @ Bhonu
diameter Yadav (A1 in FIR 11197)
With inverted and charred margin, 2. Sunil Yadav (A9 in FIR 11/97)
%" right to umbilicus of uncertain 3. Musafir Yadav
depth i.e. wound of entry F
2. Multiple bruises of size 3" x 2" to
1" x y," four in number over back
right lower chest and abdomen

Injured person
1. PW-3 Ganauri Yadav (AS in FIR
12/97) G
2. PW-4 Bindeshwar Yadav@
Yadav (A5 in FIR 12197) Manager
3. PW-7 Munshi Yadav (A10 in FIR
12197)
4. PW-9 Naresh Yadav (A11 in FIR
12/97)
H
204 SUPREME COURT REPORTS [2011) 5 S.C.R.

A 15. In view of the above factual details coupled with the
statements made by prosecution witnesses and in the light of
the principles enunciated by this Court, the Investigating Officer
ought to have brought to the notice of the trial Judge about the
two FIRs arising out of the same incident to avoid gross
B injustice to the parties concerned .

. Discrepancies in the prosecution witnesses

16. Among various witnesses examined by the
C prosecution, it heavily relied on the evidence of Naresh Yadav
(PW-9), Ganauri Yadav (PW-3), Bindeshwar Yadav (PW-4),
Kesho Yadav (PW-6), Munshi Yadav (PW-7), Minta Yadav
(PW-8) and Dr. R.K. Bibhuti (PW-2).

17. First, let us discuss the evidence of Naresh Yadav (PW-
9). He is the informant and Suresh Yadav- the deceased was
his brother. According to him, on Monday, i.e. on 28.04.1997,
he along with Suresh, Ganauri Yaday and Bindeshwar Yadav
were busy in getting the diesel machine repaired. Brahmdeo
Yadav, Darogi Mahto, Sunil S/o Bale Yadav, Maho Yadav,
Kuldeep Yadav, Bale Yadav, Suraj Yadav, Shiv Nandan Yadav,
Sunil Yadav S/o Musafir Yadav, Sudhir Yadav and Paro Mahto,
total 11 persons forming a group came there and surrounded
them. Brahmdeo Yadav, Sunil Yadav, Darogi Mahto and Maho
Yadav were armed with rifle. Bale Yadav, Kuldeep Yadav, Shiv
Nandan Yadav and Suraj Yadav were armed with Gandassa.
Sunil Yadav S/o Musafir Yadav was having saif in his hand.
Sudhir Yadav was having spear with him and Paro Mahto was
having lathi in his hand. The abovesaid persons surrounded
them whereupon they started running when Brahmdeo Yadav
fired shot from rifle hitting the abdomen of Suresh Yadav. He
further deposed that when he went to help Suresh to get up,
Sunil Yadav (A-4) using his saif hit him on his upper lip. Bale
Yadav (A-8) gave a Gandassa blow on the neck of Ganauri
Yadav and while stopping the. blow with his right hand, he
sustained injury on his palm. Kuldeep Yadav also gave him a
KULDIP YADAV & ORS. v. STATE OF BIHAR 205
[P. SATHASIVAM, J.]
Gandassa blow on the right hand. Shiv Nandan and Suraj Yadav A
too gave Gandassa blows to Ganauri Yadav. Sudhir Yadav
using Gandassa hit on the forehead of Bindeshwar Yadav.
Kuldeep Yadav gave gandassa blow to Munshi Yadav. Paro
Mahto also beat Ganauri Yadav with lathi. While they we.re
taking Suresh .to Govindpur Hospital, just after some distance, B
he died on the way. When they reached Govindpur Hospital,
S.I. recorded his statement. In his statement under Section 164
of the Code, he has not mentioned all the above details.
According to him, Suresh was alive at the spot but he died on
the way to Govindpur Hospital. Even, in respect of use .of c
weapons by the accused, he was not consistent with his earlier
statement made under Section 164 of the Code. f:ie also
admitted that S.I. seized blood stained earth in his presence.
He also stated that even though S.I. saw the clothes having
blood spots but he did not seize them. He also asserted that
0
at the relevant time, he was repairing diesel engine and Mohan-
Mechaniq was present at that time. -In cross-examination, he
also admitted that there is another counter case against the very
same incident and he informed the court that on that day he
did not see any injury on the person of Brahmdeo (A-1), Sunil E
Yadav (A-9) and Musafir Yadav. He also answered that when
Sures~ was running ahead of all of them, he was hit by a bullet
on his abdomen. It is not the case of any one that Suresh was
running towards the accused. On the other hand, it is their
definite case that the accused persons were chasing and
Suresh and others were running to escape from them. In such F
circumstances, there is no plausible explanation how the bullet
hit Suresh Yadav - the deceased, on his abdomen. From his
evidence, it is clear that though diesel mechanic-Mohan was
present, he denied his relationship with him in the statements
made later on. It was put to him that incident did not actually G
take place as stated and all accused were not present. It is also
clear from his evidence that injury on the accused was not seen
by him.

H
206 SUPREME COURT REPORTS [2011] 5 S.C.R.

A 18. The next witness heavily relied on by the prosecution
is Munshi Yadav (PW-7). According to him, accused persons
were armed and Brahmdeo Yadav (A 1) fired a shot from gun
which hit Suresh Yadav on his abdomen and he fell t:ln the
ground an~ when Ganauri Yadav (PW~) went for his re.scue,
B. five accused persons, namely, Bale Yadav (A8), Kuldeep
Yadav (A6), Sunil Yadav (A4), Suraj Yadav (A11) and Shiv
Nandan Yadav (A10), all armed with deadly weapons, started
beating him. Suresh Yadav died on the way to hospital. His
evidence also'makes it clear that he dfd\not deny the presence.
c of mechanic-Mohan at the place of occurrence. According to
him, the incident started when diesel engine was about to start.
A specific suggestion was put to him that Suresh Yadav died
from the bullet fired by Upendra,Yadav. 1.t is relev~nt to note the
condu~t· of (PW-7). He admitted in his evidence t~at after the

0 incident, he went to take the cow for grazing. It is Ul'\n€ltural that
after having seen the incident, without associating with his
fellow villagers abQut the crime,' he' coolly went for grazing his
cow which is unbelievable. '

19. Another witness r'efled on by the prosecution is
E Bindeshwar Prasad@ Manager Yadav (PW'.4). In his evidence,
h~'mentioned 17 persons as accused who w~te present at the
place of occurrence and, according to him, on seeing them, he
got afraid of his life but did not run away and remained standing.
He ~aid, when bullet hit Suresh, they start~d running. He further
F deposed that except Suresh Yadav, no other fell down due to
beating, all continued running and some of them reached their
homes and some remained,here. He has not only added more
names as accused persons but also asserted that the bomb
was exploded after firing of shots. He also mentioned that
G Suresh Yadav died on the way to hospital. A specific
suggestion was also given to this witness that Suresh Yadav
died from the bullet fired by Upendra Yadav. Here again, by
drawing our attention to his statement under Section .164 of the
Code, it was pointed out that there were lot of contradictions
H and inconsistencies in respect of vital aspects.
KULDIP YADAV & ORS. v. STATE OF BIHAR 207
[P. SATHASIVAM, J.]
20. The· next witness relied on by the prosecution is A.
Ganauri Yadav (PW-3). Like Bindeshwar Yadav (PW-4), he
also named 17 person~ as accused who came at the place of
occurrence and (A 1) fired from gun hitting the abdomen of
Suresh Yadav and other accused persons started beating. He
said when he fell down, he was not hit on neck with gandassa. B
He asserted that Suresh Yadav died on the spot. He received
one blow of spear and two blows of gandassa. He explained
that the said blow of spear was given by poking it into his body
and not like hitting with a lathi. He further deposed that the
attack with spear caused a hole in the vest also. As stated c
earlier, he asserted that Suresh Yadav died at the place of
occurrence itself, which is not in tune with the statement of other
prosecution witnesses. He said that blood did not fall on diesel
engine, however, it fell at the spot. He also informed the Court
that the blood oozed out from the wounds of all the injured and
0
its stains were present up to Govindpur hospital. He admitted
that he did not see any injury on the persons of accused. He
admitted that he was not ~n full sense when he made the
statement to S.I. under Section 164 of the Code. He also
referred to the use of bomb which was kept in a bag, though,
he did not say the same before the court.
E

21. Another witness relied on by the prosecution is Kesho
Yadav (PW-6)-father of th.e deceased. He admitted that he had
diesel engine in the field towards north of village. His sons,
namely, Suresh Yadav and Naresh Yadav were repairing the F
said engine for irrigation purposes. At that time, all the accused
Brahmdeo Yadav (A1), Darogi Mahto (A2), Maho Yadav (A3),
Sunil Yadav (A4) armed with guns in their hands, accused
Kuldip Yadav, Shiv Nandan Yadav,' Baleshwar, Suraj with •,
.... -~
gandassas, Su nil Yadav with saif, Sudhir yadav with spear and G
Paro Mahto with lathi came there. He further explained that
immediately on coming there, the accused persons surrounded
them and when they started running, they were caught in the - ' ·.-. ...
field of Aziz Mian. Accused Brahmdeo Yadav (A 1) fired from
H
208 SUPREME COURT REPORTS [2011] 5 S.C.R.

A gun and the bullet hit the abdomen of Suresh Yadav and he fell
down. Naresh Yadav went to lift Suresh from the ground when
Sunil Yadav hit him with saif causing injury to his· lips. When
Ganauri Yadav went to pick him up, Kuldeep Yadav hit on his
neck using gandassa. He also asserted that his son Suresh
B Yadav died at the spot itself. He further informed the court that
the bullet made a hole in the vest of his son and the cloth got
cut edges and that was handed over to the police.

22. Another witness examined on the side of the
C prosecution is Dr. Basudeo Yadav (PW-5). He attested the
seizure memo which was prepared by SI before him. He also
admitted that Naresh Yadav affixed his thumb impression before
him and he was present there. He did not say anything about
the occurrence. Minta Devi (PW-8)-wife of the deceased, also
did not elaborate anything about the incident.
D
23. Dr. R.K. Bibhuti, who treated injured Naresh Yadav
(PW-9) and other injured witnesses was examined as (PW-2).
He examined Naresh Yadav, Munshi Yadav, Ganauri Yadav,
Bindeshwar Yadav and after treatment issued a certificate
E about the same. Dr. Bipul Kumar, who conducted the autopsy
on the body of the deceased was examined as PW-1 and found
the following ante-mortem injuries:-

"(1) An oval lacerated wound of 1/2" diameter with inverted
F and charred margin, half inch right to illeg. of uncertain
depth, i.e. wound of entry.

(2) Multiple bruises of size 3"x2" to 1"x1/2", in four in
number over back, right lower chest and abdomen.
G On dissection abdominal cavity filled with blood and blood
clot, multiple perforations four in number of small intestine
locum and transverse colon, linear ruptured, a metallic
foreign body like bullet of 1 %" length and 1/6" in diameter
was lodged at U1 spine after piercing the abdominal aorta.
H
KULDIP YADAV & ORS. v. STATE OF BIHAR 209
[P. SATHASIVAM, J.]

Rest viscera were intact and pale, stomach conta'ins fluids A
about 100 ml. Bladder empty, heart· all chambers empty.

Cause of death - hemorrhage and shock produced by
above noted injuries. Injury No. 1 caused by firearm such
as gun. Injury No. 2 caused by hard and blunt object such B
as lathi."

24. The analysis of the evidence of R.K. Bibhuti (PW-2)
and the evidence of injured persons about the nature of injury
contradict each other. The analysis of witnesses examined on C
the side of the prosecution clearly show that they were not able
to identify the actual place of occurrence, namely, whether the
incident happened near the diesel engine or in the field of Aziz
Mian. They all had a different version about the nature of injuries
and they are not consistent whether the deceased died at the
spot or on the way to hospital or in the hospital. All these D
contradictions, uncertainties cannot be ignored lightly when
some of the accused also suffered bullet injuries in the same
incident, which is a cross case, namely, FIR No. 12/97.

Conviction under Section 149 IPC E

25. Apart from conviction under Section 302, all the
accused were also convicted under Section 149 IPC. Learned
counsel appearing for the appellants demonstrated that, fi_rst of
all, there was no common object, even if, it is admitted that F
there was a common object, the same was not known to
anybody, in such circumstances, punishment under Section 149
IPC is not warranted. On the other hand, learned counsel
appearing for the State submitted that when the charge is under
Section 149 IPC, the presence of the accused as part of G
unlawful assembly is sufficient for conviction, even if, no overt
act is imputed to them. In other words, according to him, mere
presence of the accused as part of unlawful assembly is
sufficient for conviction. In order to understand the rival claim,
it is useful to refer Section 149 which reads as follows:-
H
210 SUPREME COURT REPORTS [2011] 5 S.C.R.

A "149. Every member of unlawful assembly guilty of
offence committed in prosecution of common
object.-lf 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 of that assembly
knew to be likely to be committed in prosecution of that
object, every person who.• at the time of the committing of
that offence, is a member of the same assembly, is guilty
of that offence."

C 26. The above provision makes it clear that before
convicting accused with the aid of'Section 149 IPC, the Court
must give clear finding regarding nat4re of common object and ,
that the object was unlawful. -Jn the absence of such finding as ·
', also ai'tY.'overt act on the p~it of the accused persons, mere ·~: ·.
fact that they ,were armed would not be sufficient to prove ·
D common object. Section 149 creates~~ specific offence and
deals with punishment of that offence. Whenever the court
convicts any person or persons of an offence with the aid of
Section 149, a clear finding regarding the common object of
the assembly must be given and the evidence discussed must
E show not only the nature of the common object but also that the
object was unlawful. Before recording a conviction under
Section 149 IPC, essential ingredients of Section 141 IPC must
be established. The above principles have been reiterated in
Bhudeo Manda/ and Others vs. State of Bihar (1981) 2 SCC
F 755. ,
. '
27. In Ranbir Yadav vs. State of Bihar (1995) 4 SCC 392,
this Court highlighted that where there are party factions, there
is a tendency to include the innocent with the guilty and it is
G extremely difficult for the court to guard against such a danger.
It was pointed out that the only real safeguard against the risk
of condemning the innocent with the guilty lies in insisting on
acceptable evidence which in some measure implicates such ' ·
"""'-'' '
· ' accused and satisfies the conscience of the court.
H
.'
\ "

. ·\

KULDIP YADAV & ORS. v. STATE OF BIHAR 2:.t1
[P. SAT{iASIVAM, J.] '
\

28. In Allaiid,din Mian and others Sharif Mian and another A
,vs. State of Bihar (1989) 3 SCC 5, thi~ Court held:-
' I '
" ... :Therefore, in order to fasten.vicarious \esRonsibility on
any member of an unlawful assembly the prosecution must
\ \
prove that the. act constituting ,an offence was done in
\ ' \' . \. . B
prosecution of the common objectof that assembly or th'e \ '·
act done is such as the members of that assembly knew
to be likely to be colllmitted in prosecution of the cqmmon \

object of that assembly. Under this section, therefore~every • '
' ''

member of an ur;ilawful assembly renders himself liat>le for
.
the criminal act or acts of any ,other meml:ler or members
c\
of that, assembly provided the $ame is/are done in
prosecution of the qommon object cir is/are such as every
member of that assembly knew to be likely to be
~~ committed. This section creates a specific offence and
makes every member of the unlawful assembly liable for D
the offence or offences ~mmitted in the course of the
occurrefl,ce provided ~he same was/were committed in
prosecution of the common object or was/were such as the
members of that assembly knew to be likely to be
committed.· Since this section imposes a constructive E
penal liability, ·it must be strictly construed as it seeks to
punish members of an unlawful assembly for the offence
or offences committed by their associate or associates in
carrying out the common object of the assembly. What is
important in each case is to find out if the offence was F
committed to accomplish the common object of the
assembly or was one which the members knew to be likely
to be committed. There must be a nexus between the
common objectand the offence committed and if it is found
that the same was committed to accomplish the common G
object every member of the assembly will become liable
for the same. Therefore, any offence committed by a
member of an unlawful assembly., in prosecution of any one
or more of the five objects mentioned in Section 141 will
'\ render his companions constituting the unlawful assembly
.'.\
H
212 SUPREME COURT REPORTS [2011) 5 S.C.R.

A liable for that offence with the aid of Section 149, IPC ... ."

29. It is not the intention of the legislature in enacting
Section 149 to render every member of unlawful assembly
liable to punishment for every offence committed by one or more
of its members. In order to attract Section 149, it must be shown
8
that the incriminating act was done to accomplish the common
object of unlawful assembly and it must be within the knowledge
of other members as one likely to be committed in prosecution
of the common object. If the members of the assembly knew
or were aware of the likelihood of a particular offence being
C committed in prosecution of the common object, they would be
liable for the same under Section 149 IPC.

30. In Rajendra Shantaram Todankar vs. State of
Maharashtra and others (2003) 2 SCC 257=2003 SCC (Crl.)
D 506, this Court has once again explained Section 149 and held
asunder:

"14. Section 149 of the Indian Penal Code provides that
if an offence is committed by any member of an unlawful
E assembly in prosecution of the common object of that
assembly, or such as the members of that assembly knew
to be likely to be committed in prosecution of that object,
every person who at the time of the committing of that
offence, is a member of the same assembly is guilty of that
offence. The two clauses of Section 149 vary in degree of
F
certainty. The first clause contemplates the commission of
an offence by any member of an unlawful assembly which
can be held to have been committed in prosecution of the
common object of the assembly: The second clause
embraces within its fold the commission of an act which
G
may not necessarily be the common object of the
assembly, nevertheless, the members of the assembly had
knowledge of likelihood of the commission of that offence
in prosecution of the common object. The common object
may be commission of one offence while there may be
H
KULDIP YADAV & ORS. v. STATE OF BIHAR 213
[P. SATHASIVAM, J.]
likelihood of the commission of yet another offence, the A
knowledge whereof is capable of being safely attributable
to the members of the unlawful assembly. In either case,
every member of the assembly would be vicariously liable
for the offence actually committed by any other member
of the assembly. A mere possibility of the commission of B
the offence would not necessarily enable the court to draw
an inference that the likelihood of commission of such
offence was within the knowledge of every member of the
unlawful assembly. It is difficult indeed, though not
impossible, to collect direct evidence of such knowledge. c
An inference may be drawn from circumstances such as
the background of the incident, the motive, the nature of
the assembly, the nature of the arms carried by the
members of the assembly, their common object and the
behaviour of the members soon before, at or after the
0
actual commission of the crime. Unless the applicability of
Section 149 - either clause - is attracted and the court
is convinced, on facts and in law, both, of liability capable
of being fastened vicariously by reference to either clause
of Section 149 IPC, merely because a criminal act was E
committed by a member of the assembly every other
member thereof would not necessarily become liable for
such criminal ad. The inference as to likelihood of the
commission of the given criminal act must be capable of
being held to be within the knowledge of another member
of the assembly who is sought to be held vicariously liable F
for the said criminal act.. .. "

The same principles have been reiterated in State of Punjab
vs. Sanjiv Kumar alias Sanju and others (2007) 9 SCC 791.
G
Summarization of the principles attracting S.149

31. In the earlier part of our order, we have analysed the
evidence led in by the prosecution and also pointed out several
infirmities therein. In our view, no overt act had been attributed
H
214 SUPREME COURT REPORTS [2011) 5 S.C.R.

A to any other accused persons except Brahmdeo Yadav (A1)
towards the murder of Suresh Yadav. Had the other accused
persons intended or shared the common object to kill Suresh
Yadav, they must have used the weapons allegedly carried by
them to facilitate the alleged common object of committing
B murder. The Sessions Judge, on analysis, held that no case
under Section 307/149 against all the 11 accused persons be
made out for causing murderous assault and hurt to Naresh
Yadav, Munshi Yadav, Bindeshwar Yadav and Ganauri Yadav.
The learned Judge further observed that it appears that at least
c 4 of the accused persons were armed with gun but no gun shot
injury was inflicted against any of the aforesaid injured
prosecution witnesses. Had the accused persons intended to
kill the witnesses, they must have used the surest weapon of
committing murder i.e. gun against any of the aforesaid
witnesses. In view of the fact that common object was not known
0
to anybody and in the light of the principles enunciated over
application of Section 149 IPC and with the available material
on the side of the prosecution, we hold that it is not safe to
convict the accused persons under Section 149 IPC.
E 32. Summary of all the issues:

(a) Though both the FIRs (11/97 and 12/97) were
investigated by the very same 10, he had not acted in good
discipline and not drawn the attention of the trial Judge about
F the cross cases arising out of the same incident.

(b) By reading the statement of prosecution witnesses
under Section 164 of the Code and their evidence before the
Court clearly show their improvements with due deliberation and
G consultation and in the absence of credible explanation,
conviction based on their testimony cannot be sustained.

(c) The prosecution is not sure, especially about the actual
place of occurrence since some witnesses demonstrated that
it occurred near diesel engine and some said the occurrence
H
KULDIP YADAV & ORS. v. STATE OF BIHAR 215
[P. SATHASIVAM, J.]
had taken place in the field of Aziz Mian. We have already noted A
down the contradictions among the prosecution witnesses on ,
. material facts and it is not safe to convict all the accused based
on the same.

{d) Even, on description of injuries alleged to have been B
sustained, the details furnished by the prosecution witnesses
. and the medical evidence vary on material aspects.

(e) Non-examination of diesel mechanic-Mohan Yadav is
fatal to the prosecution case. Though, his presence at the scene C
of occurrence was mentioned by the prosecution witnesses
under Section 164, it is not clear why the prosecution did not
examine him.
..;;\
; \

(f) Likewise, though the 10 collected blood stained clothes
and other objects including earth from the site, there is no ....
, \
t·..., ..
information whether the same were examined by the forensic
science laboratory arid the outcome of the same.

{g) There is no material to show that all the accused
shared in common object, the object itself not being proved and E
their participation in it is not made out by credible evidence.
Without a clear finding regarding common object and
participation therein by each one of the accused members, \ \·.
there can be no conviction with the aid of Section 149 IPC. '

F
{h) The place of occurrence has been shifted by informant
and the investigating' officer has admitted not making any site
plan of the place of occurrence and casually acted on the basis
of the statement of the informant without carrying its own
investigation to ascertain the actual place of occurrence.
G
{i) As it was morning time, at least some villagers in their.
routine work must have been present in neighbouring field who ; •
could have deposed regarding the occurrence and manner in
which it ,dld take place, if they were examined.
' .',

\,
;:·· "
~.
216 SUPREME COURT REPORTS [2011] 5 S.C.R.

A 0) The injuries on the accused, particularly, fire arm injury
on Brahmdeo Yadav has not been explained by the prosecution
despite the fact that the informant parties were chargesheeted
for causing those injuries on the person of Brahmdeo Yadav,
Darogi Mahto, Musafir Yadav and Sunil Yadav.
B
(k) The weapons alleged to be used in the offence were
not seized and no effort was made to recover them. Hence,
there is nothing on record to link the accused persons to the
crime.
c (I) The blood stained clothes, blood stained earth of the
place of occurrence were not sent to forensic laboratory for
chemical examination.

(m) The bullet found by the doctor who conducted the post-
0 mortem of the deceased was not seized and preserved for
court's observation.

(n) The version given by eye-witnesses who were also
interested witnesses on account of their relationship with the
E deceased and being inimically deposed against the accused
persons is highly exaggerated, contrary to each other and not
fully corroborated with medical evidence and there are
discrepancies about the number of accused persons, weapons
and ammunitions carried by them and they are not in tune with
F what (PW-9) informant has stated in his deposition. In other
words, the prosecution has not presented true version on most
of the material parts and therefore the witnesses and material
placed on their side does not inspire confidence and cannot
be accepted on its face value.
G (o) The findings of the High Court and ultimate conclusion
dismissing the appeals are perverse and resulted in failure of
justice.

33. Under these circumstances, the impugned judgment
H
KULDIP YADAV & ORS. v. STATE OF BIHAR 217
[P. SATHASIVAM, J.]
of the High Court dated 26.09.2003 in Criminal Appeal Nos. A
293, 307, 311 and 371 of 2000 and the judgment and order
dated 26/27.06.2000 passed by the 1st Addi. District &
Sessions Judge, in Sessions Trial No. 333/97/40/97 are set
aside. All the accused are directed to be released forthwith
unless their prese,:nce is required in some other case. Appeals B
are allowed.

R.P. Appeals allowed.