From Presence to Participation: Supreme Court Clarifies Section 149 IPC and FIR Gatekeeping in Zainul v. State of Bihar

Introduction

This commentary examines the Supreme Court of India’s decision in Zainul v. State of Bihar, 2025 INSC 1192 (Criminal Appeal Nos. 1187-1188 of 2014), decided on 07 October 2025 by a Bench comprising J.B. Pardiwala, J. and R. Mahadevan, J. The case stemmed from a 1988 agrarian flashpoint in Katihar district, Bihar, culminating in two homicides and injuries to five persons amid allegations that a large mob (400–500 persons) attacked members of the Mahto community over “parcha” (settlement) land.

At trial, 21 of 24 charge-sheeted accused were convicted under Section 302 read with Section 149 IPC (unlawful assembly). The Patna High Court partly allowed appeals, acquitting seven but affirming 11 convictions. Before the Supreme Court, 10 co-convicts maintained that they were either wrongly identified or roped in as passive onlookers, that the First Information Report (FIR) was not the earliest information to police, and that the prosecution evidence suffered from material inconsistencies, including conflicts between ocular and medical evidence.

The Supreme Court allowed the appeals, setting aside the convictions. In doing so, it:

• Re-clarified the contours of constructive liability under Section 149 IPC, emphasizing the need to distinguish innocent bystanders from actual members of an unlawful assembly sharing a “common object”.
• Reiterated a rule of prudence in mass-violence prosecutions: courts should ordinarily look for consistent, reliable accounts by two or more witnesses before fastening group liability in large-crowd incidents.
• Tightened FIR gatekeeping by holding that when the police had received earlier information about the occurrence, a subsequent statement (here, of PW-20) could not be treated as the FIR but only as a Section 161 CrPC statement, with attendant consequences for the credibility of the investigation.

Summary of the Judgment

The Supreme Court acquitted all appellants, holding that the prosecution failed to prove its case beyond reasonable doubt. Key reasons included:

• Material contradictions and embellishments in the testimonies of injured eyewitnesses (PWs 3, 5, 6, 10, 20), including inconsistencies about who assaulted whom, which weapons were used, and when the police first received information.
• Conflicts between ocular and medical evidence (e.g., alleged lathi blows vs. exclusively incised wounds found by doctors; alleged gandasa injury to the leg without corresponding medical record).
• Failure to show that all or any of the appellants shared the common object of an unlawful assembly; the evidence allowed the real possibility that some were passive onlookers.
• The statement of PW-20—later formalized as the FIR—could not be treated as the first information because the police had already received earlier intimation of the incident (OD slip; witness accounts of early police arrival; medical examinations “on police requisition”); therefore, the FIR lacked the necessary spontaneity and tainted the investigation.

Applying long-settled authorities on Section 149 IPC and on the primacy and integrity of the FIR, the Court concluded that the High Court’s affirmance of convictions lacked the rigorous evaluation demanded in mob cases and that benefit of doubt must go to the accused.

Analysis

Precedents Cited and Their Influence

• Mizaji v. State of U.P. (1958): Clarified the two limbs of Section 149—(i) offence committed in prosecution of the common object, and (ii) offence which members knew was likely in prosecution of the common object. The Court used this to stress that mere presence is insufficient; knowledge/common object must be inferable from conduct, weapons, and circumstances.
• Mohan Singh v. State of Punjab (1963): Reaffirmed that Section 149 is a form of constructive liability predicated on membership of an unlawful assembly of five or more persons sharing a common object. The Court invoked this to insist that the “common object” must be proved before vicarious liability can attach.
• Masalti v. State of U.P. (1964): Endorsed the prudential test in large-crowd prosecutions—ordinarily look for consistent accounts by two or more credible witnesses. The Court revived this caution to avoid miscarriages where general allegations are levelled against many.
• Muthu Naicker v. State of T.N. (1978): Distinguished curious spectators from members of the unlawful assembly; reiterated that vicarious liability cannot be fastened absent proof of participation or knowledge. The Court applied this to identify the risk of over-inclusion in factional rural violence.
• Sherey v. State of U.P. (1991): In mass-implication settings, it is safer to convict only those consistently named from the earliest report with specific roles; omnibus allegations are unreliable. The Court leaned on this to discount later embellishments.
• Akbar Sheikh v. State of W.B. (2009): Courts need material indicating sharing of common object; naming alone is insufficient. Cited to reinforce the passive-onlooker safeguard.
• Subal Ghorai v. State of W.B. (2013): Restated constructive liability while cautioning against convicting passive onlookers; membership at all crucial stages must be shown. The Court integrated this to its final holding on Section 149.
• Charan Singh v. State of U.P. (2004): Provided criteria to infer common object from conduct, arms, and behaviour; clarified differences between “common object” and “common intention”. Adopted to examine whether a shared objective existed.
• Joy Devaraj v. State of Kerala (2024): Minor inconsistencies about weapons can be natural in chaotic assaults; not always fatal if the core narrative stands. The Court acknowledged this but found the inconsistencies here to be material and outcome-determinative.
• Balu Sudam Khalde v. State of Maharashtra (2023): Set out the special status of injured eyewitnesses while cautioning against discarding their testimony for minor contradictions. The Court applied these principles and still found the contradictions here to be major.
• Abdul Syeed v. State of M.P. (2010): When medical evidence makes ocular testimony improbable, it becomes a relevant factor; if it rules out the ocular account, the latter may be disbelieved. Relied upon to assess lathi vs. incised injuries and claimed gandasa blows.
• State of M.P. v. Balveer Singh (2025): Two principal considerations for eyewitness evaluation—credibility of presence and inherent probability of the account. The Court used this lens to test the prosecution’s version.
• Vasant @ Girish Sanavale v. State of Karnataka (2025): Liability under Section 149 is not dependent on individual intention once a common object is proved. The State’s reliance on this was counterbalanced by the Court’s finding that the common object itself was not proved against these appellants.
• Bikau Pandey v. State of Bihar (2003): Common object can be inferred from conduct, language, arms, and the sequence of events. The Court found those indicators too equivocal in this case.
• State of A.P. v. Punati Ramulu (1994) and Ranbir Yadav v. State of Bihar (1995): If police had prior notice and begin investigating, a later statement cannot be treated as the FIR. The Court relied on these to hold that PW‑20’s statement was only a Section 161 CrPC statement, undermining the prosecution’s FIR foundation.

Legal Reasoning

The Court’s reasoning proceeded in three converging streams:

1. Section 149 IPC—From mere presence to proven participation/knowledge:
   • Mere presence amidst a melee does not make one a “member” of an unlawful assembly.
   • Courts must infer “common object” from a granular assessment of weapons carried, conduct before/during/after the incident, the nature and distribution of injuries, and the unfolding of events—applied to each accused, not to the crowd in bulk.
   • In mass implication cases, the “Masalti rule” (look for consistent accounts by two or more credible witnesses) should be applied to avoid convicting passive onlookers.
   • On this record, the appellants’ presence and roles were either not consistently established or materially contradicted. Instances included: PW‑3 alleging a gandasa blow on his leg without a corresponding medical injury; PW‑5 alleging lathi blows when medical evidence showed incised wounds only; PW‑6 naming accused uncorroborated by others; PW‑10 naming persons never charge-sheeted.
2. Credibility of injured eyewitnesses and medical-ocular harmony:
   • While injured eyewitnesses enjoy enhanced credence, their accounts in this case were not consistent inter se and materially conflicted with medical findings.
   • The Court highlighted that injuries prove presence but do not immunize a testimony from searching scrutiny where contradictions strike at the substratum of participation and identity.
3. FIR Gatekeeping and the taint of delayed/derivative FIR:
   • On the record, police had earlier notice via an OD slip; the medical officer examined injured persons “on police requisition”; several PWs said police arrived at the scene between 11 a.m. and noon and recorded statements; yet, PW‑20’s statement at 1:25 p.m. was treated as the FIR.
   • Applying Punati Ramulu and Ranbir Yadav, the Court held that PW‑20’s statement was, at best, a Section 161 CrPC statement; failure to produce roznamcha/daily diary entries concerning earlier police action further eroded the FIR’s authenticity.
   • Once the FIR’s primacy and spontaneity were compromised, the overall investigation appeared tainted, demanding heightened caution.

Impact

The decision has significant doctrinal and practical consequences:

• Refined application of Section 149 IPC: Courts will more stringently separate passive onlookers from assembly members, especially in factional or riot-like settings. Expect a higher threshold for group liability in cases with large accused cohorts and diffuse evidence.
• Revival of the “Masalti prudence” in contemporary practice: Trial and appellate courts are reminded to look for consistent, corroborated accounts by two or more reliable witnesses before invoking Section 149 in mass-violence cases.
• FIR integrity and documentation duties: Investigating officers must promptly reduce the earliest information to writing and preserve primary station records (roznamcha/daily diary, OD slips, requisitions). Lapses risk the FIR being downgraded to Section 161 statements, weakening the prosecution.
• Prosecution strategy recalibration: Prosecutors should avoid omnibus charge-sheets that over-implicate bystanders. Focus should shift to corroborated roles, weapon-use consistency with medical findings, and contemporaneous records.
• Defence advocacy: The decision strengthens standard defence challenges to FIR timing, medical-ocular conflicts, and mass implication; however, it does not license impunity where a common object is clearly established with credible, corroborated testimony.

Complex Concepts Simplified

• Unlawful Assembly (Section 141 IPC): A group of five or more persons assembled with a common object to do acts listed in the section (e.g., resist law, seize property, commit offences). The “common object” is a shared purpose; it may evolve during the incident.
• Common Object vs. Common Intention: Common object is about shared purpose (no prior meeting of minds is necessary); common intention (Section 34 IPC) implies a prearranged plan. Section 149 focuses on object and membership, not individual intention.
• Constructive Liability (Section 149 IPC): If an offence is committed by any member in prosecution of the common object or with the members’ knowledge of its likelihood, every member is liable—even without an overt act—provided membership and the shared object are proved.
• Passive Onlooker: A person present at the scene out of curiosity or happenstance without sharing the assembly’s common object. Presence alone does not create liability under Section 149.
• FIR (First Information Report): The earliest information to police that discloses a cognizable offence and sets the criminal law in motion. It must be recorded promptly. If police had earlier notice and commenced inquiry, a later statement is only a Section 161 CrPC statement, not an FIR.
• Roznamcha/Daily Diary: Police station’s contemporaneous log of events/actions (e.g., receipt of information, departure to scene, hospital visits). Courts expect production of these to corroborate FIR timing and police action.
• Fardbeyan: A statement recorded by police (often at hospital/spot) that can form the basis of an FIR if it is indeed the earliest information.
• Ocular vs. Medical Evidence: Eyewitness testimony ordinarily has primacy, but if medical evidence makes the ocular narrative improbable or impossible (e.g., nature/location of wounds), the court may reject or recalibrate the ocular account.
• Beyond Reasonable Doubt: A high standard of proof requiring actual and substantial doubts (grounded in reason and common sense) to be dispelled; not fanciful or speculative doubts.

Case Background and Evidentiary Audit

The prosecution case originated in a land-settlement (parcha) dispute. PW‑20 (injured) alleged that a large mob attacked him and his brother (Meghu, deceased). Two persons (Meghu and Sarjug) died; PWs 3, 5, 6, 10, and 20 sustained injuries. An FIR naming 72 persons was registered; 24 were charge-sheeted; 21 convicted by the Trial Court; the High Court acquitted seven as possible passive onlookers but affirmed 11 convictions.

The Supreme Court identified multiple evidentiary fractures:

• Contradictory narratives on early police involvement: Witnesses variably stated that police reached the spot around 11 a.m.–noon, recorded statements, and that medical examinations were on police requisition—yet the formal FIR was drawn later from PW‑20’s hospital statement.
• Ocular-medical mismatches:
  • PW‑3’s alleged gandasa blow to the leg had no medical correlate; injuries described were not consistent with gandasa wounds.
  • PW‑5 alleged lathi blows from two accused, but medical evidence showed only incised wounds.
  • PW‑6 attributed roles to certain accused uncorroborated by any other witness.
  • PW‑10 implicated persons not even charge-sheeted and denied earlier police-attributed statements.
• Overbreadth and later pruning: The FIR named 72 persons; many were neither named consistently by eyewitnesses nor charge-sheeted; others were acquitted by the Trial Court and High Court—illustrating the dangers of mass implication.
• PW‑20’s credibility gap: He said he fell unconscious and could not identify who assaulted other injured/deceased persons—but the fardbeyan attributed to him detailed names allegedly supplied by others, which those others denied supplying—undercutting reliability.

Why the High Court’s Approach Was Found Wanting

The High Court rightly acknowledged that related witnesses are not per se unreliable and that some accused might have been passive onlookers (hence acquittals). But it fell short in two respects:

• Insufficiently rigorous application of Section 149 prudence: In a mass-violence setting with generalised allegations, the High Court should have insisted on consistent corroboration by multiple reliable witnesses for each accused and assured medical harmony. That yardstick was not consistently applied to the 11 whose convictions were affirmed.
• FIR provenance not adequately addressed: The contradictions about when and how the first information reached police and the absence of supporting station records (roznamcha/OD entries) undermined the sanctity of the FIR treated as the foundation for the prosecution narrative.

Doctrinal Takeaways

• Section 149’s “common object” is a fact-intensive inference; courts must not collapse the analysis into a presumption from mere presence in a crowd.
• “Masalti prudence” remains good law: in large-crowd prosecutions, ordinarily require consistent accounts by two or more credible witnesses to safely convict.
• Injured eyewitnesses command respect, but material contradictions and medical-ocular conflicts can still defeat the prosecution burden.
• FIR purity matters: if police had earlier notice and commenced steps, a later statement is not the FIR and reliance on it without contemporaneous records can taint the prosecution.
• Benefit of doubt is not a technicality; it flows from disciplined adherence to proof standards and procedural integrity.

Conclusion

Zainul v. State of Bihar is a careful recalibration of two vital criminal law guardrails: the limits of constructive liability under Section 149 IPC, and the sanctity of the FIR as the foundational narrative of the prosecution. The Supreme Court underscores that, in mob prosecutions, courts must differentiate presence from participation and insist on consistent, corroborated evidence—both ocular and medical—before drawing the net of vicarious liability. Simultaneously, investigators are reminded that the earliest information must be faithfully recorded and documented; where earlier police knowledge exists, a later statement cannot masquerade as the FIR.

The ruling has immediate implications for riot and group-assault prosecutions: it raises the evidentiary bar for invoking Section 149 in large assemblies; it encourages precise, corroborated charge-sheets; and it deters overbroad, omnibus allegations. Ultimately, it fortifies the integrity of criminal adjudication by aligning doctrinal clarity with procedural rigor, ensuring that only those who truly share the common object of an unlawful assembly are held to account.