The Supreme Court has reaffirmed that mere presence at the scene of a crime does not automatically render a person a member of an unlawful assembly under Section 149 of the Indian Penal Code (IPC). The Court clarified that liability can arise only when it is proven that the accused shared the common object of the unlawful assembly.

A Bench comprising Justice J.B. Pardiwala and Justice R. Mahadevan made these observations while acquitting 10 individuals who were convicted in connection with a 1988 communal clash in Bihar’s Katihar district. The accused had been charged under Sections 148, 149, 307, and 302 IPC, but the apex court found that the prosecution failed to establish that they shared a common object with the assembly that committed the violence.

“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 Section 149 IPC,” the Court observed.

The Bench emphasized that the prosecution bears the burden of proving, through direct or circumstantial evidence, that an accused shared the unlawful assembly’s intent. It warned against convicting passive onlookers or innocent bystanders, particularly in cases involving large mobs.

To determine whether a person was merely a bystander or shared a common object, the Court outlined a multi-factor test, including:
(a) the time and place where the assembly was formed;
(b) the conduct and behaviour of its members at or near the crime scene;
(c) the collective conduct of the assembly, distinct from individual actions;
(d) the motive behind the crime;
(e) the manner in which the occurrence unfolded;
(f) the nature of weapons carried or used; and
(g) the extent and number of injuries inflicted, along with other relevant considerations.

The judgment authored by Justice Pardiwala drew upon the principle in Masalti v. State of Uttar Pradesh (1964 SCC OnLine SC 30), which cautioned courts to demand corroboration by at least two or three reliable witnesses when multiple individuals are accused in mob-violence cases.

“Where there are general allegations against a large number of persons, the court must remain extremely careful before convicting them on vague or omnibus evidence. It is safe to convict only those whose consistent presence is established from the stage of FIR and to whom overt acts are attributed that furthered the common object of the unlawful assembly,” the judgment stated.

The Court reiterated that criminal liability under Section 149 IPC arises only when the accused’s participation goes beyond mere presence and extends to active sharing of the unlawful object. If the evidence merely shows that the accused were present at the scene without proof of participation, conviction cannot be sustained.

In the present case, the Court noted that the prosecution’s evidence was vague and general, lacking clear identification of each accused’s role. The Bench held that the witnesses’ testimonies failed to distinguish passive bystanders from active participants, thereby failing the evidentiary threshold required under law.

“The prosecution has not produced cogent and credible evidence to prove that the appellants shared the murderous intent of the mob. Their presence at the site, without more, cannot attract Section 149 liability,” the Court concluded.

Consequently, the Supreme Court set aside the convictions and acquitted all 10 appellants, underscoring that criminal courts must exercise the “utmost caution” in mass trial cases to prevent miscarriage of justice.

Cause Title: Zainul v. State of Bihar