Bystander Liability Test

Source: Supreme Court  

Why in News? 

Recently, the Justice JB Pardiwala and Justice R Mahadevan acquitted 10 individuals convicted in a 1988 Bihar community clash, holding that mere presence at the crime scene does not make a person part of an unlawful assembly under Section 149 IPC. The Court clarified that liability arises only when the accused shares the common object of the assembly. 

• The Supreme Court held this in the matter of Zainul v. The State of Bihar (2025). 

What was the Background of Zainul v. The State of Bihar (2025) ? 

• On November 20, 1988, a violent clash occurred in Katihar District, Bihar, resulting in two deaths and five serious injuries over a dispute concerning settlement land. The incident began around 8:00 AM when Jagdish Mahato and his brother Meghu Mahato went to inspect their agricultural field after harvesting paddy crops from land officially assigned to them by the State Government. According to the prosecution, a large group of 400-500 armed persons from Mahila village were hiding near the settlement land with weapons including guns, pistols, spears, axes, swords, and sticks, intending to prevent Jagdish from harvesting his crops. 
• When the brothers reached the field, the armed group allegedly surrounded them and began pelting stones. Meghu Mahato was shot dead during this attack. Several villagers rushed to help after hearing the commotion, but they too were attacked. Sarjug Mahato was also shot dead, while five others sustained serious injuries. The investigating officer recorded Jagdish Mahato's statement at 1:30 PM at the hospital, which became FIR No. 148 of 1988. Remarkably, 72 persons were named as accused, though only 24 were ultimately chargesheeted. The Trial Court convicted 21 accused persons to life imprisonment, while the High Court acquitted 7 more, upholding conviction of 12 persons. Eventually, 10 appellants reached the Supreme Court after two died during the appeal process.

What were the Court’s Observations? 

• The Supreme Court elaborated comprehensively on principles governing Section 149 IPC, which prescribes constructive criminal liability for members of an unlawful assembly. The Court emphasized that the nucleus of Section 149 is the "common object" shared by assembly members, and mere presence at the crime scene does not automatically make someone a member of an unlawful assembly. The Court distinguished between passive onlookers present out of curiosity and actual members who participate with knowledge of the assembly's unlawful purpose. 
• The Court laid down parameters to determine common object, including the time and place of assembly formation, conduct of members, collective behavior, motive, manner of occurrence, nature of weapons used, and extent of injuries inflicted. The Court stressed that common object must be inferred from circumstances and cannot be presumed from mere presence. 
• The Court enunciated a crucial rule of prudence for mass crime cases, observing that in rural factional disputes, numerous curious spectators appear who have no role in the offense. Courts must exercise utmost care to avoid convicting innocent persons along with the guilty. Endorsing the principle from Masalti v. State of Uttar Pradesh (1964), the Court held that where large numbers are involved, conviction should be sustained only when supported by consistent accounts of at least two or three reliable witnesses. 
• The Court stressed that where evidence is partisan and witnesses belong to one faction, the possibility of innocent persons being falsely implicated cannot be ruled out. While partisan evidence cannot be rejected solely on that ground, it must be examined with utmost caution. Regarding injured witnesses, the Court held that while injuries lend credence to their presence, their testimony must still be free from material contradictions and must satisfy the court's conscience. 
• Applying these principles to the present case, the Court found serious infirmities. Jagdish Mahato admitted falling unconscious after assault, contradicting his police statement claiming other injured persons informed him about 41 additional assailants. Material contradictions existed between court depositions and police statements. Medical evidence did not corroborate witness testimony—witnesses claimed being hit by sticks but medical evidence showed only incised wounds from sharp weapons. 
• The Court expressed serious concern about FIR authenticity, noting that information reached police hours before the FIR was officially registered. The Court held this rendered the investigation tainted. Examining each appellant individually, most were identified only in an omnibus manner without specific overt acts attributed to them. The unexplained dropping of 48 accused persons from the original 72 named raised doubts about the case's genuineness. 
• The Supreme Court concluded that the prosecution failed to prove its case beyond reasonable doubt and acquitted all 10 appellants, holding they were entitled to benefit of doubt as the prosecution failed to establish they were members of the unlawful assembly or committed any overt act in furtherance of unlawful purpose. 

What Is the Test to Determine That Whether the Bystander Shared a Common Object with the Unlawful Assembly? 

• a. Time and Place of Assembly Formation 
  • The Court held that examining when and where the unlawful assembly was formed reveals whether there was prior planning and coordination. If members gathered at a specific time and strategic location, it indicates premeditation and shared intent rather than spontaneous or chance presence. 
• b. Conduct and Behaviour at or Near the Scene 
  • Individual conduct at the scene is a significant indicator of shared purpose. If an accused person's actions demonstrate active participation, encouragement, or support for the unlawful activity, it shows shared common object. Merely standing by without participating indicates an innocent bystander. 
• c. Collective Conduct of the Assembly 
  • The Court distinguished between individual and collective conduct. If members acted in concert—moving together, attacking together, or acting synchronously—it demonstrates shared common object. Coordinated collective action strengthens the inference of common purpose, while independent actions weaken it. 
• d. Motive Underlying the Crime 
  • Motive is critical in determining common object. If an accused had the same motive as other members—such as settling a dispute, taking revenge, or asserting dominance—it indicates shared common object. Shared motive proves the person was not a spectator but an active participant with reasons to further the assembly's purpose. 
• e. Manner in Which the Occurrence Unfolded 
  • The Court emphasized examining the sequence of events and how different members participated. If the occurrence shows systematic execution with role distribution, it indicates shared common object. The manner reveals whether there was organized action or chaotic violence, and whether the attack was sustained and coordinated. 
• f. Nature of Weapons Carried and Used 
  • Similar weapons among members suggest prior preparation and shared purpose. If members came armed with deadly weapons, it indicates knowledge that violence was contemplated. The type of weapons also reveals the seriousness of the common object—whether to threaten, injure, or commit murder. 
• g. Nature, Extent, and Number of Injuries Inflicted 
  • The pattern of injuries provides crucial evidence about common object. If multiple victims received similar injuries from different members, it shows collective assault pursuant to common purpose. The severity indicates whether the object was simple hurt or grievous harm or death. Multiple injuries on vital body parts suggest shared murderous intent.