KULDIP YADAV & ORS. versus STATE OF BIHAR

Citation: [2011] 5 S.C.R. 186 · Decided: 11-04-2011 · Supreme Court of India · Bench: P. SATHASIVAM · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
B 
[2011] 5 S.C.R. 186 
KULDIP YADAV & ORS. 
v. 
STATE OF BIHAR 
(Criminal Appeal No. 531 of 2005 etc.) 
APRIL 11, 2011 
[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 
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 
F 
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
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