2026 Supreme(All) 560

HIGH COURT OF JUDICATURE AT ALLAHABAD
J.J. MUNIR, TARUN SAXENA, JJ.
Hari Prasad Pandey And Others - Appellants
Versus
State of U.P. -  Respondent
CRIMINAL APPEAL No. - 818 of 1985
Decided On : 05-05-2026

An unlawful assembly formed with a common object remains legally culpable even if members split into smaller groups to pursue that object. The initial shared purpose and collective force define the assembly; fragmentation does not dissolve liability under Section 149 IPC when the common object persists.

Headnote:(A) Indian Penal Code, 1860 - Sections 302, 147, 148, 149, 307, 323, 324 - Unlawful assembly - Common object - Murder - Conviction - Splitting of an unlawful assembly into smaller groups of fewer than five persons during the commission of an offence does not absolve members of liability under Section 149 IPC, provided the common object remains the same and was pursued consistently. (Paras 94, 95, 105)

(B) Evidence - Retracted testimony - Witness turned hostile via post-deposition affidavit - Credibility of - Once a witness has testified consistently with the prosecution case, a subsequent retraction via affidavit, especially when the witness belongs to a vulnerable socioeconomic background, is suspicious and should be rejected if the initial testimony was consistent with medical evidence and corroborated by other witnesses. (Paras 89, 90, 92)

(C) Evidence - Motive - Relevance in cases of direct evidence - In a case resting on credible and consistent ocular evidence, the presence or absence of motive is of negligible importance and does not weaken the prosecution case. (Paras 71, 72)

Facts of the case:
Eight individuals arrived at a location, variously armed with lethal and non-lethal weapons, with the common object of murdering the deceased. During the commission of the offence, the assembly split into two groups to pursue different targets to accomplish their common object. The defence contended that since the resulting groups were smaller than five, the requirements for an unlawful assembly under Section 149 IPC were not met. Furthermore, a key witness retracted her testimony via affidavit post-trial.

Findings of Court:
The court held that an assembly does not cease to be unlawful simply because it operates in smaller fragments to achieve a shared objective. The fragmentation was merely a tactical modification to remove obstacles to their common goal. The retracted testimony was dismissed as an attempt to sabotage the trial, likely induced by external pressure.

Issues: Whether an unlawful assembly loses its legal character when it divides into smaller subgroups; whether a post-deposition affidavit retracting prior consistent testimony renders the evidence unreliable.

Ratio Decidendi: The status of an unlawful assembly is determined by the common object and the initial formation; tactical division of participants to pursue a single object in different locations does not terminate the assembly. Testimony that is consistent, corroborated by medical findings, and given in court carries higher evidentiary weight than a later, suspicious retracting affidavit.

Result: Appeal dismissed; conviction upheld.

Table of Content
1. factual background, procedural history, and framing of charges. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14)
2. establishing timeline, geographic location, and sequence of events. (Para 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24)
3. credibility of natural eyewitnesses despite existing enmity. (Para 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34)
4. consistency of ocular evidence with medico-legal autopsy reports. (Para 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56 , 57 , 58 , 59 , 60 , 61 , 62 , 63 , 64 , 65 , 66 , 67 , 68)
5. irrelevance of motive in cases established by credible direct evidence. (Para 69 , 70 , 71 , 72)
6. evaluation of retracted testimony and impermissibility of witness flip-flops. (Para 73 , 74 , 75 , 76 , 77 , 78 , 79 , 80 , 81 , 82 , 83 , 84 , 85 , 86 , 87 , 88 , 89 , 90 , 91 , 92)
7. constructive liability and application of section 149 ipc for unlawful assembly. (Para 93 , 94 , 95 , 96 , 97 , 98 , 99 , 100 , 101 , 102 , 103 , 104 , 105 , 106 , 107 , 108)
8. final dismissal of appeal and order for surrender. (Para 109 , 110)

JUDGMENT :

J.J. Munir, J.

1. This appeal, though preferred by the eight convicts, who were tried before the Sessions Judge of Basti in Sessions Trial No.159 of 1984, and all convicted under Sections 302 read with Section 149 of the Indian Penal Code, 1860 (for short, 'IPC'), one alone of them, that is to say, Ramakant, survives to pursue it. The other seven convicts have died pending appeal at different points of time. The appeal was ordered to abate on behalf of each of the seven deceased convicted appellants vide order dated 24.11.2025. The appeal was heard on the said day at the instance of Ramakant alone.

2. This appeal is directed against the judgment and order of Mr. K. Narayan, the then Sessions Judge, Basti dated 21.03.1985, convicting the appellant, along with others, for the offence punishable under Section 302 read with Section 149 IPC and sentencing him to imprisonment for life, besides other counts, in regard to which term sentences were variously awarded, some to the deceased-appellants and others to the appellant, as would hereinafter be detailed.

3. A First Information Report ('FIR' in short) was lodged by Ram Pragat Pandey son of Nirmal Pandey on 01.04.1984 at 6.30 a.m. regarding an incident, that happened earlier in the day at 6.30 a.m., giving rise to Crime No.49 of 1984, under Sections 147, 148, 149, 307, 324, 323 IPC, Police Station Rudhauli, District Basti. According to the first informant, elections to the office of Pradhan of the Village were held, wherein the then sitting Pradhan Hari Prasad Pandey faced contest from Rammurat Chaudhary. Shesh Bahadur Chauhan and the informant's family had openly supported Rammurat Chaudhary and assisted him, leading the then Village Pradhan Hari Prasad to harbour ill-will against Shesh Bahadur Chauhan and the informant's family. In the night intervening 27/28.03.1984, Hari Prasad, Swami Nath, Deena Nath and Patandeen, burgled in Shesh Bahadur's house, leading to the registration of an FIR against them on 28.03.1984. This infuriated the four men last mentioned, making them go after Shesh Bahadur Chauhan and the informant's family. Harbouring the aforesaid animosity, in the morning hours of 01.04.1984 at 6.30 a.m., according to the informant, when he and his father had gone to their chak, located on the northern side of the village, and were about their task of harvesting, and Shesh Bahadur and his mother were at their shop near the informant's chak, Hari Prasad Pandey, Mahipat Pandey, Swami Nath Pandey, Deena Nath Pandey, Ramakant Pandey, Tara Prasad Pandey, Patandeen Chauhan and Sadhu Saran arrived there variously armed. Hari Prasad Pandey was carrying a spear, Mahipat Pandey a Farsa, Sadhu Saran a country-made pistol, whereas all others were wielding sticks (lathi-danda). All these men, with a common object, alighted at Shesh Bah

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