TAIJUDDINversusSTATE OF ASSAM & ORS.

444                       [2021]
               SUPREME COURT     9 S.C.R. 444
                              REPORTS                         [2021] 9 S.C.R.


A                                  TAIJUDDIN
                                         v.
                           STATE OF ASSAM & ORS.
                       (Criminal Appeal No. 1526 of 2021)
B                             DECEMBER 01, 2021
         [SANJAY KISHAN KAUL AND M.M. SUNDRESH, JJ.]
             Penal Code, 1860 – ss.147/148/324/302/201 r/w 149 –
      Unlawful assembly – When not part of – Land dispute – Victim died
      in a mob attack – 32 accused persons convicted and sentenced to
C
      life imprisonment – High Court convicted some while gave benefit
      of doubt to others – SLPs by unsuccessful appellants dismissed –
      However, notice issued in appellant’s case – Held: Only role
      assigned to the appellant was that of pointing out the place where
      the victim was hiding – Family members of the deceased never even
D     pointed a finger at the appellant – His presence at the site is explained
      – His house was almost adjacent to where the deceased was hiding
      – He did not come along with the mob – He was carrying no weapon,
      he did not assault anybody – Finding of his accompanying the mob
      is not sustainable – Mere fact that the appellant was not brave
      enough to conceal where the victim was hiding did not make him a
E
      part of the unlawful assembly – Acquitted.
            Allowing the appeal, the Court
            HELD : 1.1 PW-1, the informant, attributed to the appellant
      the role of pointing out the location of the deceased. Nothing
F     more is stated qua the appellant. Further, PW-8 was not a witness
      who had seen the incident but he believed what others said and
      narrated the same. Thus, the reliance placed in the impugned
      judgment on the testimony of PW-8 to rope in the appellant under
      Section 149 of the IPC cannot be sustained. This is more so as
      PW-7 is also a hostile witness. The mere fact that the appellant
G     was not brave enough to conceal where the victim was hiding did
      not make him a part of the unlawful assembly. The presence of
      the appellant is explained at the early hours in the morning because
      of his house being almost adjacent to where the deceased was
      hiding. He certainly did not come along with the mob. He was
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                                        444
           TAIJUDDIN v. STATE OF ASSAM & ORS.                          445


carrying no weapon and he did not assault anybody. The finding         A
of his accompanying the mob is not sustainable on the basis of
the evidence. The only evidence of his involvement is that he
pointed to the house where the victim was hiding. Given that a
murderous mob fully armed was hunting for him, the appellant at
best can be said not to be brave enough to conceal the deceased
                                                                       B
or even to have not pointed out where he was, but that by itself
cannot rope in the appellant under Section 149 of the IPC. [Paras
5, 9, 10 and 11][447-A-B; 448-D-E; 448-E-F; 449-B-D]
       1.2 Taking into consideration the inconsistency in the
testimonies – inasmuch as the family members never even pointed
a finger at the appellant as also some of the other witnesses,         C
while the witnesses who did point a finger only assigned the role
of pointing out the place where the victim was hiding, coupled
with his natural presence at site, it cannot, thus, be said that by
any stretch of imagination the case against the appellant has been
proved beyond reasonable doubt or for that matter really no case       D
seems to have been proved against the appellant given the role
assigned to him in the testimony of the witnesses. The appellant
is entitled to a clean acquittal in the given facts. The conviction
under Section 147/148/302/201/149 is set aside [Paras 11, 14]
[449-G-H; 450-A-B]
                                                                       E
      Subal Ghorai v. State of West Bengal (2013) 4 SCC
      607 : 2013 (5 ) SCALE 275; Ranjit Singh v. State of
      Punjab and Ors (2013) 16 SCC 752 : [2013] 13 SCR
      633; C. Magesh and Ors. v. State of Karnataka (2010)
      5 SCC 645 : [2010] 5 SCR 623 – relied on.
                                                                       F
                      Case Law Reference
[2013] 13 SCR 633              relied on               Para 12
[2010] 5 SCR 623               relied on               Para 13
     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
                                                                       G
No.1526 of 2021.
      From the Judgment and Order dated 15.03.2019 of the High Court
of Gauhati at Gauhati in Crl. A. No.166 of 2015.
      Abir Phukan, Surya Prakash, Ashkrit Tiwari, Ms. Anisha Mathur
for M/s Kmnp Law, Advs. for the Appellant.                             H
446            SUPREME COURT REPORTS                           [2021] 9 S.C.R.


A           Debojit Borkakati, Vivek Sonkar, Advs. for the Respondents.
            The Judgment of the Court was delivered by
            SANJAY KISHAN KAUL, J.
            1. Leave granted.
B            2. A land dispute caused the loss of life of Abdul Wahab (‘the
      victim’). A house was being constructed on land stated to be of the
      victim and others when the accused persons came in a mob towards the
      house of the victim armed with lathis, spears, daggers, etc. The endeavour
      of the victim to escape by taking shelter in the house of Shorab Ali did
C     not succeed as the house was surrounded, walls of the house were
      broken and a mounted assault made on the victim. Different accused
      were assigned different roles to the extent of the weapon they wielded.
      The body of the victim was carried and disposed of by throwing in the
      river Brahmaputra.

D            3. Case No.145 of 1998 was registered by Bagbar police station
      under Sections 147/148/149/324/326/302/201 of the IPC. The
      decomposed body of the victim was recovered subsequently, which was
      sent for post-mortem. Charges were framed against the accused under
      Sections 147/148/324/302/201 read with Section 149 of the IPC and all
      the accused pleaded not guilty. The learned Sessions Judge convicted all
E     the 32 accused and sentenced them to life imprisonment vide judgment
      dated 8.5.2015.
             4. The convicted persons preferred appeals. During the pendency
      of the appeal four accused passed away. A Division bench of the Gauhati
      High Court decided the appeals on 15.3.2019 convicting some of them
F     while giving benefit of doubt to others. The unsuccessful appellants
      preferred appeals before this Court and their SLPs were dismissed vide
      order dated 6.9.2019. The only exception was the present criminal appeal/
      special leave petition filed by Taijuddin, in which notice was issued on
      the plea that the role assigned to the appellant was only of having pointed
      out the house where the victim was hiding.
G
             5. We have heard learned counsel for the parties. Learned counsel
      for the appellant took us through a summary chart filed qua the appellant
      and others which specified which witness had stated what. The chart
      qua the appellant before us would show that PW-3 (wife of the deceased),
      PW-6 (daughter of the deceased), PW-10 (son of the deceased) and
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             TAIJUDDIN v. STATE OF ASSAM & ORS.                                    447
                  [SANJAY KISHAN KAUL, J.]

PW-11 (son of the deceased) did not mention the appellant at all. PW-1,            A
the informant, attributed to the appellant the role of pointing out the location
of the deceased. A perusal of his testimony shows that he stated “Taijuddin
showed that my father Abdul Wahab was inside the house of Sorab.”
Nothing more is stated qua the appellant. PW-4, PW-5 and PW-15, once
again, stated to the same effect, i.e., that the appellant pointed out the
                                                                                   B
location of the deceased. Interestingly, PW-15 is stated to have
controverted the testimony of PW-1 while going along with PW-4 and,
once again, contradicting the testimony of PW-7.
        6. Learned counsel for the appellant referred to a sketch map of
the site, placed on record to submit that house “F” belongs to the appellant,
which was almost adjacent to the house where the deceased was found.               C
That explains the presence of the appellant at 6:30 a.m. in the morning
when the incident is stated to have occurred.
       7. Our attention was invited to how the High Court had dealt with
the aspect of conviction of the appellant, which was based on the
testimony of PW-7 and PW-8. PW-7 stated that the appellant was armed,              D
he assaulted the deceased, and also pointed out where the deceased
was hiding. However, PW-7 turned hostile but the High Court found that
the relevant testimony of the hostile witness could be segregated to the
extent of pointing out the location of the deceased. The discussion about
the appellant is contained in para 33 of the impugned judgment. Relevant           E
in this behalf is PW-4’s statement, to the effect that when the accused
persons moved forward and were about to cross the house of Shorab,
the appellant told them “where are you proceeding? Abdul Wahab is
there in the house of Shorab.” It is only thereafter that the accused
persons surrounded the house of Sohrab and mounted an assault on
Abdul Wahab, causing his death. The testimony of PW-7 was believed                 F
to the extent it supported what other prosecution witnesses, PW-1, PW-
4, and PW-5 had stated – showing the presence of the appellant at the
place of occurrence and helping other accused persons in tracing out
the victim. PW-8 and another independent witness are also noticed as
having stated that the appellant along with others chased the victim. The          G
impugned judgment takes note of the testimony of PW-8 that he was
scared of seeing the occurrence and did not come out of his house. The
fact that PW-8 categorically stated that he had seen the appellant along
with other accused persons chasing the victim was stated to be the
testimony which was undented and could not be disbelieved only because
                                                                                   H
448               SUPREME COURT REPORTS                        [2021] 9 S.C.R.


A     he did not come out of the house out of fear. A finding was thus reached
      that the appellant accompanied the accused persons in chasing the victim
      and it was the appellant who assisted other members of unlawful assembly
      to locate the victim in the house of Sohrab. On this basis a common
      intention was found of seeking to kill the victim especially when the
      accused persons, being armed with deadly weapons, chased the victim
B
      with the war cry “catch and kill Wahab” and the appellant also
      accompanied them and actively participated and guided others to locate
      the victim.
             8. It was the submission of the learned counsel for the appellant
      that the testimony of PW-8 had not been read correctly. Learned counsel
C     invited our attention to the cross-examination of PW-8 wherein he stated
      that he did not see who had killed the victim, tied him and carried him
      away. He stated that “...later on I heard about it. Today I have stated
      whatever I had heard.” He further went on to state “I have mentioned
      the names of the (accused) persons after hearing them from other people.”
D           9. The aforesaid testimony leaves us in no manner of doubt that
      PW-8 was not a witness who had seen the incident but he believed what
      others said and narrated the same. Thus, the reliance placed in the
      impugned judgment on the testimony of PW-8 to rope in the appellant
      under Section 149 of the IPC cannot be sustained. This is more so as
E     PW-7 is also a hostile witness.
             10. In our view, learned counsel for the appellant rightly contended
      that the mere fact that the appellant was not brave enough to conceal
      where the victim was hiding did not make him a part of the unlawful
      assembly.
F            11. Learned counsel for the appellant sought to rely upon the
      judgment of this Court in Subal Ghorai v. State of West Bengal1, more
      specifically paras 42 and 53 to canvas that constructive liability cannot
      be stretched to lead to the false implication of innocent bystanders. This
      Court considered the possibility of often people gathering at the scene of
G     offence out of curiosity but that did not make them share the common
      object of the assembly. The Court must guard against the possibility of
      convicting mere passive onlookers who did not share the common object
      of the unlawful assembly. There must be reasonable direct or indirect
      circumstances which lend assurance to the prosecution case that they
      1
H         (2013) 4 SCC 607
               TAIJUDDIN v. STATE OF ASSAM & ORS.                            449
                    [SANJAY KISHAN KAUL, J.]

shared common object of the unlawful assembly. Not only should the           A
members be part of the unlawful assembly but should share the common
object at all stages. This has to be based on the conduct of the members
and the behaviour at or near the scene of the offence, the motive for the
crime, the arms carried by them and such other relevant considerations.
Once we examine the factual matrix of the case at hand, the presence
                                                                             B
of the appellant is explained at the early hours in the morning because of
his house being almost adjacent to where the deceased was hiding. He
certainly did not come along with the mob. That does not preclude him
from being part of the mob or acquiring the common intention at that
stage, but then that is not what happened. He was carrying no weapon
and he did not assault anybody. The finding of his accompanying the          C
mob is not sustainable on the basis of the evidence discussed above.
The only evidence of his involvement is that he pointed to the house
where the victim was hiding. Given that a murderous mob fully armed
was hunting for him, the appellant at best can be said not to be brave
enough to conceal the deceased or even to have not pointed out where
                                                                             D
he was, but that by itself cannot rope in the appellant under Section 149
of the IPC.
       12. Learned counsel for the appellant also referred to the judgment
of this Court in Ranjit Singh v. State of Punjab and Ors.2 Specifically,
para 39, where the Court referred to the aspect of faction-ridden village
community having a tendency to implicate innocents along with the guilty     E
especially when a large number of assailants are involved in commission
of the offence – which is a matter of common knowledge. The
depositions have to be carefully scrutinised in such a scenario.
      13. Learned counsel also referred to the judgment in C. Magesh
and Ors. v. State of Karnataka3 especially paras 45 and 46 to emphasise      F
the importance of evidence being evaluated on the touchstone of
consistency. The eye-witness require a careful assessment and their
testimony must be evaluated for its credibility.
      14. On the touchstone of the aforesaid judgments, taking into
consideration the inconsistency in the testimonies – inasmuch as the         G
family members never even pointed a finger at the appellant as also
some of the other witnesses, while the witnesses who did point a finger
only assigned the role of pointing out the place where the victim was
2
    (2013) 16 SCC 752
3
    (2010) 5 SCC 645                                                         H
450            SUPREME COURT REPORTS                          [2021] 9 S.C.R.


A     hiding, coupled with his natural presence at site, we cannot, thus, say
      that by any stretch of imagination the case against the appellant has
      been proved beyond reasonable doubt or for that matter really no case
      seems to have been proved against the appellant given the role assigned
      to him in the testimony of the witnesses. In our view the appellant is
      entitled to a clean acquittal in the given facts.
B
             15. The conviction under Section 147/148/302/201/149 is set aside.
      The appeal is accordingly allowed leaving the parties to bear their own
      costs.
            16. The appellant be released forthwith, if not required in any
C     other case.

      Divya Pandey                                                Appeal allowed.




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