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Supreme Court of India
Taijuddin vs State Of Assam on 1 December, 2021Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul, M.M. Sundresh
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO._1526__ of 2021
Arising out of Special Leave to Appeal (Crl.) No.7816 of 2019
TAIJUDDIN … Appellant
Versus
STATE OF ASSAM & ORS. …Respondents
JUDGMENT
SANJAY KISHAN KAUL, J.
1. Leave granted.
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 not succeed as the house was surrounded, walls of the
Signature Not Verified
Digitally signed by
house were broken and a mounted assault made on the victim. Different
Charanjeet kaur
Date: 2021.12.01
16:33:03 IST
Reason:
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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.
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
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
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
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having pointed out the house where the victim was hiding.
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 PW-11 (son
of the deceased) did not mention the appellant at all. PW-1, 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 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.
That explains the presence of the appellant at 6:30 a.m. in the morning
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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, 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 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 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
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having stated that the appellant along with others chased the victim. The
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
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 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
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
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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.”
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
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.
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
offence out of curiosity but that did not make them share the common
1
(2013) 4 SCC 607
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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
shared common object of the unlawful assembly. Not only should the
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 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
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
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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 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 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 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
2
(2013) 16 SCC 752
3
(2010) 5 SCC 645
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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 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.
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 other
case.
………………………………J.
[Sanjay Kishan Kaul]
………………………………J.
[M.M. Sundresh]
New Delhi.
December 01, 2021.
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