Supreme Court of India
Taijuddin vs State Of Assam on 1 December, 2021Author: Sanjay Kishan Kaul

Bench: Sanjay Kishan Kaul, M.M. Sundresh


CRIMINAL APPEAL NO._1526__ of 2021
Arising out of Special Leave to Appeal (Crl.) No.7816 of 2019

TAIJUDDIN … Appellant


STATE OF ASSAM & ORS. …Respondents



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

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

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

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

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

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


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
(2013) 4 SCC 607
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

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


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

(2013) 16 SCC 752
(2010) 5 SCC 645
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


16. The appellant be released forthwith, if not required in any other


[Sanjay Kishan Kaul]

[M.M. Sundresh]
New Delhi.
December 01, 2021.



Leave a Reply

Sign In


Reset Password

Please enter your username or email address, you will receive a link to create a new password via email.