TAIJUDDIN versus STATE OF ASSAM & ORS. on 1 December 2021

1. Leave granted.

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2. A land dispute caused the loss of life of Abdul Wahab (‘thevictim’). A house was being constructed on land stated to be of thevictim and others when the accused persons came in a mob towards thehouse of the victim armed with lathis, spears, daggers, etc. The endeavourof the victim to escape by taking shelter in the house of Shorab Ali didCnot succeed as the house was surrounded, walls of the house werebroken and a mounted assault made on the victim. Different accusedwere assigned different roles to the extent of the weapon they wielded.The body of the victim was carried and disposed of by throwing in theriver Brahmaputra.

D3. Case No.145 of 1998 was registered by Bagbar police stationunder Sections 147/148/149/324/326/302/201 of the IPC. Thedecomposed body of the victim was recovered subsequently, which wassent for post-mortem. Charges were framed against the accused underSections 147/148/324/302/201 read with Section 149 of the IPC and allthe accused pleaded not guilty. The learned Sessions Judge convicted allEthe 32 accused and sentenced them to life imprisonment vide judgmentdated 8.5.2015.

4. The convicted persons preferred appeals. During the pendencyof the appeal four accused passed away. A Division bench of the GauhatiHigh Court decided the appeals on 15.3.2019 convicting some of themFwhile giving benefit of doubt to others. The unsuccessful appellantspreferred appeals before this Court and their SLPs were dismissed videorder dated 6.9.2019. The only exception was the present criminal appeal/special leave petition filed by Taijuddin, in which notice was issued onthe plea that the role assigned to the appellant was only of having pointedout the house where the victim was hiding.G

5. We have heard learned counsel for the parties. Learned counselfor the appellant took us through a summary chart filed qua the appellantand others which specified which witness had stated what. The chartqua 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) andH

TAIJUDDIN v. STATE OF ASSAM & ORS.[SANJAY KISHAN KAUL, J.]

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 locationof the deceased. A perusal of his testimony shows that he stated “Taijuddinshowed 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, onceagain, stated to the same effect, i.e., that the appellant pointed out thelocation of the deceased. Interestingly, PW-15 is stated to havecontroverted 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 ofthe 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 morningwhen the incident is stated to have occurred.

7. Our attention was invited to how the High Court had dealt withthe aspect of conviction of the appellant, which was based on thetestimony of PW-7 and PW-8. PW-7 stated that the appellant was armed,he assaulted the deceased, and also pointed out where the deceasedwas hiding. However, PW-7 turned hostile but the High Court found thatthe relevant testimony of the hostile witness could be segregated to theextent of pointing out the location of the deceased. The discussion aboutthe appellant is contained in para 33 of the impugned judgment. Relevantin this behalf is PW-4’s statement, to the effect that when the accusedpersons moved forward and were about to cross the house of Shorab,the appellant told them “where are you proceeding? Abdul Wahab isthere in the house of Shorab.” It is only thereafter that the accusedpersons surrounded the house of Sohrab and mounted an assault onAbdul Wahab, causing his death. The testimony of PW-7 was believedto the extent it supported what other prosecution witnesses, PW-1, PW-4, and PW-5 had stated – showing the presence of the appellant at theplace of occurrence and helping other accused persons in tracing outthe victim. PW-8 and another independent witness are also noticed ashaving stated that the appellant along with others chased the victim. Theimpugned judgment takes note of the testimony of PW-8 that he wasscared of seeing the occurrence and did not come out of his house. Thefact that PW-8 categorically stated that he had seen the appellant alongwith other accused persons chasing the victim was stated to be thetestimony which was undented and could not be disbelieved only because A

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Ahe did not come out of the house out of fear. A finding was thus reachedthat the appellant accompanied the accused persons in chasing the victimand it was the appellant who assisted other members of unlawful assemblyto locate the victim in the house of Sohrab. On this basis a commonintention was found of seeking to kill the victim especially when theaccused persons, being armed with deadly weapons, chased the victimBwith the war cry “catch and kill Wahab” and the appellant alsoaccompanied them and actively participated and guided others to locatethe victim.

8. It was the submission of the learned counsel for the appellantthat the testimony of PW-8 had not been read correctly. Learned counselCinvited our attention to the cross-examination of PW-8 wherein he statedthat he did not see who had killed the victim, tied him and carried himaway. He stated that “...later on I heard about it. Today I have statedwhatever I had heard.” He further went on to state “I have mentionedthe names of the (accused) persons after hearing them from other people.”D

9. The aforesaid testimony leaves us in no manner of doubt thatPW-8 was not a witness who had seen the incident but he believed whatothers said and narrated the same. Thus, the reliance placed in theimpugned judgment on the testimony of PW-8 to rope in the appellantunder Section 149 of the IPC cannot be sustained. This is more so asEPW-7 is also a hostile witness.

10. In our view, learned counsel for the appellant rightly contendedthat the mere fact that the appellant was not brave enough to concealwhere the victim was hiding did not make him a part of the unlawfulassembly.F

11. Learned counsel for the appellant sought to rely upon thejudgment of this Court in Subal Ghorai v. State of West Bengal[1], morespecifically paras 42 and 53 to canvas that constructive liability cannotbe stretched to lead to the false implication of innocent bystanders. ThisCourt considered the possibility of often people gathering at the scene ofGoffence out of curiosity but that did not make them share the commonobject of the assembly. The Court must guard against the possibility ofconvicting mere passive onlookers who did not share the common objectof the unlawful assembly. There must be reasonable direct or indirectcircumstances which lend assurance to the prosecution case that they shared common object of the unlawful assembly. Not only should themembers be part of the unlawful assembly but should share the commonobject at all stages. This has to be based on the conduct of the membersand the behaviour at or near the scene of the offence, the motive for thecrime, the arms carried by them and such other relevant considerations.Once we examine the factual matrix of the case at hand, the presenceof the appellant is explained at the early hours in the morning because ofhis house being almost adjacent to where the deceased was hiding. Hecertainly did not come along with the mob. That does not preclude himfrom being part of the mob or acquiring the common intention at thatstage, but then that is not what happened. He was carrying no weaponand he did not assault anybody. The finding of his accompanying themob is not sustainable on the basis of the evidence discussed above.The only evidence of his involvement is that he pointed to the housewhere the victim was hiding. Given that a murderous mob fully armedwas hunting for him, the appellant at best can be said not to be braveenough to conceal the deceased or even to have not pointed out wherehe was, but that by itself cannot rope in the appellant under Section 149of the IPC.

12. Learned counsel for the appellant also referred to the judgmentof 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 villagecommunity having a tendency to implicate innocents along with the guiltyespecially when a large number of assailants are involved in commissionof the offence – which is a matter of common knowledge. Thedepositions have to be carefully scrutinised in such a scenario.

13. Learned counsel also referred to the judgment in C. Mageshand Ors. v. State of Karnataka[3] especially paras 45 and 46 to emphasisethe importance of evidence being evaluated on the touchstone ofconsistency. The eye-witness require a careful assessment and theirtestimony must be evaluated for its credibility.

14. On the touchstone of the aforesaid judgments, taking intoconsideration the inconsistency in the testimonies – inasmuch as thefamily members never even pointed a finger at the appellant as alsosome of the other witnesses, while the witnesses who did point a fingeronly assigned the role of pointing out the place where the victim was2 (2013) 16 SCC 7523 (2010) 5 SCC 645

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Ahiding, coupled with his natural presence at site, we cannot, thus, saythat by any stretch of imagination the case against the appellant hasbeen proved beyond reasonable doubt or for that matter really no caseseems to have been proved against the appellant given the role assignedto him in the testimony of the witnesses. In our view the appellant isentitled 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 owncosts.

16. The appellant be released forthwith, if not required in anyCother case.

Divya Pandey

Appeal allowed.

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