The Division Bench of the Supreme Court consisting of Justices Sanjay Kishan Kaul and M.M. Sundresh held that 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 must 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.
Facts
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 failed 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. A case 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.
Procedural History
Charges were framed against the accused under Sections 147/148/324/302/201 read with Section 149 of the IPC, wherein all the accused pleaded not guilty. The learned Sessions Judge convicted all the 32 accused and sentenced them to life imprisonment. The convicted persons preferred appeals, during the pendency of which four accused passed away. A Division bench of the Gauhati High Court decided the appeals by convicting some of them while giving benefit of doubt to others. The unsuccessful appellants preferred appeals before this Court and their SLPs were dismissed. The only exception was this 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
Contentions made
It was contended on behalf of the appellant that some of the prosecution witnesses (hereafter referred to as PW) did not mention the appellant at all. The role of pointing out the location of the deceased alone was attributed to the appellant. A perusal of the informant’s testimony showed that he stated “Taijuddin showed that my father Abdul Wahab was inside the house of Sorab.” Nothing more was stated qua the appellant. When of the PW 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. It is only thereafter that the accused persons surrounded the house and mounted an assault, causing the death.
Emphasis was laid on Subal Ghorai v. State of West Bengal, Ranjit Singh v. State of Punjab and Ors. and C. Magesh and Ors. v. State of Karnataka to canvas the importance of evidence being evaluated on the touchstone of consistency and that constructive liability cannot be stretched to lead to the false implication of innocent bystanders.
Observations of the Court
The Court observed that 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. They observed that:
“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, 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..”
Judgment
The conviction under Sections 147/148/302/201/149 was set aside and the appeal was accordingly allowed. The appellant was ordered to be released forthwith, if not required in any other case.
Case Name: Taijuddin vs State of Assam & Ors.
Citation: CRIMINAL APPEAL NO. 1526 OF 2021
Bench: Justice Sanjay Kishan Kaul, Justice M.M. Sundresh
Decided on: 1st December 2021
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