IMPORTANT POINT
Court must guard against possibility of convicting mere passive onlookers who did not share common object of unlawful assembly – There must be reasonable direct or indirect circumstances which lend assurance to prosecution case that they shared common object of unlawful assembly.

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 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.

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 PW15, 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