Court must guard against convicting passive onlookers sans common object of unlawful assembly: Supreme Court

  • Aishwarya Iyer
  • 12:58 PM, 04 Dec 2021

While persons who shouted in unison, “Catch & Kill Wahab” were sentenced to life imprisonment, Court found that one, Taijuddin only pointed to the victims house & was not part of the mob & that the Court incorrectly convicted him as part of the mob.

The Supreme Court on Wednesday held that a Court must guard against the possibility of convicting mere passive onlookers who do 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", held the top court.

With this view, a bench of Justices Sanjay Kishan Kaul and MM Sundresh set aside the conviction of one Taijuddin under Section 147, 148, 302, 201 and 149 of the Indian Penal Code.

A land dispute caused the loss of life of Abdul Wahab, the victim. The Sessions Judge convicted all the 32 accused and sentenced them to life imprisonment. After the appeals were dismissed by the Gauhati High Court, the unsuccessful appellants approached the Supreme Court and their SLPs were dismissed in 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.

Referring to para 33 of the impugned judgment of the High Court, a prosecution witness's statement, was considered by court wherein it was stated that when the accused persons moved forward and were about to cross the house of Shorab (where the victim was hiding), 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, noted the bench.

"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", noted the Bench.

The Court agreed with the appellants contention 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.

It was further found that the presence of the appellant at the early hours in the morning was explainable 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."

Thus, while giving a clean acquittal to Taijuddin, the Court remarked, "....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".