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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. 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 behavior at or near the scene of the offence, the motive for the crime, the arms carried by them and such other relevant considerations. The same was observed by Hon’ble, Mukeshkumar Rasikbhai Shah J in the matter of Taijuddin vs. State of Assam & Ors. – [Criminal Appeal No. 1526 of 2021].

In this case, a land dispute had caused the loss of life of Abdul Wahab (‘the victim’). A house was being constructed on land stated to be of the victim, when the accused persons came in a mob towards the house of the victim armed with lathis, spears, etc. The victim tried to escape by taking shelter but did not succeed as the house was surrounded, its walls were broken and a mounted assault was 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 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 the IPC and all the accused pleaded not guilty. The learned Sessions Judge convicted all the accused and sentenced them to life imprisonment. The convicted persons preferred appeals. A Division bench of the Gauhati High Court decided the appeals 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 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.

The learned Counsel appearing on behalf of 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 the family of the victim did not mention the appellant at all. The informant, attributed to the appellant the role of pointing out the location of the deceased. Nothing more is stated qua the appellant. counsel for the appellant referred to a sketch map of the site, placed on record to submit that house “F” belonged 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. In our view, learned counsel for the appellant rightly contended that 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. 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 IPC.

Supreme court after perusing the facts and arguments presented, held that – “. 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 assembly. 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. The conviction is set aside. The appeal is accordingly allowed leaving the parties to bear their own costs”

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Judgement reviewed by Mehvish Alam