Section 149 IPC -Merely Because A Person Disclosed Victim's Hideout, He Can't Be Held To Part Of Unlawful Assembly : Supreme Court

Setting aside the conviction of a person in a murder case, the Supreme Court recently held that merely because a person revealed the hideout of the victim to the murderous mob, he cannot be presumed to share the common object of the unlawful assembly.

A bench comprising Justices Sanjay Kishan Kaul and MM Sundresh struck a word of caution by observing that the Courts must guard against the tendency of convicting mere passive onlookers of the crime using the medium of Section 149 of the Indian Penal Code for sharing the common object of the unlawful assembly.

In this case(Taijuddin versus State of Assam), the appellant was one among the 32 persons who were sentenced to life imprisonment for the offences under  Sections 147/148/324/302/201 read with Section 149 of the IPC for the murder of one person.

The role attributed to the appellant was that he informed the murderous gang about the location of the victim. The trial court sentenced him for murder, holding that he shared the common objective of the unlawful assembly, and this was upheld by the division bench of the Gauhati High Court as well.

The Supreme Court took a different view of the matter. The Court noted that the house of the appellant was adjacent to that of the place where the victim was staying. So, the presence of the appellant at the spot was explainable. The Court also took into account the fact that the gang was armed with deadly weapons. So, the appellant may not have been brave enough to conceal the location of the victim.

"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", the Court observed in the judgment.

Referring to the judgment of the Supreme Court in Subal Ghorai v. State of West Bengal, it was observed that constructive liability cannot be stretched to lead to the false implication of innocent bystanders.

The Court observed :

"The Court must guard against the possibility of convicting mere passive onlookers who did 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".

Considering the facts of the present case, the Court noted that appellant did not come along with the mob. He was not carrying any weapons.

"The only evidence of his involvement is that he pointed to the house where the victim was hiding. 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", the Court observed.

The Supreme Court therefore set aside his conviction and held that he was entitled to a clean acquittal.

Case Title : Taijuddin versus State of Assam

Citation : LL 2021 SC 702

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