Common intention enough to convict in absence of direct evidence – SC

Judge North Lakhimpur has been affirmed by the High and a default stipulation. Thus the present appeal by the The prosecution alleged that the two deceased Abdul Motin and Abdul Barek were assaulted on 05.08.2005 at Abdul Motin died in the hospital during the course of Shri Gaurav Agrawal learned counsel for the acquitted giving them the benefit of doubt on basis of the and they too are entitled to acquittal on benefit of doubt witnesses P.Ws. 5 6 7 and 9. The occurrence had taken place after darkness had engulfed making identification doubtful relying on the cross examination of P.W.6. P.W.1 any manner or that he also assaulted any one of the two deceased. Thus there is no material to infer common upon the two deceased. The recoveries attributed to the Learned counsel for the State submitted that the eye witnesses P.Ws. 5 6 7 and 9 are consistent with regard to the participation of the appellants in the assault. The lay in wait for the two deceased who were accosted while 5. We have considered the submissions on behalf of the accompanied by P.Ws. 5 6 7 and 9. They were intercepted by the appellants after which the assault followed. Abdul Barek died on the spot. The post mortem report of the above left ankle joint. The wound of the seen in the both bone of the leg. The muscles major blood vessels were also limbs. The body was very pale multiple sharp cuts in 6th lower limbs. The left foot separate from the upper leg and was not found with body at the time of my post 1. Sharp cut in the lower limbs left leg at about 1” above the ankle joint causing Both leg bones skin soft tissues and vessels were cut through causing extensive 8 haemorrhages skin margins. All wounds anterior part at the junction of upper and middle thread. It was obliquely placed and 3. Another sharp cut in middle thread of medial part outer skin caused cut and fracture of right tibia causing sufficient ankle causing sharp cut obliquely down. It was also about 3½” in size causing about 2 3rd separation of ankle of the right foot muscles and vessels and upper part of calcaneus bone was cut through causing Station at 09.00 PM on 05.08.2005 on oral information by P.W.1 who was the Gaonburah that some unknown persons had assaulted the two deceased one of whom died on the Charges were framed against the five accused under Sections 147 341 and 302 IPC. The charge under Section 341 IPC was held not to have been proved against the based on the evidence of P.W.1 and P.W.5 giving them the benefit of doubt with regard to their presence and of the case despite the deposition of the eye witnesses can be of no avail to the appellants in view of the consistent nature of the evidence available against them. Minor vs. State of Punjab 1954 SCR 904 it was held as follows:­ “8. …But if the facts to be proved and the Section 149 must be held to be a formal the prosecution is considered irrelevant in view of the 10. P.W. 5 was an eye witness accompanying the two time of occurrence for identification. In his cross on the leg with a sharp cutting weapon. The second appellant no.3 but was chased by the accused and caught near the house of Mamud Ali at which point of time the 11. Similarly P.W.6 7 and 9 deposed that appellant no.1 stopped the deceased appellant no 2 assaulted deceased Abdul Barek with a ‘Dao’ who died on the spot. Appellant no.3 assaulted Abdul Motin and injured him. The injured the spot where Abdul Barek was lying. The injured was taken to the hospital and died the same night. The the consistent evidence of P.Ws. 5 7 and 9 that it was in the dusk possible. In any event it is apparent that the them acquittal on any benefit of doubt or parity with the acquitted accused merely because no appeal has been Agrawal that appellant no.1 is entitled to acquittal as he cannot be said to have shared any common intention with shared the common intention. The presence of the mental element or the intention to commit the act if cogently established is sufficient for conviction without actual before a person is convicted on the ground of common plan and acting in concert pursuant to the plan common number of persons deducible from the facts and circumstances of a particular case. The coming together of may be armed the manner of assault the active or passive role played by the accused are but only some of the materials SCC 779 in order to establish common intention it was “12…. The acts committed by different confederates in the criminal action may be participate and engage in the criminal enterprise for instance one may only stand guard to prevent any person coming to the coparticipants actually committing the planned crime. In the case of an offence involving physical violence however it is essential for the application of Section 34 that the person who instigates or aids the present at the actual commission of the crime for the purpose of facilitating or promoting the offence the commission of which is the aim of the joint criminal way or the other facilitate the execution of the common design is itself tantamount to essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby In Nandu Rastogi vs. State of Bihar 8 SCC 9 them stood guard and prevented the prosecution witnesses from intervening is shown that they shared a common intention to commit the offence and in furtherance thereof each one played his act of assault was not a necessary ingredient to establish “11. Under Section 34 a person must be physically present at the actual facilitating or promoting the offence the criminal venture. Such presence of those execution of the common design is itself tantamount to actual participation in the simultaneous consensus of the minds of to bring about a particular result. Such consensus can be developed at the spot 18. Coming to the facts of the present case the appellant deceased had halted. That there was some dispute with regard to money is apparent from the evidence of the witnesses. Abdul Barek died on the spot as a result of the upon him by appellant no.3 after which he tried to flee Appellant no 1 along with the other accused chased him accused persons to the place where Abdul Barek lay commit the offence in question. We therefore find no reason no role or act of assault attributed to him denying the 19. Resultantly we find no reason to interfere with the conviction and sentence of the appellants. The appeal is

Summary: In the case of Subed Ali And Others Vs The State of Assam [Criminal Appeal NO 1401 of 2012] Supreme Court held that it is not necessary that before a person is convicted on the ground of common intention, he must be actively involved in the physical activity of assault. The accused were charged under Section 34 and 302 of Indian Penal Code, 1860. There were total 5 accused out of which 2 were acquitted on benefit of doubt. The remaining accused were awarded a sentence of life imprisonment along with fine by the sessions court which was further upheld by the High Court. The present appeal has been filed by the accused praying for acquittal contending that the facts were same for acquitted persons and thus they are also liable to have the benefit of doubt. The Respondent- state contended that the findings of the lower courts were correct and that the accused had assaulted the two deceased, one of them died on spot and the other succumbed to his injuries while admitted in the hospital. There were eye-witnesses who have identified the Appellant no 1,2 and 3. The second deceased was injured and tried to flee from the spot but he was chased down by appellant no 3. The incident had taken place after sunset and it was not dark. The Appellant and the witness already knew each other hence, it was not difficult to identify the Appellants. The Appellant contended that appellant no.1 is entitled to acquittal as he cannot be said to have shared any common intention with appellants nos.2 and 3 and who are liable for their individual acts. The credibility of the witnesses was also questioned as it was dark and difficult to see when the incident took place. The Appellant prayed for acquittal of the charge under Section 34 as there was no direct evidence to the assault done by Appellant no 1. The court observed that Common intention consists of several persons acting in unison to achieve a common purpose, though their roles may be different. The role may be active or passive is irrelevant, once common intention is established. The Appellants had waited for the deceased to return from market and had made the deceased halt and then assault was committed as a consequence of an argument. The presence of the mental element   or   the   intention   to   commit   the   act   if   cogently established   is   sufficient   for   conviction, without   actual participation in the assault. The court referred the case of Surender Chauhan vs. State of Madhya Pradesh, (2000) 4 SCC 110, where it was noticed that absence of a positive act of assault was not a necessary ingredient to establish common intention observing :­ ‘Under Section 34 a person must be physically present   at   the   actual commission of the crime for the purpose of facilitating   or   promoting   the   offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them.’ Therefore, the Court rejected the plea for pardon and held that there is no need to interfere in the conviction by the court.