Common Intention is a species of constructive liability and the same shall not be confused with Similar Intention: Calcutta HC

Common Intention is a species of constructive liability and the same shall not be confused with Similar Intention: Calcutta HC

Harshit Sharma | Amity Law School, Madhya Pradesh | 31st December 2019

Jagan Gope & Ors. V/s. State of West Bengal CRA 389/2012

FACTS OF THE CASE

  1. The instant appeal before the High Court was filed against the impugned order of the Sessions Court dated 10.05.2012 & 11.05.2012 which has convicted the appellants for rigorous imprisonment for Life and ₹5,000 each as fine.
  2. Prosecution case, as alleged, against the appellants is that on 12.7.98 at 10.00 P.M., there was a dispute over catching of fish between Abodh Saran Gope, the deceased on the one hand and Ashadhan Gope, Bhadru Gope and Sasthi Gope on the other hand. The miscreants were chased away. Tulshi Gope, father of Bhadru and Sasthi threatened Abodh that he has become a rich person and should be taught a lesson.
  3. On 13.7.98, Abodh Gope, who was the Headmaster of Sirkadih Primary School, had gone to the school to discharge his duties. Around 1.00 P.M., the appellants being variously armed assaulted Abodh in the school resulting in his death.
  4. The incident was witnessed by P.W.6, Mathur Gope who reported the matter to Nilmohan Gope, P.W.3, brother of the deceased. Nilmohan Gope intimated Monoj Kumar Gope, P.W.1, son of the deceased who along with his uncle went to the spot and found his father dead.
  5. On the way to the police station, they were threatened by Sasthi Gope and Ashadhan Gope. Written complaint was lodged at Baghmundi Police Station resulting in registration of Baghmundi P.S. Case No.32 of 1998 dated 13.7.1998 under Sections 302/109/34 of the Indian Penal Code.
  6. The charge-sheet was filed before the Ld. Additional Sessions Judge, who on the basis of the evidence convicted the 6 accused in the instant matter.

ISSUES RAISED

  1. What constitute ‘Common Intention’ and whether the present case fulfils its essentials?
  2. Whether the charge levied u/s. 302/34 is proved against the Sasthi Gope & Ashadhan Gope?

RULING OF THE COURT/ THE COURT HELD THAT

The Hon’ble High Court of Calcutta upheld the conviction and sentence of the Jagan Gope, Bhadru Gope, Jishu Gope and Ajit Gope, whereas the conviction & sentence of Sasthi Gope and Ashadhan Gope were set aside, opining the following observations:

  1. “Common intention under Section 34 of the Indian Penal Code is a species of constructive liability which renders every member of a group who shares such intention responsible for the criminal act committed by anyone of them when such act is done in furtherance of the common intention. Common intention, however, cannot be confused with similar intention. Although accused persons may have similar intention to commit a crime, say murder, until and unless the pre-requisites of : (a) pre-consent, (b) presence and (c) participation in respect of each accused are established, it cannot be said that they shared common intention and be culpable for the crime committed by any of them in furtherance to such intention.
  2. Although there is some evidence that Sasthi and Ashadhan had enmity with the deceased and may have tried to obstruct P.W. 1 and 3 from going to the police station, there is no evidence on record that they were present at the place of occurrence and participated in the assault and murder of the victim with Jagan, Bhadru, Jishu and Ajit.
  3. I am not willing to give much credence to these pieces of evidence to come to a conclusion with regard to presence and participation of Ashadhan and Sasthi in the crime. Enmity is a double-edged sword. While it gives justification to commit the crime, it is also a vital motivation for interested witnesses to falsely implicate innocent persons in the crime. Although the principle “falsus in uno, falsus in omnibus” is inapplicable in Indian jurisprudence, evidence of interested witnesses requires to be subjected to stricter scrutiny so that their overzealous versions do not rope in innocent persons along with the real offenders.
  4. Although, I am convinced with regard to the roles of Jagan, Bhadru, Jishu and Ajit in the murder of the deceased, I am inclined to extend the benefit of doubt to Sasthi and Ashadhan.”
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Hshits1997

Harshit Sharma Advocate is a practising lawyer at the High Court of Madhya Pradesh, Bench at Gwalior. He started his litigation practice before the Hon’ble High Court of Madhya Pradesh since August, 2020 after being enrolled with the State Bar Council of Madhya Pradesh at enrolment number MP/1228/2020. Mr. Sharma hails from a generous and morally-valued driven family. He is the second-generation lawyer in his family who has taken up the task of stepping on the foot-steps of his father and the leading criminal advocate of the Gwalior Bar Sh. Vijay Dutt Sharma, Advocate. He always valued to strike a balance between education and moral-values which he quotes to have been a reflection of his mother Smt. Kusum Sharma and possibly this magical combination of the intellectual father and caring mother sailed him through to take the beautiful and successful academic leap, in both school as well as University. To quote the glorious academic years of Mr. Sharma, it all started with he been awarded with the Soli Sorabjee Award, which is bestowed upon the Legal Studies Topper of Class-XI (CBSE) of Gwalior Glory High School, Gwalior (M.P.). Since then, it has been the blessings of his parents, sister, teachers and family members that he completed his five-year integrated law course in B.A., LL.B. (Hons.) from Amity Law School, Amity University Madhya Pradesh, Gwalior with flying colours and been the over-all topper of the course since its inception to its culmination. Mr. Sharma also had in his names to attend various national and international seminars on growing issues in the field of law and throughout his college life, he has been an active member of the Moot Court Committee and in the culminating years of his college life, he has also served as the Chairperson of the Moot Court Committee of Amity Law School, Amity University Madhya Pradesh. His experience owed from his association with top-notched institutions of the country and law offices, including National Human Rights Commission, National Judicial Academy Bhopal, Chambers of Sh. Sanjay Gupta Ji Advocate (Gwalior, M.P.), Sh. Deepak Vasant Rao Khot Ji Advocate (Gwalior, M.P.), Sh. Fuzail Ahmad Ayyubi Ji Advocate (A-O-R Supreme Court of India), Sh. Vaibhav Shrivastava Ji (Office of Sh. Vivek Tankha Ji Senior Advocate), Sh. Prashant Vaxish Advocate (Supreme Court of India) to name a few. Apart from being an avid learner and through-out student of Law, Mr. Sharma has under his name various research papers and articles published in National as well as International Journals and UGC-Approved Journals, pan India. More so, he is a constant content writer for various online blogs including the LatestLaws.com, Lawyers Club India, Legal Services India, Advocates Pedia Foundation, etc. In addition to his academic excellence, he is green-belt holder in karate and has been a district-level Judo and Table-Tennis Player for his School Team. He is fond of reading books and to pen poetries in both, English as well as Hindi language is his best hobby to spare time with.

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Hshits1997

Harshit Sharma Advocate is a practising lawyer at the High Court of Madhya Pradesh, Bench at Gwalior. He started his litigation practice before the Hon’ble High Court of Madhya Pradesh since August, 2020 after being enrolled with the State Bar Council of Madhya Pradesh at enrolment number MP/1228/2020.
Mr. Sharma hails from a generous and morally-valued driven family. He is the second-generation lawyer in his family who has taken up the task of stepping on the foot-steps of his father and the leading criminal advocate of the Gwalior Bar Sh. Vijay Dutt Sharma, Advocate.
He always valued to strike a balance between education and moral-values which he quotes to have been a reflection of his mother Smt. Kusum Sharma and possibly this magical combination of the intellectual father and caring mother sailed him through to take the beautiful and successful academic leap, in both school as well as University.
To quote the glorious academic years of Mr. Sharma, it all started with he been awarded with the Soli Sorabjee Award, which is bestowed upon the Legal Studies Topper of Class-XI (CBSE) of Gwalior Glory High School, Gwalior (M.P.).
Since then, it has been the blessings of his parents, sister, teachers and family members that he completed his five-year integrated law course in B.A., LL.B. (Hons.) from Amity Law School, Amity University Madhya Pradesh, Gwalior with flying colours and been the over-all topper of the course since its inception to its culmination.
Mr. Sharma also had in his names to attend various national and international seminars on growing issues in the field of law and throughout his college life, he has been an active member of the Moot Court Committee and in the culminating years of his college life, he has also served as the Chairperson of the Moot Court Committee of Amity Law School, Amity University Madhya Pradesh.
His experience owed from his association with top-notched institutions of the country and law offices, including National Human Rights Commission, National Judicial Academy Bhopal, Chambers of Sh. Sanjay Gupta Ji Advocate (Gwalior, M.P.), Sh. Deepak Vasant Rao Khot Ji Advocate (Gwalior, M.P.), Sh. Fuzail Ahmad Ayyubi Ji Advocate (A-O-R Supreme Court of India), Sh. Vaibhav Shrivastava Ji (Office of Sh. Vivek Tankha Ji Senior Advocate), Sh. Prashant Vaxish Advocate (Supreme Court of India) to name a few.
Apart from being an avid learner and through-out student of Law, Mr. Sharma has under his name various research papers and articles published in National as well as International Journals and UGC-Approved Journals, pan India. More so, he is a constant content writer for various online blogs including the LatestLaws.com, Lawyers Club India, Legal Services India, Advocates Pedia Foundation, etc.
In addition to his academic excellence, he is green-belt holder in karate and has been a district-level Judo and Table-Tennis Player for his School Team.
He is fond of reading books and to pen poetries in both, English as well as Hindi language is his best hobby to spare time with.

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