Conviction on the ground of common intention does not necessarily require involvement in the physical act

Conviction on the ground of common intention does not necessarily require involvement in the physical act of assaulting the individual written by Isha Sawant student of Government Law College 

Subed Ali v. State of Assam

Facts:

The appellants aggrieved by the decision of the Trial Court convicting them for offences u/s- 302/34 of the Indian Penal Code, and sentencing them to life imprisonment approached the Supreme court. The two deceased- Abdul Motin and Abdul Bareek, on 5-08-2005 were returning from the market on their bicycles along with PW5, PW6, PW7 and PW9, when at around 6 p.m. they were stopped by the accused/appellants and assaulted. Abdul Bareek died on the spot while Abdul Motin was injured and taken to a hospital where he died on the same night. Originally five accused were named, however, two co-accused were acquitted by the Trial Court by giving them the benefit of the doubt, there was no appeal preferred against their acquittal. PW1 informed the North Lakhimpur Police Station and give oral evidence on which a GD entry was made stating that some unknown person has assaulted the two individuals leading to their death. The brother of the deceased lodged a formal FIR on 6-08-2005 at 3:15 p.m., naming five accused which included the appellants. The Trial Court convicted the accused/appellants which is why they have approached the Supreme Court raising a plea for acquittal.

Issues:

• Whether the appellants nos.2 and 3 are entitled to the same benefit of doubt given to acquit the other two co-accused.
• Whether appellant no.1 had common intention with appellants no. 2 and 3 to assault the two deceased.

Legal Provisions:

• 302- Punishment for murder.
• Indian Penal Code, 1860, Section 34- Acts done by several persons in furtherance of common intention

Appellant’s contention:

The counsel for the appellants submitted that their conviction is unjustified and they should also get the benefit of the doubt on the basis of same evidence which acquitted two of the accused, they stated inconsistencies in evidence of the eyewitnesses and the fact that the incident took place after dark making identification doubtful, relying on cross examination of PW 6. PW1 deposed that he was informed by Babulal and Asgar Ali that the appellants were assailants, but the prosecution did not examine them. They further stated that the eyewitnesses gave evidence of assault inflicted upon the two decease by appellants 2 and 3 only, there was no allegation on appellant no.1 for carrying a weapon or assaulting any other two deceased, so there is no material to show common intention on part of appellant no.1.  Appellants no. 2 and 3 were said to be individually liable for their respective assault upon the decease, they further submit that no charge was framed u/s- 34 IPC.

Respondent’s contention:

The Council for the state submitted that the evidence given by PW’s- 5,6,7 and 9 was consistent regarding the appellants participation in the assault. They stated that considering the nature of evidence available against the appellants nos. 2 and 3, they cannot avail the benefit of doubt given to the other co-accused. They further submitted that common intention was established from the fact that the appellants were armed while they waited for the two deceased to return from the market, then assaulted them which led to their death.

Observations of the court:

The court went through the submissions of both parties as well as the post mortem report of the deceased. A formal FIR was filed 6-08-2005, charges were filed against the five accused u/s- 147, 341 and 302 of the IPC, charge u/s- 34 was not proved against the accused. The Trial Court based on the evidence of PW1 acquitted two co-accused giving them the benefit of doubt regarding their presence and participation. Since the number of accused fell under five, the appellants were convicted u/s- 302/34 of the IPC. The court held that their acquittal can be of no avail to the appellants due to the consistent nature of evidence available against them. The court observed that minor contradiction in the evidence of the witnesses to be inconsequential, as their statements regarding material aspects were consistent lending credibility to their evidence as eye-witnesses.

The court noted that PW1 was not an eyewitness and the prosecution not examining Babulal and Asgar Ali is irrelevant as regards evidence of Investigation Officer during cross-examination, who stated that PW1 did not make any such statement. PW5 was an eyewitness, he deposed that appellant no.1 stopped the two deceased, after which appellant no.2 assaulted Abdul Bareek on his leg with a sharp cutting tool, Abdul Motin tried to flee after being injured by appellant no.3 but was chased by appellant no.1 and other accused near Mamud Ali’s house, at which point PW5 ran away fearing for his own safety. PW’s 6, 7 and 9 gave similar evidence, however, PW6’s evidence regarding darkness affecting identification was held inconsequential as the consistent evidence given by PW’s 5, 7 and 9 stated that it was evening after sunset but not dark, making identification possible. It was apparent that the parties knew each other from before, and so identification was not to be doubted.

The court therefore, found no reason to doubt the presence of and assault by the appellants no. 2 and 3 on the two deceased, to grant them any benefit of doubt on parity with the acquitted co-accused. The court considered the submission that appellant no.1 should be entitled to acquittal, as he cannot be said to have common intention with appellant nos. 2 and 3, who are liable for individual acts. Common intention is several persons acting in furtherance of a common purpose, though their roles may be different, their roles being active or passive is irrelevant. Once common intention is established, there is rarely direct evidence for the same, it has to be inferred from facts and circumstances of the case and based on evaluation of evidence available against accused. Conviction on the ground of common intention is based on the foundation of the principle of vicarious responsibility, by which a person is answerable for the acts of others with whom he shares common intention.

The presence of mental element or intention to commit the act if properly established, is sufficient to convict an accused without his actual participation in the assault. Thus, it is not necessary, that a person convicted on the ground of common intention was actively involved in the physical activity of assault, so if the evidence shows a pre-arranged plan, and acts pursuant to the plan, common intention can be inferred. Hence, the court observed that appellant no.1 waited with the other armed appellants, he stopped the two deceased, who were then assaulted. When an injured Abdul Motin tried to flee, appellant no.1 chased him with the other appellants near Mamud Ali’s house, where he was brutally assaulted and dragged back to the place where Abdul Bareek laid motionless. The court said that they did not require any further evidence regarding common intention in appellant no.1 to commit the offence in question. They found no reason to grant him benefit of doubt on the plea that he had no role or act of assault attributed to him, denying the existence of common intention for that reason.

Judgment:

The court found more reason to do clear with the conviction and sentence of the opinions that appeal was dismissed.