IMPORTANT POINT
When sequence of events, and the manner in which the occurrence took place, manifests a pre-concerted plan and a prior meeting of minds; overt act or possession of weapon is not required to establish common intention.

JUDGMENT :

Navin Sinha, J.

Leave granted.

2. The conviction of respondent no.2, under Section 302/34 IPC, by the Sessions Judge, Sagar, in Sessions Trial No. 369 of 1997, has been reversed by the High Court in appeal, acquitting him. The appellant, brother of the deceased, assails the acquittal.

3. Lokman Khatik, accused no.3, was peeved with the meeting being held for his removal from the post of Mayor. The deceased was the President of the Congress Sewa Dal, spearheading the campaign.

The trial court from the evidence arrived at the finding that all the four accused came together to the place of occurrence in a white ambassador car. Accused no.3 identified the deceased to Jitendra @ Jittu, accused no.2. Thereafter, respondent no.2 accompanied by the latter and accused no.4, Bhupendra, proceeded towards the deceased. Accused no.2 took out a revolver from his waist and fired at the deceased while the other two accused provided cover. All the four accused then left the place of occurrence in the ambassador car. The deceased died on the way to the hospital. The plea of alibi by respondent no.2 was disbelieved.

4. Accused no.2 was convicted under Section 302, IPC to Life imprisonment and rigorous imprisonment for one year under Section 25(1)(a) of the Arms Act. He is stated to have served out his sentence. Respondent no.2 and the other accused were convicted to Life imprisonment under Section 302/34 IPC.

5. The High Court, in the appeal preferred by respondent no.2, acquitted him, on the reasoning that no overt act of assault was attributed to him, neither was he armed, much less gave any exhortation. His mere presence was not sufficient to sustain the conviction, attributing common intention. It was further reasoned that respondent no. 2 may have had no knowledge that accused no.2 was carrying a revolver.

6. The submission on behalf of the appellant was that the High Court has grossly erred in acquitting respondent no.2. There existed sufficient evidence to decipher common intention. Overt act by a co-accused or possession of weapons by him was not necessary to conclude the existence of common intention. There has been inadequate appreciation of evidence to erroneously conclude lack of common intention. A well reasoned order of the Trial Court has erroneously been set aside on a presumptive reasoning based on conjectures and surmises beyond the defence of respondent no.2 himself, that he may have been unaware of the fact that the co-accused was possessed of a revolver. It has resulted in grave miscarriage of justice, warranting interference by this Court.

7. Learned counsel for respondent no. 2 submitted that his mere presence at the place of occurrence along with other co-accused was not sufficient to infer common intention. The fact that they may have come together to the place of occurrence was also not sufficient. There is no positive evidence that they all left together after the assault in the same car. No overt act had been attributed to him and neither was he possessed of any weapon. The High Court has held that he was not aware of the fact that the co-accused was carrying a revolver. There was inadequate evidence that he had moved forward with co-accused towards the deceased after which the assault took place.

8. We have considered the respective submissions, and the materials on record. The order of acquittal, in the facts and circumstances of the case, is unsustainable, and deserves to be set aside for reasons discussed hereinafter.

9. Respondent no.2 was the nephew of accused no.3. The meeting had been called to protest for removal of accused no.3 from the post of Mayor on allegations of corruption, with the slogan “Lokman Hatao Congress Bachaao”. The deceased was the President of the Congress Sewa Dal. Apparently the accused were peeved with the summoning of the meeting. The evidence of PWs 1, 4, 5, 13 and 23 are consistent that the four accused came together and alighted from a white Ambassador Car. Accused no.3 identified th