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SUPREME COURT OF INDIA
R.F. Nariman, Navin Sinha, Indira Banerjee, JJ.
SUBED ALI AND OTHERS – APPELLANT(S)
Versus
THE STATE OF ASSAM – RESPONDENT(S)
Criminal Appeal No. 1401 of 2012
Decided on : 30-09-2020
(A) Indian Penal Code, 1860 – Sections 302/34 – Twin murder – Common intention – Life sentence – Acquittal of two co-accused in facts of the case, despite deposition of eye witnesses, can be of no avail to appellants in view of consistent nature of evidence available against them – Minor inconsistencies and contradictions in evidence of eye witnesses are considered inconsequential – Their evidence on all material aspects are consistent lending credibility to their eye witness account – No infirmity in conviction of appellants with aid of Section 34 – Parties were known to each other from before and identification in dusk cannot be doubted – No reason to doubt presence and assault on two deceased by appellant nos.2 & 3 to grant them acquittal on any benefit of doubt or parity with acquitted accused, merely because no appeal has been preferred – Appellant no.1 lay in wait along with other two appellants who were armed – Appellant no.1 stopped two deceased who were returning from market – Assault commenced after deceased had halted – No further evidence is required with regard to existence of common intention in appellant no.1 to commit offence in question – No reason to grant any benefit to appellant no.1 on the plea that there is no role or act of assault attributed to him, denying existence of any common intention for that reason – No reason to interfere with conviction and sentence of appellants – Appeal dismissed. (Paras 8, 11, 12, 18 and 19)
(B) Indian Penal Code, 1860 – Section 34 – Common intention – Ingredients – Common intention consists of several persons acting in unison to achieve a common purpose, though their roles may be different – Role may be active or passive is irrelevant, once common intention is established – There can hardly be any direct evidence of common intention – It is more a matter of inference to be drawn from facts and circumstances of a case based on cumulative assessment of nature of evidence available against participants – Foundation for conviction on the basis of common intention is based on principle of vicarious responsibility by which a person is held to be answerable for acts of others with whom he shared common intention – Presence of mental element or intention to commit act if cogently established is sufficient for conviction, without actual participation in assault – It is not necessary that before a person is convicted on the ground of common intention, he must be actively involved in physical activity of assault – If nature of evidence displays a prearranged plan and acting in concert pursuant to plan, common intention can be inferred – A common intention to bring about a particular result may also develop on spot as between a number of persons deducible from facts and circumstances of a particular case – Coming together of accused to place of occurrence, some or all of whom may be armed, manner of assault, active or passive role played by accused, are but only some of materials for drawing inferences. (Para 13)
Facts of the case:
Conviction of the appellants under Section 302/34 of the Indian Penal Code by the Sessions Judge, North Lakhimpur, has been affirmed by the High Court, sentencing them to life imprisonment along with fine and a default stipulation. Thus, present appeal by appellants.
Findings of Court:
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. There can hardly be any direct evidence of common intention. It is more a matter of inference to be drawn from the facts and circumstances of a case based on the cumulative assessment of the nature of evidence available against the participants.
Result : Appeal dismissed.
JUDGMENT
Navin Sinha, J.
The conviction of the appellants under Section 302/34 of the Indian Penal Code (for short, "I.P.C.") by the Sessions Judge, North Lakhimpur, has been affirmed by the High Court, sentencing them to life imprisonment along with fine and a default stipulation. Thus, the present appeal by the appellants.
2. The prosecution alleged that the two deceased, Abdul Motin and Abdul Barek were assaulted on 05.08.2005 at about 06.00 PM while they were returning from the market on bicycles along with others. Abdul Barek died on the spot. Abdul Motin died in the hospital during the course of treatment the same night. Originally there were five named accused persons. Accused nos.3 and 5 have been acquitted giving them the benefit of doubt. We are not informed of any appeal preferred against their acquittals.
3. Shri Gaurav Agrawal, learned counsel for the appellants, submitted that if two of the accused have been acquitted giving them the benefit of doubt on basis of the same evidence, the conviction of the appellants is unjustified and they too are entitled to acquittal on benefit of doubt. There are several inconsistencies in the evidence of the eye 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 deposed that he had been informed by Babulal and Asgar Ali that the appellants were the assailants. The prosecution has not examined either of them. The eye witnesses have deposed of assault upon the two deceased by appellants nos.2 and 3 only. There is no allegation that appellant no. 1 was armed in any manner or that he also assaulted any one of the two deceased. Thus, there is no material to infer common intention with regard to appellant no. 1. Appellants nos.2 and 3 are therefore individually liable for their respective assault upon the two deceased. The recoveries attributed to the appellants has been disbelieved. It was lastly submitted that no charge had been framed under Section 34 IPC.
4. 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 acquittal of the two co-accused on benefit of doubt can be of no avail to the appellants in view of the nature of evidence available with regard to them. Common intention is clearly established by the fact that the appellants were armed and lay in wait for the two deceased who were accosted while returning from the market and the assault followed leading to the death of the two.
5. We have considered the submissions on behalf of the parties. The two deceased were returning from the market 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 deceased was conducted by P.W.8, who found the following injuries on his person:
"During post mortem examination, left leg of the deceased was found amputated at 8 cm above left ankle joint. The wound of the amputated part was incised looking of sizes 6cm. x 4cm. a clean bevelled sharp cut was seen in the both bone of the leg. The muscles, major blood vessels were also damaged through and through. The detached part was also seen with the same injury. The injury was ante mortem in nature. The other organs were found healthy."
6. Likewise, the post mortem of Abdul Motin was done by P.W. 10, who found the following injuries on his person:
"Rigor mortis present on 6th upper and lower limbs. The body was very pale, multiple sharp cuts in 6th lower limbs. The left foot was cut about 1st above the ankle joint and separate from the upper leg and was not found with body at the time of my post mortem examination.
1. Sharp cut in the lower limbs, left leg at about 1" above the ankle joint causing complete detachment of left foot from left leg. Both leg bones, skin, soft tissues and vessels were cut through cau
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