In the case of Subed Ali and Others v. The State of Assam, a three-judge bench of the Supreme Court pronounced that for the application of Section 34 of the Indian Penal Code (hereafter referred to as IPC), active involvement of the accused to convict him on the ground of common intention is not necessary.

Table of Contents:

• Factual Background
• Issues Raised
• Appellant’s Contention
• Respondent’s Contention
• Court’s Opinion on Common Intention
• Cases Referred by the Court
• Ramaswami Ayyangar vs. State of Tamil Nadu
• Nandu Rastogi v. State of Bihar
• Surendra Chauhan v. State of Madhya Pradesh
• Nand Kishore v. State of Madhya Pradesh
• Observations of the Court
• Judgement
• Conclusion

Factual Background

The present appeal is made before the Apex Court when the conviction of the appellants was affirmed by the High Court under Section 302 and Section 34 of IPC. The appellants were sentenced to life imprisonment along with a fine.

According to the prosecution, on August 5, 2005, while Abdul Motin and Abdul Barek were returning from the market with others on their bicycles, they were restrained by the accused/appellant and were assaulted. As a result of the injury caused to the victim named Abdul Barik, he died on the spot and another deceased named Abdul Motin succumbed to his injuries later in the hospital. Thus, on receipt of an FIR, the officer-in-charge of North Lakhimpur started an investigation after registering a case against them.

After completion of the investigation, the officer by alleging commission of a crime under Section 147, 341, 302 of IPC, filed a charge-sheet against the 5 accused persons. The 5 accused persons were put on trial before the Sessions Judge, North Lakhimpur.

P.W. 5 deposed that appellant no. 1 stopped the two deceased while appellant no. 3 and 5 assaulted them.

Out of the 5 accused, the Sessions Court acquitted 2 accused, as the prosecution was unable to prove the accusation against them. Thus, 2 accused among 5 were acquitted by the Court.

After completion of the trial, the Sessions Judge convicted the accused/appellant under Section 302 read with Section 34 of IPC. They were sentenced to imprisonment for life and were asked to pay a fine.

This conviction of the appellants by the Sessions Judge was also affirmed by the High Court. Thus, with the prayer of their acquittal, the present appeal was filed by the appellants before the Apex Court.

Issues Raised:

Whether accused / appellant no. 1 is entitled to acquittal on the grounds of not being involved in the physical assault and hence not being liable to be convicted for common intention under Section 34?

Appellant’s Contention

Learned counsel of the appellant, Shri Gaurav Agrawal submitted that if two accused are acquitted giving them the benefit of doubt on basis of the same evidence, their conviction is unjustified. As per the appellants, they too are entitled for acquittal on the benefit of doubt. The evidence of the eyewitnesses P.Ws. 5, 6, 7 and 9 was full of inconsistencies. It is to be noted that the incident occurred after dark which makes relying on the identification doubtful on the cross-examination of P.W. 6.

P.W.1 also deposed that he had been informed by Babulal and Asgar Ali that the appellants were the assailants, but the prosecution did not examine them. 

He also contended that as per the evidence of eyewitness, an assault was made on the two deceased by appellants no. 2 and no. 3 only. There is an absence of any allegation that appellant no. 1 was also armed in any manner or he also assaulted any one of the two deceased. Thus, the intention of appellant no. 2 and no. 3 should not be considered as common with appellant no. 1.

Both the accused appellants are individually responsible for assaulting the two deceased.

Respondent’s Contention

Learned counsel for the State submitted that due to the nature of the evidence available concerning both the co-accused appellants, it is not possible to acquit them by giving them the benefit of doubt.

The very fact that the appellants were armed is enough to establish their common intention as they were waiting for the two deceased to return from the market, then later assaulted them which led to their death.

Court’s opinion on Common Intention

Coram: Justice Navin Sinha, Justice Rohinton Fali Nariman, , Justice K.M. Joseph

The Court while giving its opinion on common intention held that common intention exists when several people perform simultaneously to achieve a common purpose, though their roles may be different. Once the common intention is established, it is irrelevant whether the role may be active or passive. It is difficult to get 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 the evidence available against the participants.

The foundation for conviction on the basis of common intention is based on the principle of vicarious responsibility by which a person is held to be answerable for the acts of others with whom he 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 participation in the assault. It is therefore 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. If the nature of evidence displays a pre­arranged plan and acting in concert pursuant to the plan, common intention can be inferred. A common intention to bring about a particular result may also develop on the spot as between a number of persons deducible from the facts and circumstances of a particular case. The coming together of the accused to the place of occurrence, some or all of whom may be armed, the manner of assault, the active or passive role played by the accused, are but only some of the materials for drawing inferences.

Cases Referred by the Court
In the case of  Ramaswami Avyangar vs. State of T.N., the observed that the different acts may be committed by different confederates in the criminal action but everyone present in the act must in one way or the other participate and engage in the criminal enterprise. For instance, a person may stand to guard so that no person enters for relief of the victim or in some other way help to execute the common design. Acts of such person will be considered as equivalent to his coparticipants who are actually committing the planned crime.

However, for the application of Section 34 of the IPC, an offence involving physical violence, it is necessary that the person who instigates or aids the commission of the crime must be physically present at the actual commission of the crime to facilitate or promote the offence, the commission of which is the aim of the joint criminal venture. The presence of the person in one or the other way help in the execution of the common plan itself commensurate to actual participation in the ‘criminal act’.

The essence of section 34 lies in the 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.

In Nandu Rastogi v. State of Bihar, the Supreme Court held that to attract Section 34 of the IPC, assault of every accused on the deceased is not necessary. Sharing similar intention of every accused to commit the offence and in furtherance, each accused played his respective assigned role is enough to prove their common intention.

In Surendra Chauhan v. State of Madhya Pradesh, it was noticed that presence of a person when in one or the other way facilitate the execution of a common design is itself tantamount to actual participation in the criminal act. 

A similar view was taken by the Court in the case of Nand Kishore v. State of Madhya Pradesh.

Observations of the Court

The Court observed that appellant no. 1 was waiting with the other co-accused who were armed. It was appellant no. 1 who initiated and stopped the way of the two deceased who were returning from the market. The assault commenced after the two deceased had halted. From the evidence of the witness, it is apparent that there was some dispute with regard to money. Due to the brutal assault by the accused, Abdul Barek died on the spot. The other deceased Abdul Motin tried to flee after he was injured in the first assault upon him by appellant no.3 after which he was chased by appellant no. 1 along with the other co-accused.

Judgement

The Court held that no further evidence is required to prove the common intention of appellant no. 1 to commit the offence in question. Thus, there is no reason that why should appellant no. 1 be granted any benefit on the plea that there is no role or act of assault attributed to him, denying the existence of any common intention for that reason.

Conclusion

Thus, the Supreme Court in the instant case rejected the plea for pardon and held that there is no need to interfere in the conviction by the Court.

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