Date: 19 October, 2020
by Nishtha Girdhar, UILS, Panjab University
APPELLANT- Subed Ali and Others
RESPONDENT- State of Assam
CRIMINAL APPEAL NO.1401 OF 2012
DECIDED ON- 30 September, 2020
BENCH- Justice Rohinton Fali Nariman, Justice Navin Sinha, Justice K.M. Joseph
The appellants were convicted under section 34(acts done by several persons in furtherance of common intention) and section 302(punishment for murder) of the Indian Penal Code (IPC), 1860 by the Sessions Court. This was affirmed by the High Court which awarded them life imprisonment coupled with fine.
The appellant/ accused appealed in the Supreme Court.
It was alleged by the prosecution that Abdul Motin and Abdul Barek, the deceased, were assaulted by the accused/appellant on 5 August, 2005 at around 6 pm when they were returning from the market on their bicycles.
Abdul Barek died on the spot as a result of the injuries sustained. Abdul Motin succumbed to his injuries while being treated in the hospital on the same night.
Out of the 5 accused, 2 were acquitted by the Sessions Court on being given the benefit of doubt.
In the present case, the Court took note of the facts that appellant no.1 lay in wait along with the other two appellants who were armed.
Appellant no.1 stopped the two deceased who were returning from the market. The assault commenced after the deceased had halted.
Appellant no. 1 along with the other accused chased the injured Abdul Motin after he tried to flee, caught hold of him after which he was brutally assaulted. He was then dragged by the accused persons to the place where the first deceased lay motionless.
It was contended by appellant no. 1 that he cannot be said to have shared common intention with appellant nos. 2 and 3 who were liable for their own individual acts and that this entitled appellant no. 1 to acquittal.
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?
Elaborating on “common intention”, the Court said that it consists of several persons acting in unison to achieve a common purpose though their roles maybe different. It is irrelevant if that role is active or passive once common intention is established. Common intention was held to be 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. The foundation for conviction on the basis of common intention is based on the principle of vicarious responsibility. It was held that the presence of an intention to commit the act, if sufficiently established would suffice to secure a conviction. The hon’ble Court held that common intention can be inferred if the nature of evidence displays a prearranged plan and acting in concert pursuant to the plan.
The Court hence dismissed the appeal and upheld the conviction of the appellants.
In the case of Surender Chauhan vs. State of Madhya Pradesh (2000) 4 SCC 110, it was noted that the absence of a positive act of assault was not a necessary ingredient to establish common intention. Similarly, in Nandu Rastogi vs. State of Bihar (2002) 8 SCC 9, the hon’ble court noted that “To attract Section 34, IPC it is not necessary that each one of the accused must assault the deceased. It is enough if it is shown that they shared a common intention to commit the offence and in furtherance thereof each one played his assigned role by doing separate acts, similar or diverse….”.
Hence, time and again it has been reiterated by the courts that establishment of a common intention/mental element would suffice to apply section 34 even if the roles played in accomplishment of a particular act were different.