Penal Code, 1860 – s. 302/34 – The prosecution alleged that two persons were assaulted while they were returning from the market on bicycles along with others – One of them died on the spot and the other one died in the hospital – The appellantsaccused were convicted u/s. 302/34 and sentenced to life imprisonment – Originally there were five named accused persons – Accused nos. 3 and 5 were acquitted on the benefit of doubt – There is no appeal against their acquittals – Appellants contended that if two accused have been acquitted giving them benefit of doubt on basis of the same evidence, the conviction of the appellants is unjustified – On appeal, held: The P.W. 5, 6, 7 and 9 deposed that appellant no. 1 stopped the deceased, then appellant no. 2 assaulted one of them who died on the spot and appellant no. 3 assaulted the other person/victim and injured him – When the other victim tried to flee from the place of occurrence, he was chased by accused persons and caught and was brutally assaulted – The other victim later died in the hospital – There is no reason to doubt the presence and assault on the two deceased by appellant nos. 2 & 3 to grant them acquittal on any benefit of doubt or parity with the acquitted, merely because no appeal was preferred – As far as appellant no. 1 is concerned, the appellant no. 1 had stopped the two deceased who were returning from the market and the assault commenced after the deceased had halted – No further evidence is required with regard to existence of common intention in appellant no. 1 to commit the offence in question – Resultantly, there is no reason to interfere with the conviction and sentence of the appellants.
Criminal law – Common intention – Held: 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 – 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. Dismissing the appeal, the Court
HELD: 1. Similar to deposition of PW-5, PW-6, 7 and 9 deposed that appellant no.1 stopped the deceased, appellant no.
2 assaulted one of the deceased with a ‘Dao’, who died on the spot. Appellant no.3 assaulted the other person and injured him. The injured tried to flee from the place of occurrence. He was chased by the accused persons and caught near a house where he was brutally assaulted. He was then dragged to the spot where deceased was lying. The injured was taken to the hospital and died the same night. The deposition of P.W.6 in his cross examination with regard to darkness affecting identification is inconsequential in view of the consistent evidence of P.Ws. 5, 7 and 9 that it was evening time after sunset but not dark, making identification in the dusk possible. In any event, it is apparent that the parties were known to each other from before and therefore identification in the dusk cannot be doubted. [Para 11] [737-H; 738-A-C]
2. This Court, therefore, find no reason to doubt the presence and assault on the two deceased by appellant nos.2 &
3 to grant them acquittal on any benefit of doubt or parity with the acquitted accused, merely because no appeal has been preferred. [Para 12][738-C-D]
3. That leaves for consideration of this Court the submission that the appellant no.1 is entitled to acquittal as he cannot be said to have shared any common intention with appellants nos. 2 and 3 and who are liable for their individual acts. 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. 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 pre-arranged 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. [Para 13][738-D-H; 739-A]
4. Coming to the facts of the present case, the 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. That there was some dispute with regard to money is apparent from the evidence of the witnesses. One died on the spot as a result of the brutal assault. The other one was injured in the first assault upon him by appellant no.3, after which he tried to flee. Appellant no 1 along with the other accused chased him, caught hold of him near a house where he was brutally assaulted. The injured was then dragged by the accused persons to the place where the deceased was laid. No further evidence is required with regard to existence of common intention in appellant no.1 to commit the offence in question. This Court, therefore, find 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 the existence of any common intention for that reason. [Para 18][740-D-F]
Karnail Singh v.State of Punjab 1954 SCR 904 ; Ramaswami Avyangar v. State of T.N. (1976) 3 SCC
779 : [1976] 3 SCR 876 ; Nandu Rastogi v. State of Bihar (2002) 8 SCC 9 : [2002] 3 Suppl. SCR 30 ; Surender Chauhan v. State of Madhya Pradesh (2000)
4 SCC 110 : [2000] 2 SCR 515 ; Nand Kishore v. State of Madhya Pradesh (2011) 12 SCC 120 : [2011] 7 SCR 1152 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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