Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1401 OF 2012
SUBED ALI AND OTHERS ...APPELLANT(S)
VERSUS
| THE STATE OF ASSAM | . |
|---|
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
Signature Not Verified
Digitally signed by
Jayant Kumar Arora
Date: 2020.09.30
17:09:38 IST
Reason:
about 06.00 PM while they were returning from the market
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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
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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 coaccused 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
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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.”
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6. Likewise, the post mortem of Abdul Motin was done by
P.W.10, who found the following injuries on his person:
th
“Rigor mortis present on 6 upper and lower
limbs. The body was very pale, multiple
th
sharp cuts in 6 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 causing extensive 8
haemorrhages, skin margins. All wounds
were sharp and retracted. Muscles, ligaments
vessels were also retracted.
2. Sharp cut right leg, about 2” in size at the
anterior part at the junction of upper and
middle thread. It was obliquely placed and
causing cut in the skin, cut and fracture of
right tibia and medial part of calf muscle and
vessels and caused bleeding.
3. Another sharp cut in middle thread of
right leg about 2” in size placed in anterior
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medial part, outer skin, caused cut and
fracture of right tibia, causing sufficient
haemorrhage. It is also cut the calf muscles.
4. Sharp cut on the lateral side of the right
ankle causing sharp cut obliquely down. It
was also about 3½” in size causing about
rd
2/3 separation of ankle of the right foot.
The skin, lower end of fibula ligaments and
muscles and vessels and upper part of
calcaneus bone was cut through, causing
anterior haemorrhage.
All the injuries were ante mortem in nature.
Other organs were found healthy.”
7. A G.D. Entry was made at the North Lakhimpur Police
Station at 09.00 PM on 05.08.2005 on oral information by
P.W.1 who was the Gaonburah , that some unknown persons
had assaulted the two deceased, one of whom died on the
spot, and the other had been taken to the hospital. A formal
F.I.R was lodged on 06.08.2005 at 3:15 PM by the brother of
the deceased after the injured was also deceased, naming five
accused including the appellants.
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8. Charges were framed against the five accused under
Sections 147, 341 and 302 IPC. The charge under Section
341 IPC was held not to have been proved against the
accused. The Sessions Judge acquitted accused nos. 3 and 5
based on the evidence of P.W.1 and P.W.5 giving them the
benefit of doubt with regard to their presence and
participation. Since the number of accused persons now fell
below five, conviction of the appellants followed under Section
302/34 IPC. The acquittal of the two coaccused in the facts
of the case, despite the deposition of the eye witnesses, can
be of no avail to the appellants in view of the consistent
nature of the evidence available against them. Minor
inconsistencies and contradictions in the evidence of the eye
witnesses are considered inconsequential. Their evidence on
all material aspects are consistent lending credibility to their
eye witness account. We find no infirmity in the conviction of
the appellants with the aid of Section 34. In Karnail Singh
, 1954 SCR 904, it was held as follows:
vs. State of Punjab
7
“8. …But if the facts to be proved and the
evidence to be adduced with reference to the
charge under Section 149 would be the same
if the charge were under Section 34, then the
failure to charge the accused under Section
34 could not result in any prejudice and in
such cases the substitution of Section 34 for
Section 149 must be held to be a formal
matter…..”
9. P.W. 1 is not an eye witness to the occurrence. The fact
that both Babul Ali and Asgar Ali have not been examined by
the prosecution is considered irrelevant in view of the
evidence of the Investigating Officer P.W. 12 when confronted
by the prosecution, he denied that P.W.1 had ever made any
such statement to him during investigation.
10. P.W. 5 was an eye witness accompanying the two
deceased. He deposed that there was sufficient light at the
time of occurrence for identification. In his cross
examination he deposed that appellant no.1 stopped the two
deceased after which appellant no.2 assaulted Abdul Barek
on the leg with a sharp cutting weapon. The second
deceased, Abdul Motin tried to flee after he was injured by
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appellant no.3, but was chased by the accused and caught
near the house of Mamud Ali at which point of time the
witness ran away fearing for his own safety. Later he learnt
that the two persons had been deceased.
11. Similarly, P.W.6, 7 and 9 deposed that appellant no.1
stopped the deceased, appellant no 2 assaulted deceased
Abdul Barek with a ‘ Dao ’, who died on the spot. Appellant
no.3 assaulted Abdul Motin and injured him. The injured
tried to flee from the place of occurrence. He was chased by
the accused persons and caught near the house of Mamud
Ali where he was brutally assaulted. He was then dragged to
the spot where Abdul Barek 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
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parties were known to each other from before and therefore
identification in the dusk cannot be doubted.
12. We 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.
13. That leaves for our consideration the submission of Shri
Agrawal that 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
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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 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
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role played by the accused, are but only some of the materials
for drawing inferences.
14. In Ramaswami Avyangar vs. State of T.N., (1976) 3
SCC 779, in order to establish common intention it was
observed as follows :
“12…. The acts committed by different
confederates in the criminal action may be
different but all must in one way or the other
participate and engage in the criminal
enterprise, for instance, one may only stand
guard to prevent any person coming to the
relief of the victim, or may otherwise facilitate
the execution of the common design. Such a
person also commits an “act” as much as his
coparticipants actually committing the
planned crime. In the case of an offence
involving physical violence, however, it is
essential for the application of Section 34
that the person who instigates or aids the
commission of the crime must be physically
present at the actual commission of the
crime for the purpose of facilitating or
promoting the offence, the commission of
which is the aim of the joint criminal
venture. Such presence of those who in one
way or the other facilitate the execution of
the common design, is itself tantamount to
actual participation in the ‘criminal act’. The
essence of Section 34 is simultaneous
consensus of the minds of persons
participating in the criminal action to bring
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about a particular result. Such consensus
can be developed at the spot and thereby
intended by all of them….”
15. In (2002) 8 SCC 9,
Nandu Rastogi vs. State of Bihar,
with regard to the inference for common intention this Court
observed as follows :
“17…. They came together, and while two of
them stood guard and prevented the
prosecution witnesses from intervening,
three of them took the deceased inside and
one of them shot him dead. Thereafter they
fled together. 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….”
16. In Surender Chauhan vs. State of Madhya Pradesh ,
(2000) 4 SCC 110, it was noticed that absence of a positive
act of assault was not a necessary ingredient to establish
common intention observing :
“11. Under Section 34 a person must be
physically present at the actual
commission of the crime for the purpose of
facilitating or promoting the offence, the
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commission of which is the aim of the joint
criminal venture. Such presence of those
who in one way or the other facilitate the
execution of the common design is itself
tantamount to actual participation in the
criminal act. The essence of Section 34 is
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….”
17. A similar view was taken in Nand Kishore vs. State of
, (2011) 12 SCC 120.
Madhya Pradesh
18. 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. Abdul Barek died on the spot as a result of the
brutal assault. Abdul Motin 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,
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caught hold of him near the house of Mamud Ali where he
was brutally assaulted. Abdul Motin was then dragged by the
accused persons to the place where Abdul Barek lay
motionless. To our mind no further evidence is required with
regard to existence of common intention in appellant no.1 to
commit the offence in question. We, 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.
19. Resultantly, we find no reason to interfere with the
conviction and sentence of the appellants. The appeal is
dismissed.
…………...................J.
[R.F. NARIMAN]
…………...................J.
[NAVIN SINHA]
…………...................J.
[INDIRA BANERJEE]
NEW DELHI
SEPTEMBER 30, 2020.
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