SUBED ALI AND OTHERS versus THE STATE OF ASSAM on 30 September 2020

[2020] 8 S.C.R. 731

SUBED ALI AND OTHERS

v.

THE STATE OF ASSAM

(Criminal Appeal No. 1401 of 2012)

SEPTEMBER 30, 2020

[ROHINTON FALI NARIMAN, NAVIN SINHAAND INDIRA BANERJEE, JJ.]

Penal Code, 1860 – s. 302/34 – The prosecution alleged thattwo persons were assaulted while they were returning from themarket on bicycles along with others – One of them died on thespot and the other one died in the hospital – The appellants-accused were convicted u/s. 302/34 and sentenced to lifeimprisonment – 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 contendedthat if two accused have been acquitted giving them benefit ofdoubt on basis of the same evidence, the conviction of theappellants is unjustified – On appeal, held: The P.W. 5, 6, 7 and 9deposed that appellant no. 1 stopped the deceased, then appellantno. 2 assaulted one of them who died on the spot and appellantno. 3 assaulted the other person/victim and injured him – Whenthe other victim tried to flee from the place of occurrence, he waschased by accused persons and caught and was brutally assaulted– The other victim later died in the hospital – There is no reasonto doubt the presence and assault on the two deceased by appellantnos. 2 & 3 to grant them acquittal on any benefit of doubt or paritywith the acquitted, merely because no appeal was preferred – Asfar as appellant no. 1 is concerned, the appellant no. 1 had stoppedthe two deceased who were returning from the market and theassault commenced after the deceased had halted – No furtherevidence is required with regard to existence of common intentionin appellant no. 1 to commit the offence in question – Resultantly,there is no reason to interfere with the conviction and sentence ofthe appellants.

Criminal law – Common intention – Held: Common intentionconsists of several persons acting in unison to achieve a common

731

A

B

CDEF

G

H

Apurpose, though their roles may be different – The role may beactive or passive is irrelevant, once common intention isestablished – There can hardly be any direct evidence of commonintention – It is more a matter of inference to be drawn from thefacts and circumstances of a case based on the cumulativeassessment of the nature of evidence available against theBparticipants – The foundation for conviction on the basis ofcommon intention is based on the principle of vicariousresponsibility by which a person is held to be answerable for theacts of others with whom he shared the common intention.

Dismissing the appeal, the CourtCHELD: 1. Similar to deposition of PW-5, PW-6, 7 and 9deposed that appellant no.1 stopped the deceased, appellant no.2 assaulted one of the deceased with a ‘Dao’, who died on thespot. Appellant no.3 assaulted the other person and injured him.The injured tried to flee from the place of occurrence. He waschased by the accused persons and caught near a house whereDhe was brutally assaulted. He was then dragged to the spot wheredeceased was lying. The injured was taken to the hospital anddied the same night. The deposition of P.W.6 in his crossexamination with regard to darkness affecting identification isinconsequential in view of the consistent evidence of P.Ws. 5, 7Eand 9 that it was evening time after sunset but not dark, makingidentification in the dusk possible. In any event, it is apparentthat the parties were known to each other from before andtherefore identification in the dusk cannot be doubted. [Para 11][737-H; 738-A-C]

2. This Court, therefore, find no reason to doubt theFpresence and assault on the two deceased by appellant nos.2 &3 to grant them acquittal on any benefit of doubt or parity withthe acquitted accused, merely because no appeal has beenpreferred. [Para 12][738-C-D]

3. That leaves for consideration of this Court theGsubmission that the appellant no.1 is entitled to acquittal as hecannot be said to have shared any common intention withappellants nos. 2 and 3 and who are liable for their individualacts. Common intention consists of several persons acting inunison to achieve a common purpose, though their roles maybe different. The role may be active or passive is irrelevant,Honce common intention is established. There can hardly be any direct evidence of common intention. It is more a matter ofinference to be drawn from the facts and circumstances of a casebased on the cumulative assessment of the nature of evidenceavailable against the participants. The foundation for convictionon the basis of common intention is based on the principle ofvicarious responsibility by which a person is held to beanswerable for the acts of others with whom he shared thecommon intention. The presence of the mental element or theintention to commit the act if cogently established is sufficientfor conviction, without actual participation in the assault. It istherefore not necessary that before a person is convicted on theground of common intention, he must be actively involved in thephysical activity of assault. If the nature of evidence displays apre-arranged plan and acting in concert pursuant to the plan,common intention can be inferred. A common intention to bringabout a particular result may also develop on the spot asbetween a number of persons deducible from the facts andcircumstances of a particular case. The coming together of theaccused to the place of occurrence, some or all of whom maybe armed, the manner of assault, the active or passive roleplayed by the accused, are but only some of the materials fordrawing inferences. [Para 13][738-D-H; 739-A]

4. Coming to the facts of the present case, the appellantno.1 lay in wait along with the other two appellants who werearmed. Appellant no.1 stopped the two deceased who werereturning from the market. The assault commenced after thedeceased had halted. That there was some dispute with regardto money is apparent from the evidence of the witnesses. Onedied on the spot as a result of the brutal assault. The other onewas injured in the first assault upon him by appellant no.3, afterwhich he tried to flee. Appellant no 1 along with the other accusedchased him, caught hold of him near a house where he wasbrutally assaulted. The injured was then dragged by the accusedpersons to the place where the deceased was laid. No furtherevidence is required with regard to existence of commonintention in appellant no.1 to commit the offence in question.This Court, therefore, find no reason to grant any benefit toappellant no.1 on the plea that there is no role or act of assaultattributed to him, denying the existence of any common intentionfor that reason. [Para 18][740-D-F]

ABCD

EF

GH

AKarnail Singh v.State of Punjab 1954 SCR 904 ;Ramaswami Avyangar v. State of T.N. (1976) 3 SCC779 : [1976] 3 SCR 876 ; Nandu Rastogi v. State ofBihar (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. StateBof Madhya Pradesh (2011) 12 SCC 120 : [2011] 7SCR 1152 – relied on.

Case Law Reference

DCRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1401 of 2012.From the Judgment and Order dated 03.04.2012 of the HighCourt of Gauhati in Crl. Appeal No. 32 of 2009.

Gaurav Agrawal, Ms. Charu Ambwani, Tayenjam Momo Singh,EDebojit Borkakati, Advs. for the appearing parties.

The Judgment of the Court was delivered by NAVIN SINHA, J.

1. The conviction of the appellants under Section 302/34 of theFIndian Penal Code (for short, “I.P.C.”) by the Sessions Judge, NorthLakhimpur, has been affirmed by the High Court, sentencing them tolife imprisonment along with fine and a default stipulation. Thus, thepresent appeal by the appellants.

2. The prosecution alleged that the two deceased, Abdul Motinand Abdul Barek were assaulted on 05.08.2005 at about 06.00 PM whileGthey were returning from the market on bicycles along with others. AbdulBarek died on the spot. Abdul Motin died in the hospital during thecourse of treatment the same night. Originally there were five namedaccused persons. Accused nos.3 and 5 have been acquitted giving themthe benefit of doubt. We are not informed of any appeal preferredHagainst their acquittals.

3. Shri Gaurav Agrawal, learned counsel for the appellants,submitted that if two of the accused have been acquitted giving themthe benefit of doubt on basis of the same evidence, the conviction ofthe appellants is unjustified and they too are entitled to acquittal onbenefit of doubt. There are several inconsistencies in the evidence ofthe eye witnesses P.Ws. 5, 6, 7 and 9. The occurrence had taken placeafter darkness had engulfed, making identification doubtful relying onthe cross examination of P.W.6. P.W.1 deposed that he had beeninformed by Babulal and Asgar Ali that the appellants were theassailants. The prosecution has not examined either of them. The eyewitnesses have deposed of assault upon the two deceased by appellantsnos.2 and 3 only. There is no allegation that appellant no.1 was armedin any manner or that he also assaulted any one of the two deceased.Thus, there is no material to infer common intention with regard toappellant no.1. Appellants nos.2 and 3 are therefore individually liablefor their respective assault upon the two deceased. The recoveriesattributed to the appellants has been disbelieved. It was lastly submittedthat no charge had been framed under Section 34 IPC.

4. Learned counsel for the State submitted that the eye witnessesP.Ws. 5, 6, 7 and 9 are consistent with regard to the participation ofthe appellants in the assault. The acquittal of the two co-accused onbenefit of doubt can be of no avail to the appellants in view of the natureof evidence available with regard to them. Common intention is clearlyestablished by the fact that the appellants were armed and lay in waitfor the two deceased who were accosted while returning from themarket 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 byP.Ws. 5, 6, 7 and 9. They were intercepted by the appellants after whichthe assault followed. Abdul Barek died on the spot. The post mortemreport of the deceased was conducted by P.W.8, who found thefollowing injuries on his person:

“During post mortem examination, left leg of the deceased wasfound amputated at 8 cm above left ankle joint. The wound ofthe amputated part was incised looking of sizes 6cm. x 4cm. aclean bevelled sharp cut was seen in the both bone of the leg.The muscles, major blood vessels were also damaged throughand through. The detached part was also seen with the sameinjury. The injury was ante mortem in nature. The other organswere found healthy.”

AB

C

D

E

F

GH

A6. Likewise, the post mortem of Abdul Motin was done byP.W.10, who found the following injuries on his person:

“Rigor mortis present on 6[th] upper and lower limbs. The bodywas very pale, multiple sharp cuts in 6[th] lower limbs. The leftfoot was cut about 1st above the ankle joint and separate fromBthe upper leg and was not found with body at the time of mypost mortem examination.

1. Sharp cut in the lower limbs, left leg at about 1" abovethe ankle joint causing complete detachment of left footfrom left leg. Both leg bones, skin, soft tissues andvessels were cut through causing extensive 8Chaemorrhages, skin margins. All wounds were sharp andretracted. Muscles, ligaments vessels were alsoretracted.

2. Sharp cut right leg, about 2" in size at the anterior partat the junction of upper and middle thread. It wasDobliquely placed and causing cut in the skin, cut andfracture of right tibia and medial part of calf muscle andvessels and caused bleeding.

3. Another sharp cut in middle thread of right leg about 2"in size placed in anterior medial part, outer skin, causedcut and fracture of right tibia, causing sufficienthaemorrhage. It is also cut the calf muscles.

E

4. Sharp cut on the lateral side of the right ankle causingsharp cut obliquely down. It was also about 3½” in sizecausing about 2/3[rd] separation of ankle of the right foot.The skin, lower end of fibula ligaments and muscles andFvessels and upper part of calcaneus bone was cutthrough, causing anterior haemorrhage.

All the injuries were ante mortem in nature. Other organs werefound healthy.”

G7. A G.D. Entry was made at the North Lakhimpur Police Stationat 09.00 PM on 05.08.2005 on oral information by P.W.1 who was theGaonburah, that some unknown persons had assaulted the twodeceased, one of whom died on the spot, and the other had been takento the hospital. A formal F.I.R was lodged on 06.08.2005 at 3:15 PMby the brother of the deceased after the injured was also deceased,Hnaming five accused including the appellants.

8. Charges were framed against the five accused under Sections147, 341 and 302 IPC. The charge under Section 341 IPC was heldnot to have been proved against the accused. The Sessions Judgeacquitted accused nos. 3 and 5 based on the evidence of P.W.1 andP.W.5 giving them the benefit of doubt with regard to their presenceand participation. Since the number of accused persons now fell belowfive, conviction of the appellants followed under Section 302/34 IPC.The acquittal of the two co-accused in the facts of the case, despitethe deposition of the eye witnesses, can be of no avail to the appellantsin view of the consistent nature of the evidence available against them.Minor inconsistencies and contradictions in the evidence of the eyewitnesses are considered inconsequential. Their evidence on all materialaspects are consistent lending credibility to their eye witness account.We find no infirmity in the conviction of the appellants with the aid ofSection 34. In Karnail Singh vs. State of Punjab, 1954 SCR 904, itwas held as follows:- “8. …But if the facts to be proved and the evidence to beadduced with reference to the charge under Section 149 wouldbe the same if the charge were under Section 34, then the failureto charge the accused under Section 34 could not result in anyprejudice and in such cases the substitution of Section 34 forSection 149 must be held to be a formal matter…..”

9. P.W. 1 is not an eye witness to the occurrence. The fact thatboth Babul Ali and Asgar Ali have not been examined by the prosecutionis considered irrelevant in view of the evidence of the InvestigatingOfficer P.W. 12 when confronted by the prosecution, he denied thatP.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 occurrencefor identification. In his cross examination he deposed that appellantno.1 stopped the two deceased after which appellant no.2 assaultedAbdul Barek on the leg with a sharp cutting weapon. The seconddeceased, Abdul Motin tried to flee after he was injured by appellantno.3, but was chased by the accused and caught near the house ofMamud Ali at which point of time the witness ran away fearing for hisown safety. Later he learnt that the two persons had been deceased.

11. Similarly, P.W.6, 7 and 9 deposed that appellant no.1 stoppedthe deceased, appellant no 2 assaulted deceased Abdul Barek with a‘Dao’, who died on the spot. Appellant no.3 assaulted Abdul Motin and A

B

C

D

E

F

G

H

Ainjured him. The injured tried to flee from the place of occurrence. Hewas chased by the accused persons and caught near the house ofMamud Ali where he was brutally assaulted. He was then dragged tothe spot where Abdul Barek was lying. The injured was taken to thehospital and died the same night. The deposition of P.W.6 in his crossexamination with regard to darkness affecting identification isBinconsequential in view of the consistent evidence of P.Ws. 5, 7 and 9that it was evening time after sunset but not dark, making identificationin the dusk possible. In any event, it is apparent that the parties wereknown to each other from before and therefore identification in the duskcannot be doubted.

C12. We therefore find no reason to doubt the presence andassault on the two deceased by appellant nos.2 & 3 to grant themacquittal 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 ShriDAgrawal that appellant no.1 is entitled to acquittal as he cannot be saidto have shared any common intention with appellants nos.2 and 3 andwho are liable for their individual acts. Common intention consists ofseveral persons acting in unison to achieve a common purpose, thoughtheir roles may be different. The role may be active or passive isirrelevant, once common intention is established. There can hardly beEany direct evidence of common intention. It is more a matter of inferenceto be drawn from the facts and circumstances of a case based on thecumulative assessment of the nature of evidence available against theparticipants. The foundation for conviction on the basis of commonintention is based on the principle of vicarious responsibility by which aperson is held to be answerable for the acts of others with whom heFshared the common intention. The presence of the mental element orthe intention to commit the act if cogently established is sufficient forconviction, without actual participation in the assault. It is therefore notnecessary that before a person is convicted on the ground of commonintention, he must be actively involved in the physical activity of assault.GIf the nature of evidence displays a pre-arranged plan and acting inconcert pursuant to the plan, common intention can be inferred. Acommon intention to bring about a particular result may also developon the spot as between a number of persons deducible from the factsand circumstances of a particular case. The coming together of theaccused to the place of occurrence, some or all of whom may be armed,H

SUBED ALI AND OTHERS v. THE STATE OF ASSAM[NAVIN SINHA, J.]

the manner of assault, the active or passive 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 SCC779, in order to establish common intention it was observed asfollows :- “12…. The acts committed by different confederates in thecriminal action may be different but all must in one way or theother participate and engage in the criminal enterprise, forinstance, one may only stand guard to prevent any person comingto the relief of the victim, or may otherwise facilitate the executionof the common design. Such a person also commits an “act” asmuch 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 personwho instigates or aids the commission of the crime must bephysically present at the actual commission of the crime for thepurpose of facilitating or promoting the offence, the commissionof which is the aim of the joint criminal venture. Such presenceof those who in one way or the other facilitate the execution ofthe common design, is itself tantamount to actual participation inthe ‘criminal act’. The essence of Section 34 is simultaneousconsensus of the minds of persons participating in the criminalaction to bring about a particular result. Such consensus can bedeveloped at the spot and thereby intended by all of them….”

15. In Nandu Rastogi vs. State of Bihar, (2002) 8 SCC 9, withregard to the inference for common intention this Court observed asfollows :- “17…. They came together, and while two of them stood guardand prevented the prosecution witnesses from intervening, threeof them took the deceased inside and one of them shot him dead.Thereafter they fled together. To attract Section 34 IPC it is notnecessary that each one of the accused must assault thedeceased. It is enough if it is shown that they shared a commonintention to commit the offence and in furtherance thereof eachone played his assigned role by doing separate acts, similar ordiverse….”

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 A

BCD

E

F

G

H

Anot a necessary ingredient to establish common intention observing :- “11. Under Section 34 a person must be physically present atthe actual commission of the crime for the purpose of facilitatingor promoting the offence, the commission of which is the aim ofthe joint criminal venture. Such presence of those who in oneBway or the other facilitate the execution of the common designis itself tantamount to actual participation in the criminal act. Theessence of Section 34 is simultaneous consensus of the mindsof persons participating in the criminal action to bring about aparticular result. Such consensus can be developed at the spotand thereby intended by all of them….”

C17. A similar view was taken in Nand Kishore vs. State ofMadhya Pradesh, (2011) 12 SCC 120.

18. Coming to the facts of the present case, the appellant no.1lay in wait along with the other two appellants who were armed.Appellant no.1 stopped the two deceased who were returning from theDmarket. The assault commenced after the deceased had halted. Thatthere was some dispute with regard to money is apparent from theevidence of the witnesses. Abdul Barek died on the spot as a resultof the brutal assault. Abdul Motin was injured in the first assault uponhim by appellant no.3, after which he tried to flee. Appellant no 1 alongwith the other accused chased him, caught hold of him near the houseEof Mamud Ali where he was brutally assaulted. Abdul Motin was thendragged by the accused persons to the place where Abdul Barek laymotionless. To our mind no further evidence is required with regard toexistence of common intention in appellant no.1 to commit the offencein question. We, therefore, find no reason to grant any benefit toFappellant no.1 on the plea that there is no role or act of assault attributedto him, denying the existence of any common intention for that reason.19. Resultantly, we find no reason to interfere with the convictionand sentence of the appellants. The appeal is dismissed.

GAnkit Gyan

Appeal dismissed.

H