SC Reiterates Active Participation Not Essential to Establish Common Intention

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The Supreme Court reiterated the law of common intention while hearing the appeal against the conviction of three accused. The Court said that no actual action needs to be committed to establish the presence of common intention.

Facts of the Case

This appeal has been filed by three accused convicted under Section 302 read with 34 of the Indian Penal Code by the Sessions Judge and High Court. The Court sentenced them to life imprisonment along with a fine and a default stipulation. 

Here, the two deceased were returning from the market on bicycles. The appellants hid with weapons and assaulted them. One of the deceased died on spot, and the other died in the hospital in the course of treatment the same night. There were five named accused, but the Court acquitted two on the ground of benefit of the doubt.

Arguments

The Counsel representing the appellants argued that the conviction of the applicants is unjustified since the Court acquitted the other two based on the same evidence. Hence, the appellants are entitled to acquittal on the benefit of the doubt.

Further, there are several inconsistencies in the evidence of the eyewitnesses. 

The incident had taken place after darkness making the identification doubtful. The Counsel relied on the cross-examination of the Prosecution Witness No. 6.

Additionally, the P.W. 1 deposed that two others informed him that the appellants are the assailants. And the prosecution had not examined either of them. It has been argued that no charge can be framed under Section 34 of IPC as there is no material to infer the common intention of appellant No. 1.

The Counsel for the State submits that the eyewitness accounts of P.W. 5, 6, 7, and 9 are consistent. The acquittal of the other two co-accused can be of no avail to the appellants because of the nature of the evidence available on them. The common intention is established by the fact that the appellants were armed and lay in wait for the two deceased who were accosted while returning from the market.

Court’s Observations

First, about the appellants’ contention about the P.W. 1, the court said that he is not an eyewitness to the occurrence. P.W 5 was an eye witness and deposed that there was enough light at the time of the occurrence. His account of the incident was further supported by the testimonies of the P.W. 6, 7, and 9. 

The deposition of P.W. 6 about the darkness is in consensual given the consistent evidence of P.W. 5, 7, and 9. 

Thus, the Court observed that they find no reason to doubt the presence of Appellants and there on the two deceased. Hence they cannot be acquitted on the grounds of the benefit of the doubt.

The Court then went into the law behind the common intention and said that in common intention the role of every single participant may be active or passive. But that is irrelevant once the common intention is established. There can hardly be any direct evidence of common intention, and it is a matter of inference from the facts and circumstances. It is based on the principle of vicarious responsibility. The presence of the mental element or the intention to commit the act is important. If that is established is enough for conviction. Actual participation is not necessary. It also may be developed on spot and it is to be deducted from the facts and circumstances of the particular case. 

In the present case through the evidence on record, it can be established that Appellant No. 1 had been himself involved in the assault of the deceased. Thus, no further evidence is required about the existence of common intention.

Court’s Decision

The three-judge bench comprising of Justice RF Nariman, Justice Navin Shah, and Justice Indira Banerjee upheld the conviction and sentence of the appellants. The bench dismissed the appeal.


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