Subed Ali and Others v. the State of Assam
NAVIN SINHA, J.
1. The conviction of the appellants under Section 302/34 of the
Indian Penal Code (for short, “I.P.C.”) by the Sessions Ju dge, North
Lakhimpur, has been affirmed by the High Court, sentencing them to
life imprisonment along with fine and a default stipulation. T hus, 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 about 06.00 PM while
they were returning from the market on bicycles along with others. Abdul
Barek died on the spot. Abdul Motin died in the hospital duri ng the
course of treatment the same night. Originally there were fi ve named
accused persons. Accused nos.3 and 5 have been acquitted giving them
the benefit of doubt. We are not informed of any appe al preferred
against their acquittals.
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3. Shri Gaurav Agrawal, learned counsel for the appell ants,
submitted that if two of the accused have been acquitted giving them
the benefit of doubt on basis of the same evidence, the convic tion of
the appellants is unjustified and they too are entitled to ac quittal 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 appellan ts were the
assailants. The prosecution has not examined either of them. The eye
witnesses have deposed 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 decea sed.
Thus, there is no material to infer common intention with rega rd 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 partici pation of
the appellants in the assault. The acquittal of the two c o-accused 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 an d lay in wait
for the two deceased who were accosted while returni ng from the
market and the assault followed leading to the death of th e two.
5. We have considered the submissions on behalf of the parties.
The two deceased were returning from the market acco mpanied 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 mort em
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 le g.
The muscles, major blood vessels were also damaged throug h
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.”
SUBED ALI AND OTHERS v. THE STATE OF ASSAM
[NAVIN SINHA, J.]
6. Likewise, the post mortem of Abdul Motin was done by
P.W.10, who found the following injuries on his person:
“Rigor mortis present on 6 th upper and lower limbs. The body
was very pale, multiple sharp cuts in 6 th lower limbs. The left
foot was cut about 1st above the ankle joint and separate f rom
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 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 2/3 rd 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 Sessi ons 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 pr esence
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 co-accused in the facts of the ca se, 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 t he eye
witnesses are considered inconsequential. Their evidence on all material
aspects are consistent lending credibility to their eye w itness account.
We find no infirmity in the conviction of the appellants with the aid of
Section 34. In Karnail Singh vs. State of Punjab , 1954 SCR 904, it
was held as follows:-
“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 fac t that
both Babul Ali and Asgar Ali have not been examined by the prosecution
is considered irrelevant in view of the evidence of the Inve stigating
Officer P .W. 12 when confronted by the prosecution, he denied that
P.W.1 had ever made any such statement to him during investigatio n.
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 ap pellant
no.1 stopped the two deceased after which appellant no.2 assaulte d
Abdul Barek on the leg with a sharp cutting weapon. The second
deceased, Abdul Motin tried to flee after he was injured b y appellant
no.3, but was chased by the accused and caught near the ho use 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 w ith a
‘Dao ’, who died on the spot. Appellant no.3 assaulted Abdul Motin and
SUBED ALI AND OTHERS v. THE STATE OF ASSAM
[NAVIN SINHA, J.]
injured him. The injured tried to flee from the place of occurrence. He
was chased by the accused persons and caught near t he house of
Mamud Ali where he was brutally assaulted. He was then dragge d to
the spot where Abdul Barek was lying. The injured was ta ken to the
hospital and died the same night. The deposition of P.W.6 in his cross
examination with regard to darkness affecting ident ification 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.
12. We therefore find no reason to doubt the presen ce 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 a ccused,
merely because no appeal has been preferred.
13. That leaves for our consideration the submission of S hri
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 a nd
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 o r 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 bas ed 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 wit h whom he
shared the common intention. The presence of the mental el ement or
the intention to commit the act if cogently established is suf ficient for
conviction, without actual participation in the assault. It is therefore not
necessary that before a person is convicted on the ground of com mon
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 infer red. A
common intention to bring about a particular result may also d evelop
on the spot as between a number of persons deducible from the facts
and circumstances of a particular case. The coming toget her of the
accused to the place of occurrence, some or all of whom may be armed,
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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 SCC
779, in order to establish common intention it was o bserved 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 enterp rise, 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 mus t be
physically present at the actual commission of the crime f or 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 execut ion of
the common design, is itself tantamount to actual participation in
the ‘criminal act’. The essence of Section 34 is simultaneo us
consensus of the minds of persons participating in the crimi nal
action to bring about a particular result. Such consensus ca n be
developed at the spot and thereby intended by all of them….”
15. In Nandu Rastogi vs. State of Bihar, (2002) 8 SCC 9, with
regard to the inference for common intention this Court observ ed 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, simila r 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
SUBED ALI AND OTHERS v. THE STATE OF ASSAM
[NAVIN SINHA, J.]
not a necessary ingredient to establish common intention obse rving :-
“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 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 a bout a
particular result. Such consensus can be developed at the sp ot
and thereby intended by all of them….”
17. A similar view was taken in Nand Kishore vs. State of
Madhya Pradesh , (2011) 12 SCC 120.
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 halte d. 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, 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 Bar ek 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.
Ankit Gyan Appeal dismissed.