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Common Intention u/s 34 IPC exists even when roles of Accused are Different: SC reiterated

“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.”(Para.33)

NETAJI ACHYUT SHINDER (PATIL) & ANR. VERSUS THE STATE OF MAHARASHTRA

[Criminal Appeal No. 121 of 2019]

Decided on March 23, 2021


This case was decided by a bench of the Supreme Court, consisting of Justice L Nageshwar Rao, Justice Hemant Gupta and Justice S Ravindra Bhat.

This case arises as an appeal from the judgment of the High Court, which convicted three accused under Section 302, read with Section 34, for the murder of Suhas. According to the facts of the case, an FIR was registered 5:30 PM, and another one was registered at 11:45 PM on the day of the incident. The trial court, which had acquitted two of the three accused, treated the FIR received at 5:45 PM as the final FIR, and discarded the one received at 11:45PM. The trial court based its decision predominantly on the medical evidence, which negated any role of the two acquitted accused. As far as the convicted accused, Samadhan, is concerned, he was convicted on account of his participation with the absconding accused.


The High Court, acting as the appellate court, reversed the acquittal, and convicted all three accused, on overall appreciation of prosecution evidence. It contended that the trial court had completely overlooked the depositions of the eyewitnesses.

Mr. S Nagamuthu, learned senior counsel, appearing on behalf of the accused, argued the following. He urged that the telephonic information received at 5:30 PM is the final FIR. In this information, the informant had stated that there was an attack by one motorcycle ridden by two persons. The counsel believed that the police had spun their own story. He relied on the case of Pradeep V. State of Maharashtra and Nilesh Naik V. State of Goa, to support his argument that it is the first intimation of the crime that constitutes the FIR. If there is a formal FIR registered later, it lacks credibility, as the delay affords considerable leeway to the police to cook up fictions and falsely implicate innocent persons.


The counsel also appreciated the reliance placed on medical evidence. Further, he supported the trial court’s decision is disregarding the oral testimonies, as it was pointed out that the witnesses were unable to explain their presence at the crime scene, and why they took no steps to report it to the police. The witnesses also were known to the deceased, and were alleged to have motive to implicate the accused.


Even the dying declaration given by the deceased was incredible, as it was not corroborated by medical evidence. Given the critical nature of his injuries, it was not possible for him to make any oral statement. Some procedural discrepancies were also pointed out by the counsel, relating to the inquest and seizure panchnamas.


Lastly, the counsel argued that the prosecution was unable to prove any prior meeting of the minds among the accused, to implicate them under Section 34.


Learned counsel for the state emphasized that the trial court acted in complete error, in overlooking the ocular evidence. The witnesses were consistent in their testimonies. He urged that the trial court had ignored vital pieces of evidence, and proceeded on its suspicions. The conclusion that absence of any physical injuries pertaining to blows and beatings indicated that there was no common intention, was simplistic and wrong.


The first issue is with regard to the FIR. The apex Court relied on TT Antony V. State of Kerala, wherein it was held that a cryptic phone call without complete information cannot always be treated as an FIR. In Surajit Sarkar V. State of West Bengal, it was held that the essentials of reading over of the information to the informant, and taking the informant’s signature, are not present in telephonic information. The information received at 5:30 PM was incomplete and vague. The Court concluded that the High Court was correct in disregarding the information given at 5:30 as the FIR. The details of the event were fully set out only at 11:45 PM, making that the FIR.


Coming to the implication that the police cooked up a false story, the Court observed that inclusion or omission of certain facts cannot lead to the entire falsification of the prosecution evidence. Often times, witnesses’ rendition of the events may not be accurate, and this may be due to several factors such as angles, and distance.


Coming to the question of reliability of the eyewitnesses and the absence of any injury corroborating the evidence of the eyewitnesses, the Court observed that minor inconsistencies found with respect to details are inconsequential. The overall weight of the evidence clearly points to the role of the accused in attacking Suhas. If no injury can be attributed to an accused, it cannot be concluded the appellants should be acquitted. In this case, the eyewitness testimonies were found to be consistent. As such, the absence of any injury attributed to the accused does not diminish their role in the incident.


Next was the issue of whether there was common intention under Section 34. The Court stated that common intention differs from case to case, depending on facts and circumstances of each. This was highlighted in Ramaswami Avyangar V. State of TN, that,“…the acts committed by different confederates may be different, but all must, in one way or the other, participate and engage in the criminal enterprise.”


In Nandu Rastogi V. State of Bihar, the Court held that when each companion plays a different role by doing separate acts, similar or diverse, in furtherance of a common offence, it can be said that there is common intention.


In another case of Subed Ali V. State of Assam, it was stated that,

“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.”(Para.33)


In the present case, the physical presence of all accused at the crime scene, taken together with the depositions of the witnesses about their role, clearly establishes that there was common intention to commit the offence.


The last issue was whether the High Court fell into error in re-appreciating the evidence and arriving at a different conclusion from the trial court. In Sanwat Singh V. State of Rajasthan, the scope and powers of the appellate court were dealt with, in cases where trial court records acquittal. It was held that the High Court has full power to review the evidence and reach the conclusion that upon the evidence, the acquittal should be reversed. The same was held in Balbir Singh V. State of Punjab.


Again, in Babu v. State of Kerala this court held that “findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material” or if they are ‘against the weight of evidence’ or if they suffer from the “vice of irrationality” [Para 37].


Based on the above observations and analysis, the Supreme Court was in agreement with the decision of the High Court to reverse the acquittal. The eyewitnesses clearly established the participation of the accused, in achieving the common goal of carrying the murderous assault on Suhas.




Navyaa Shukla

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