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Presence of Mental element or Intention isufficient for conviction- SC



Subed Ali and Ors. v. State of Assam , Criminal Appeal No.1401 of 2012, September 30, 2020


Counsel for Appellants: Advocate Gaurav Agrawal


The Hon’ble Supreme Court comprising of Justice R.F.Nariman, Justice Navin Sinha, and Justice Indira Banerjee held in a case that the presence of the mental element or the intention to commit the act if cogently established is sufficient for conviction

Facts:

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 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.

Questions of law:

The questions of law in the case was:

(i) Whether the acquittal of two of the five accused on the basis of benefit of doubt can be regarded as a ground for the acquittal of the other accused.

(ii) Whether a person can be charged for common intention under section 34 when he has not committed any injury.

Contentions:

Learned counsel for the appellants submitted that (i) 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. 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. (ii) 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.

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 co 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 and lay in wait for the two deceased who were accosted while returning from the market and the assault followed leading to the death of the two.

Judgment:

The Court while referring to its judgment in Karnail Singh v. State of Punjab explained the intrinsics of section 34 in the following words:

The acquittal of the two co accused 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.(Para 8)

The court while bringing out the distinction as to why the three appellants should not be acquitted noted the following

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 parties were known to each other from before and therefore identification in the dusk cannot be doubted.

In this regard, the court held,

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. (Para12)

The court moved on further to explain as to how appellant no.1 shared common intention with appellant no. 2 and appellant no.3. while referring to its judgment in Ramaswami Avyangar vs. State of T.N, Nandu Rastogi vs. State of Bihar, Surender Chauhan vs. State of Madhya Pradesh and Nand Kishore vs. State of Madhya Pradesh.

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 role played by the accused, are but only some of the materials for drawing inferences.(Para 13)

Applying this to the facts of the present case, the court observed:

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, 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.

Resultantly, the appeal was dismissed.


Kalidharun K M.

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