RAJKISHORE PUROHITversusSTATE OF MADHYA PRADESH AND OTHERS

                       [2017] 7 S.C.R. 501


                    RAJKISHORE PUROHIT                              A
                                v.
         STATE OF MADHYA PRADESH AND OTHERS
                (Criminal Appeal No. 1292 of2017)
                        AUGUST 01, 2017                             B

          [RANJAN GOGOi AND NAVIN SINHA, JJ.J

        Penal Code, 1860:

         ss.302134 - Political rivalry - Four accused - Deceased C
 campaigning for removal of accused - Accused annoyed with the
 summoning of meeting called by deceased to protest for removal of
 A-3 from the post of Mayor - All accused came to place of meeting
 in car - A-2 was armed with gun - He fired at the deceased while
 others provided cover - Trial court convicted A-2 uls.302 while
 convicting others u/ss.302134 - Acquittal of accused-respondent D
 no.2 by High Court on the ground that no overt act of assault was
 attributed to him and that he was not armed - Appeal against
 acquittal by brother of the deceased - Held: Motive for assault
 existed because accused were aggrieved by the meeting summoned
 - The sequence of events, and the manner in which the occurrence E
 took place, manifested a pre-concerted plan and a prior meeting of
 minds - it was not the case of respondent no.2 that he was taken by
  surprise and was unaware that the co-accused was carrying a
  revolver or that they had no intention to kill the deceased - Common
· intention by meeting of minds is established in the facts and
  circumstances of the case - Absence of overt act or possession of F
  weapon was not fatal to the prosecution case against respondent
  no.2 - Order of conviction passed by trial court restored.

        Allowing the appeal, the Court

         HELD: 1. The evidence of PWs 1, 4, 5, 13 and 23 were       G
 consistent that the four accused came together and alighted from
 a car. Accused no.3 identified the deceased. Respondent no. 2,
 along with accused nos.2 and 4 moved forward towards the
 deceased. Accused no.4 and respondent no.2 then exhorted to
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                                501
502           SUPREME COURT REPORTS                     [2017] 7 S.C.R.


A kill the deceased, at which stage accused no.2 pulled out a revolver
  and fired at the deceased. In the melee that followed the shooting,
  the accused persons fled together in the car. The appellant, PW-I
  was the brother of the deceased and PW-5, the brother-in-law.
  There is no reason why they should be lying and falsely naming
B another as the assailants, shielding the real accused, especially
  when they were eye witnesses to the occurrence. Respondent
  no.2 has not urged false implication, and on the contrary took the
  defence of alibi, which has been disbelieved by the trial court and
  affirmed by the High Court: The taking of a false plea is an
  additional aggravating factor against the accused. [Para 9) [505-
C G-H; 506-A-BJ
              2. Common intention is a state of mind. It is not possible
      to read a person's mind. There can hardly be direct evidence of
      common intention. The existence or non-existence of a common
      intention amongst the accused has to be deciphered cumulatively
D     from their conduct and behavior in the facts and circumstances
      of each case. Events prior to the occurrence as also after, and
      during the occurrence, are all r~levant to deduce jf there existed
      any common intention. There can be no straight jacket formula.
      The absence of any overt act of assault, exhortation or possession
      of weapon cannot be singularly determinative of absence of
 E
      common intention. [Para IOI [506-CJ
            3. Motive for the assault existed because the accused
   were aggrieved by the meeting summoned. The assault was
   planned in a gathering, where escape would have been easy, in
   the chaos that would follow the assault. The accused persons
 F
   came together in a car to facilitate a quick get-away. Exhortation
   was made by respondent no.2, when the accused were at very
   close quarters to the deceased. The firing was done from a
   distance of about 6 inches. The respondent no.2 and accused
   no.4 provided cover at this time. There is nothing in the conduct
 G of respondent no.2 to draw any inference that he was taken by
   surprise, when the co-accused opened fire. Rather than provide
   help to the deceased and his relatives, respondent no.2
   immediately escaped from the place of occurrence in the chaos
   that followed, indicative of his awareness of the common intention.
 H The sequence of events, and the manner in which the occurrence
  RAJKISHORE PUROHIT v. STATE OF MADHYA PRADESH                      503
                  AND OTHERS

took place, manifests a pre-concerted plan and a prior meeting       A
of minds. It was not the case of respondent no.2 that he was
taken by surprise and was unaware that the co-accused was
carrying a revolver or that they had no intention to kill the
deceased. If common intention by meeting of minds is established
in the facts and circumstances of the case, there need not be an     B
overt act or possession of weapon required, to establish common
intention. (Para 121 [506-H; 507-A-DI
         4. Though this Court, in exercise of discretionary
jurisdiction under Article 136 of the Constitution, may not
interfere with an order of acquittal, reversing a conviction, yet if
it finds that the High Court has completely erred in appreciation C
of evidence, has applied the wrong principles to negate common
intention, and has based its conclusions on speculative reasoning,
beyond the defence of the accused himself, justice will demand
that the acquittal is reversed. The order of acquittal passed by
the High Court is set aside and the order of conviction of D
respondent no.2 under Section 302/34 IPC passed by the Sessions
Judge is restored. (Para 14] (507-F-Hl
     State of Rajasthan v. Shobha Ram (2013) 14 SCC 732
     : 12013) 1 SCR 327; Ramaswami Ayyangar v. State of
     Tamil Nadu (1976) 3 SCC 779 : [19761 Suppl. SCR                 E
     580 - relied on.
                      Case Law Reference
       (2013] 1 SCR 327           relied on        Para 11
       (1976) Suppl. SCR 580      relied on        Para 13           F


       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.1292 of2017.
       From the Judgment and Order dated 22.08.2014 of the High      G
Court of Judicature at Madhya Pradesh, Jabalpur in Criminal Appeal
No. 2816 of2000.
       S.P. Singh, Sr. Adv., D.S. Parmar, Ms. Radhika Dwivedi,
Ms. Abha R. Sharma, Advs. for the Appellant.
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504            SUPREME COURT REPORTS                          [2017] 7 S.C.R.


A            Ms. Prachi Mishra, C.D. Singh, Ms. Pragya Garg, Chaitanya,
      Ms. Ehtesham Hashmi, S. K. Verma, B. S. Rajesh Agrajit, Sanjay
      Samdarshi, Ms. Jyoti Rana, Sanjai Kumar Pathak, Advs. for the
      Respondents.
              The Judgment of the Court was delivered by
B             NAVIN SINHA, J. 1. Leave granted.
              2. The conviction ofrespondent no.2, under Section 302/34 IPC,
      by the Sessions Judge, Sagar, in Sessions Trial No. 369 of 1997, has
      been reversed by the High Court in appeal, acquitting him. The appellant,
      brother of the deceased, assails the acquittal.
 c
              3. Lokman Khatik, accused no.3, was peeved with the meeting
      being held for his removal from the post of Mayor. The deceased was
      the President of the Congress Sewa Dal, spearheading the campaign.
      The trial court from the evidence arrived at the finding that all the four
      accused came together to the place of occurrence in a white ambassador
 D    car. Accused no.3 identified the deceased to Jitendra@ Jittu, accused
      no.2. Thereafter, respondent no.2 accompanied by the latter and accused
      no.4, Bhupendra, proceeded towards the deceased. Accused no.2 took
      out a revolver from his waist and fired at the deceased while the other
      two accused provided cover. All the four accused then left the place of
 E    occurrence in the ambassador car. The deceased died on the way to the
      hospital. The plea of alibi by respondent no.2 was disbelieved.
              4. Accused no.2 was convicted under Section 302, IPC to Life
      imprisonment and rigorous imprisonment for one year under Section
      25(l)(a) of the Arms Act. He is stated to have served out his sentence.
      Respondent no.2 and the other accused were convicted to Life
 F
      imprisonment under Section 302/34 IPC.
               5. The High Court, in the appeal preferred by respondent no.2,
      acquitted him, on the reasoning that no overt act of assault was attributed
      to him, neither was he armed, much less gave any exhortation. His mere
 G    presence was not sufficient to sustain the conviction, attributing common
      intention. It was further reasoned that respondent no. 2 may have had
      no knowledge that accused no.2 was carrying a revolver.
              6. The submission on behalf of the appellant was that the High
      Court has grossly erred in acquitting respondent no.2. There existed
      sufficient evidence to- decipher common intention. Overt act by a
 H
           •
 RAJKISHORE PUROHIT v. STATE OF MADHYA PRADESH                                 505
           AND OTHERS [NAVIN SINHA, J.]

co-accused or possession of weapons by him was not necessary to                A
conclude the existence of common intention. There has been inadequate
appreciation of evidence to erroneously conclude lack of common
intention. A well reasoned order of the Trial Court has erroneously been
set aside on a presumptive reasoning based on conjectures and surmises
beyond the defence ofrespondent no.2 himself, that he may have been
                                                                               B
unaware of the fact that the co-accused was possessed of a revolver. It
has resulted in grave miscarriage of justice, warranting interference by
this Court.
        7. Learned counsel for respondent no. 2 submitted that his mere
presence at the place of occurrence along with other co-accused was
not sufficient to infer common intention. The fact that they may have          c
come together to the place of occurrence was also not sufficient. There
is no positive evidence that they all left together after the assault in the
same car. No overt act had been attributed to him and neither was he
possessed of any weapon. The High Court has held that he was not
aware of the fact that the co-accused was carrying a revolver. There           D
was inadequate evidence that he had moved forward with co-accused
towards the deceased after which the assault took place.
        8. We have considered, the respective submissions, and the
materials on record. The order of acquittal, in the facts and circumstances
of the case, is unsustainable, and deserves to be set aside for reasons        E
discussed hereinafter.
        9. Respond~nt no.2 was the nephew of accused no.3. The
meeting had been called to protest for removal of accused no.3 from the
post of Mayor on allegations of corruption, with the slogan "Lokman
Hatao Congress Bachaao". The deceased was the President of the                 F
Congress Sewa Dal. Apparently the accused were peeved with the
summoning of the meeting. The evidence of PWs I, 4, 5, 13 and 23 are
consistent that the four accused came together and alighted from a white
Ambassador Car. Accused no.3 identified the deceased. Respondent
no.2, along with accused nos.2 and 4 moved forward towards the
deceased. Accused no.4 and respondent no.2 then exhorted to kill the           G
deceased, at which stage accused no.2 pulled out a revolver and fired at
the deceased. In the melee that followed the shooting, the accused
persons fled together in the car. The appellant, PW- I was the own
brother of the deceased and PW-5, the brother-in-law. There is no
reason why they should be lying and falsely naming another as the              H
506            SUPREME COURT REPORTS                         [2017] 7 S.C.R.



A     assailants, shielding the real accused, especially when they were eye
      witnesses to the occurrence. Respondent no.2 has not urged false
      implication, and on the contrary took the defence of alibi, which has
      been disbelieved by the trial court and affirmed by the High Court. The
      taking of a false plea is an additional aggravating factor against the
      accused.
B
               10. Common intention is a state of mind. It is not possible to
      read a person's mind. There can hardly be direct evidence of common
      intention. The existence or non-existence of a common intention amongst
      the accused has to be deciphered cumulatively from their conduct and
      behavior in the facts and circumstances of each case. Events prior to
 c    the occurrence as also after, and during the occurrence, are all relevant
      to deduce ifthere existed any common intention. There can be no straight
      jacket formula. The absence of any overt act of assault, exhortation or
      possession of weapon cannot be singularly determinative of absence of
      common intention.
D             11. Though judicial precedents with regard to common intention
      stand well entrenched, it will be sufficient to refer State of Rajastha11
      vs. Shobha Ram, (2013) 14 SCC 732, observing as follows :-
            "l 0. Insofar as common intention is concerned, it is a state of
            mind of an accused which can be inferred objectively from his
 E          conduct displayed in the course of commission of crime and also
            from prior and subsequent attendant circumstances. As observed
            in Hari Ram v. State of U.P.§. (SCC p. 622, para 21 ), the existence
            of direct proof of common intention is seldom available and,
            therefore, such intention can only be inferred from the
 F          circumstances appearing from the proved facts of the case and
            the proved circumstances. Therefore, in order to bring home the
            charge of common intention, the prosecution has to establish by
            evidence, whether direct or circumstantial, that there was plan or
            meeting of mind of all the accused persons to commit the offence
            before a person can be vicariously convicted for the act of the
 G          other."
              12. Motive for the assault existed because the accused were
      aggrieved by the meeting summoned. The assault was planned in a
      gathering, where escape would have been easy, in the chaos that would

 H
 RAJKISHORE PUROHIT v. STATE OF MADHYA PRADESH                                 507
          AND OTHERS [NAVIN SINHA, J.]

follow the assault. The accused persons came together in a car to A
facilitate a quick get-away. Exhortation was made by respondent no.2,
when the accused were at very close quarters to the deceased. The
firing was done from a distance of about 6 inches. The respondent no.2
and accused no.4 provided cover at this time. There is nothing in the
conduct ofrespondent no.2 to draw any inference that he was taken by
                                                                            B
surprise, when the co-accused opened fire. Rather than provide help to
the deceased and his relatives, respondent no.2 immediately escaped
from the place of occurrence in the chaos that followed, indicative of his
awareness of the common intention. The sequence of events, and the
manner in which the occurrence took place, manifests a pre-concerted
plan and a prior meeting of minds. It was not the case of respondent c
no.2 that he was taken by surprise and was unaware that the co-accused
was carrying a revolver or that they had no intention to kill the deceased.
If common intention by meeting of minds is established in the facts and
circumstances of the case, there need not be an overt act or.possession
of weapon required, to establish common intention.
                                                                            D
          13. In Ramaswami Ayyangar vs. State of Tamil Nad11, {1976)
3 SCC 779, explaining the essence and purport of common intention, it
was observed as follows :-
       "12 ..... The acts committed by different confederates in the
      criminal action may be different but all must in one way or the          E
      other participate and engage in the criminal enterprise, for instance,
      one may only stand guard to prevent any person coming to the
      relief of the victim, or may otherwise facilitate the [commission
      of crime]. Such a person also commits an 'act' as much as his co-
      participants actually committing the planned crime."
                                                                           F
         14. Though this Court, in exercise of discretionary jurisdiction
under Article 136 of the Constitution, may not interfere with an order of
acquittal, reversing a conviction, yet if it finds that the High Court has
completely erred in appreciation of evidence, has applied the wrong
principles to negate common intention, and has based its conclusions on
speculative reasoning, beyond the defence of the accused himself, justice G
will demand that the acquittal is reversed. We, therefore, set aside the
order of acquittal passed by the High Court and restore the order of
conviction of respondent no.2 under Section 302/34 IPC passed by the
Sessions Judge. Respondent no.2 has remained in custody only for 3
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508              SUPREME COURT REPORTS                     [2017] 7 S.C.R.



A     years, 10 months and 7 days. He is directed to surrender forthwith for
      serving out the remaining period of his sentence.
                15. The appeal is allowed.


      Devika Gujral                                            Appeal allowed.