SUBED ALI AND OTHERSversusTHE STATE OF ASSAM

                        [2020] 8 S.C.R. 731                            731


                   SUBED ALI AND OTHERS                                A
                                 v.
                     THE STATE OF ASSAM
                (Criminal Appeal No. 1401 of 2012)
                      SEPTEMBER 30, 2020                               B
        [ROHINTON FALI NARIMAN, NAVIN SINHA
              AND INDIRA BANERJEE, JJ.]
       Penal Code, 1860 – s. 302/34 – The prosecution alleged that
two persons were assaulted while they were returning from the
                                                                       C
market on bicycles along with others – One of them died on the
spot and the other one died in the hospital – The appellants-
accused were convicted u/s. 302/34 and sentenced to life
imprisonment – Originally there were five named accused persons
– Accused nos. 3 and 5 were acquitted on the benefit of doubt –
There is no appeal against their acquittals – Appellants contended     D
that if two accused have been acquitted giving them benefit of
doubt on basis of the same evidence, the conviction of the
appellants is unjustified – On appeal, held: The P.W. 5, 6, 7 and 9
deposed that appellant no. 1 stopped the deceased, then appellant
no. 2 assaulted one of them who died on the spot and appellant
                                                                       E
no. 3 assaulted the other person/victim and injured him – When
the other victim tried to flee from the place of occurrence, he was
chased by accused persons and caught and was brutally assaulted
– The other victim later died in the hospital – There is 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   F
with the acquitted, merely because no appeal was preferred – As
far as appellant no. 1 is concerned, the appellant no. 1 had stopped
the two deceased who were returning from the market and the
assault commenced after the deceased had halted – No further
evidence is required with regard to existence of common intention
                                                                       G
in appellant no. 1 to commit the offence in question – Resultantly,
there is no reason to interfere with the conviction and sentence of
the appellants.
      Criminal law – Common intention – Held: Common intention
consists of several persons acting in unison to achieve a common
                                                                       H
                                731
732           SUPREME COURT REPORTS                    [2020] 8 S.C.R.


A     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
B
      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.
             Dismissing the appeal, the Court
C            HELD: 1. Similar to deposition of PW-5, PW-6, 7 and 9
      deposed that appellant no.1 stopped the deceased, appellant no.
      2 assaulted one of the deceased with a ‘Dao’, who died on the
      spot. Appellant no.3 assaulted the other person and injured him.
      The injured tried to flee from the place of occurrence. He was
      chased by the accused persons and caught near a house where
D
      he was brutally assaulted. He was then dragged to the spot where
      deceased was lying. The injured was taken to the hospital and
      died the same night. 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
E     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. [Para 11]
      [737-H; 738-A-C]
             2. This Court, therefore, find no reason to doubt the
F     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. [Para 12][738-C-D]
             3. That leaves for consideration of this Court the
G     submission that the appellant no.1 is entitled to acquittal as he
      cannot be said to have shared any common intention with
      appellants nos. 2 and 3 and 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 or passive is irrelevant,
H     once common intention is established. There can hardly be any
     SUBED ALI AND OTHERS v. THE STATE OF ASSAM                       733


direct evidence of common intention. It is more a matter of           A
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
                                                                      B
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       C
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 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
                                                                      D
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][738-D-H; 739-A]
      4. Coming to the facts of the present case, the appellant       E
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. One
died on the spot as a result of the brutal assault. The other one     F
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 a house where he was
brutally assaulted. The injured was then dragged by the accused
persons to the place where the deceased was laid. No further          G
evidence is required with regard to existence of common
intention in appellant no.1 to commit the offence in question.
This Court, 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. [Para 18][740-D-F]                                   H
734            SUPREME COURT REPORTS                         [2020] 8 S.C.R.


A           Karnail Singh v.State of Punjab 1954 SCR 904 ;
            Ramaswami Avyangar v. State of T.N. (1976) 3 SCC
            779 : [1976] 3 SCR 876 ; Nandu Rastogi v. State of
            Bihar (2002) 8 SCC 9 : [2002] 3 Suppl. SCR 30 ;
            Surender Chauhan v. State of Madhya Pradesh (2000)
            4 SCC 110 : [2000] 2 SCR 515 ; Nand Kishore v. State
B           of Madhya Pradesh (2011) 12 SCC 120 : [2011] 7
            SCR 1152 – relied on.
                              Case Law Reference
      [1954] SCR 904                      relied on             Para 8
C     [1976] 3 SCR 876                    relied on             Para 14
      [2002] 3 Suppl. SCR 30             relied on              Para 15
      [2000] 2 SCR 515                    relied on             Para 16
      [2011] 7 SCR 1152                   relied on             Para 17
D           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 1401 of 2012.
            From the Judgment and Order dated 03.04.2012 of the High
      Court of Gauhati in Crl. Appeal No. 32 of 2009.
           Gaurav Agrawal, Ms. Charu Ambwani, Tayenjam Momo Singh,
E     Debojit Borkakati, Advs. for the appearing parties.
            The Judgment of the Court was delivered by
            NAVIN SINHA, J.
             1. The conviction of the appellants under Section 302/34 of the
F     Indian Penal Code (for short, “I.P.C.”) by the Sessions Judge, North
      Lakhimpur, has been affirmed by the High Court, sentencing them to
      life imprisonment along with fine and a default stipulation. Thus, 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
G
      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. We are not informed of any appeal preferred
H     against their acquittals.
      SUBED ALI AND OTHERS v. THE STATE OF ASSAM                              735
                   [NAVIN SINHA, J.]

       3. Shri Gaurav Agrawal, learned counsel for the appellants,            A
submitted that 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. 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        B
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. 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
                                                                              C
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. The recoveries
attributed to the appellants has been disbelieved. It was lastly submitted
that no charge had been framed under Section 34 IPC.                          D
       4. 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
                                                                              E
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.
       5. We have considered the submissions on behalf of the parties.
The two deceased were returning from the market accompanied by
P.Ws. 5, 6, 7 and 9. They were intercepted by the appellants after which      F
the assault followed. Abdul Barek died on the spot. The post mortem
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            G
      the amputated part was incised looking of sizes 6cm. x 4cm. a
      clean bevelled sharp cut was seen in the both bone of the leg.
      The muscles, major blood vessels were also damaged through
      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.”                                                    H
736            SUPREME COURT REPORTS                        [2020] 8 S.C.R.


A           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 6th upper and lower limbs. The body
            was very pale, multiple sharp cuts in 6th lower limbs. The left
            foot was cut about 1st above the ankle joint and separate from
B           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
C                   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
D                   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
E                   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 2/3rd separation of ankle of the right foot.
F                   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.”
G            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,
H     naming five accused including the appellants.
     SUBED ALI AND OTHERS v. THE STATE OF ASSAM                             737
                  [NAVIN SINHA, J.]

       8. Charges were framed against the five accused under Sections       A
147, 341 and 302 IPC. The charge under Section 341 IPC was held
not to have been proved against the accused. The Sessions 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 presence
and participation. Since the number of accused persons now fell below
five, conviction of the appellants followed under Section 302/34 IPC.       B
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
                                                                            C
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. 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          D
      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 fact that      E
both Babul Ali and Asgar Ali have not been examined by the prosecution
is considered irrelevant in view of the evidence of the Investigating
Officer P.W. 12 when confronted by the prosecution, he denied that
P.W.1 had ever made any such statement to him during investigation.
       10. P.W. 5 was an eye witness accompanying the two deceased.         F
He deposed that there was sufficient light at the time of occurrence
for identification. In his cross examination he deposed that appellant
no.1 stopped the two deceased after which appellant no.2 assaulted
Abdul Barek on the leg with a sharp cutting weapon. The second
deceased, Abdul Motin tried to flee after he was injured by appellant
no.3, but was chased by the accused and caught near the house of            G
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 with a
‘Dao’, who died on the spot. Appellant no.3 assaulted Abdul Motin and       H
738             SUPREME COURT REPORTS                           [2020] 8 S.C.R.


A     injured him. The injured tried to flee from the place of occurrence. He
      was chased by the accused persons and caught near the house of
      Mamud Ali where he was brutally assaulted. He was then dragged to
      the spot where Abdul Barek was lying. The injured was taken to the
      hospital and died the same night. The deposition of P.W.6 in his cross
      examination with regard to darkness affecting identification is
B     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.
C           12. 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.
             13. That leaves for our consideration the submission of Shri
D     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 and
      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 or passive is
      irrelevant, once common intention is established. There can hardly be
E     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
F
      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.
G     If the nature of evidence displays a pre-arranged 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,
H
     SUBED ALI AND OTHERS v. THE STATE OF ASSAM                                739
                  [NAVIN SINHA, J.]

the manner of assault, the active or passive role played by the accused,       A
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 observed as
follows :-
      “12…. The acts committed by different confederates in the                B
      criminal action may be different but all must in one way or the
      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 execution
      of the common design. Such a person also commits an “act” as             C
      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 must be
      physically present at the actual commission of the crime for the
      purpose of facilitating or promoting the offence, the commission         D
      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 about a particular result. Such consensus can be         E
      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 observed as
follows :-
                                                                               F
      “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          G
      intention to commit the offence and in furtherance thereof each
      one played his assigned role by doing separate acts, similar 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        H
740                SUPREME COURT REPORTS                         [2020] 8 S.C.R.


A     not a necessary ingredient to establish common intention observing :-
            “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
B           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 about a
            particular result. Such consensus can be developed at the spot
            and thereby intended by all of them….”
C         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
D     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
E     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. We, therefore, find no reason to grant any benefit to
F     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.

G     Ankit Gyan                                                   Appeal dismissed.




H