Date of judgement:
30 September 2020
Bench:
Justice Rohinton Fali Nariman
Justice Navin Sinha
Justice K.M. Joseph
Parties:
Appellant – Subed Ali And Others
Respondent – State Of Assam
Subject
In this case, the Supreme Court upheld the judgement of the lower court and asserted that for conviction under Section 34, it is not essential to show the physical activity of assault. The existence of mens rea in furtherance of a common intention is sufficient.
Overview
- This case involved five accused, who were charged under Sections 302/34 of the IPC for causing the death of two persons. One of them died on the spot and the other passed away in the hospital. When these two deceased were returning from the market, they were assaulted by the five accused.
- Charges were framed against all five accused and the matter came before the Sessions Judge. The court of Sessions acquitted accused no. 3 and 5, giving them the benefit of the doubt. However, the rest of the accused were found guilty under Sections 302/34, on the basis of evidence and various Prosecution Witnesses (PW) statements, and were sentenced to imprisonment for life.
- The judgement was also affirmed by the Gauhati High Court. Hence, Subed Ali(accused no.1) approached the Supreme Court, praying that he was also liable for the benefit of the doubt because the facts of his case were similar to that of the acquitted persons.
- The counsel for the appellant contended that the testimonies of the witnesses were inconsistent. Hence, the conviction was unjustified. He also pointed out that the incident took place after sunset, hence due to the darkness; the identification of the accused is questionable. He also submitted that there is no evidence to prove that accused was armed or that he assaulted the deceased.
- The counsel for the State argued that the testimony of eyewitnesses is consistent with regard to the participation of the appellant. Also, common intention can be established based on the fact that the appellant was waiting for the deceased to assault them. He also asserted that the witness already knew the appellant before the crime and hence had no difficulty identifying him.
Issues
- Is the accused no. 1 entitled to benefit of the doubt?
- Whether active participation in the offence is essential to bring home a conviction under Section 34 of the IPC?
Legal Provisions
- Section 34 of the Indian Penal Code 1860 (IPC) – Acts done in the furtherance of common intention.
- Section 302 of the IPC – Punishment for murder.
Judgement Analysis
- The Supreme Court upheld the acquittal of accused no.3 and 5. After a careful perusal of Section 34 of the IPC, the court said that common intention consists of several persons acting in unison to achieve a common purpose, though their roles may be different. Once the common intention is established, their role being active or passive is irrelevant.
- It also stated that a conviction for common intention is based on the principle of vicarious liability, under which a person is held answerable for the acts of others with whom he shared the common intention. Under such circumstances, the presence of mens rea (guilty mind) is sufficient for getting a conviction without having to prove the actual participation in the assault.
- The Court reiterated that active participation in the assault is not essential under common intention. If the nature of evidence proves a prearranged plan and acting in concert according to the plan, common intention can be inferred. The Court relied upon the 1976 case of Ramaswami Avyangar V. The State of T.N.
- The Court referred to Nandu Rastogi V. The State of Bihar (2002), wherein it was stated that to attract Section 34 IPC, it is not compulsory that each accused assaulted the deceased. It is sufficient if they shared a common intention to commit the offence and that each one played his assigned role by doing separate acts.
- As for the present case, the Court held that the appellant having the company of other armed accused was waiting for the deceased person to return from the market. Also, he was the one to halt the deceased, which resulted into an argument and led to the assault. This is enough to prove the element of common intention. Moreover, the eye witness confirms that the appellant chased the deceased and later brutally assaulted him. Under such circumstances, the appellant cannot be entitled to benefit of doubt.
- Hence, the judgement of the trial court was upheld by the Apex Court and the plea of pardon by the appellant was rejected. The Court thereby refrained from interfering with the conviction, awarded punishment and dismissed the appeal.
Conclusion
Section 34 of the IPC lays down the principle of joint liability. It says that all the persons charged under this Section for an offence do not necessarily have to commit the same or identical act. Their acts may be different but the element of guilty intention to commit the offence must be shared by all to attract this Section.
This Section is only a rule of evidence and does not create a substantive offence. It just lays down that if 2 or more persons do an act jointly with the common purpose, then each person shall be held liable as if that act was done by him individually. Under this principle, the conviction of the appellant, in this case, was upheld by the Supreme Court.
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