It is not necessary that the accused must be actively involved in assault to convict him on the ground of common intention: SC

Subed Ali v. The State of Assam

Criminal Appeal No. 1401 of 2012 decided on September 30, 2020

Bench: RF Nariman, Navin Sinha, Indira Banerjee, JJ.

Facts:

The accused waited along with the other two accused at the crime scene who were armed. The two deceased were assaulted while they were returning from the market. When the deceased tried to flee the accused chased them. One of the deceased died on the spot and the other one who was severely injured succumbed to the injuries later in the hospital. The three accused were convicted in a murder case under Section 302/34 of the Indian penal Code, 1860 (IPC) by the Sessions Judge and the conviction has been confirmed by the High Court as well.

Hence, the present appeal was filed by the appellants. One of the accused contended that as he did not commit any physical assault on the deceased, he cannot be said to have shared common intention with the other accused who are liable for their individual acts of assault upon the two deceased.

Issue:

Whether the accused is entitled to acquittal in the conviction under Section 309/34 of the IPC on the ground that as he was not actively involved in the assault of the deceased hence he cannot be convicted on the basis of common intention?

Held:

The Court while dismissing the appeal held that if the nature of the evidence displays a prearranged plan and acting in concert pursuant to the plan, common intention can be inferred. It is not necessary that the accused must be actively involved in the physical activity of assault to convict him on the ground of common intention.

The court observed that common intention consists of several persons acting in unison to achieve the common purpose, though their roles might be different. It is irrelevant whether the role is active or passive, once the common intention is established. There can hardly be a direct evidence of common intention, it is to be drawn from the facts and circumstances of the case. The foundation for conviction on the basis of common intention is based on the principle of vicarious liability where the person is held answerable for the acts of the persons with whom he had shared common intention. The presence of the mental element or the intention to commit act if cogently established is sufficient for conviction without any actual participation in the assault. Therefore, it is 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.

The accused waited along with the other two armed accused at crime scene and when the deceased tried to flee, the accused also chased him along with the other two accused. Hence, it can be inferred that the coming together of the accused to the place of occurrence along with the armed accused and the active or passive role played by the accused in the assault, are enough evidence with regard to the existence of common intention between the three accused.