Calcutta High Court: A Division Bench of Joymalya Baghi and Suvra Ghosh, JJ., partly allowed a criminal appeal against the order of the trial court and thereby acquitted two out of six appellants who were convicted under Section 302 (punishment for murder) and Section 109 (punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment) read with Section 34 (acts done by several persons in furtherance of common intention) IPC.
In all, six accused were convicted and sentenced for murdering the deceased after a dispute over catching of fish. All of them appealed against the decision of the trial court. The High Court, considering the on record, was convinced that the involvement of four out of six said appellants was proved by the prosecution beyond a reasonable doubt. Consequently, the appeal qua those four appellants were dismissed and their conviction and sentence as awarded by the trial court were upheld. However, as regards the remaining two appellants, the High Court was of the opinion that they deserve to be given benefit of doubt.
Notably, the two remaining appellants, unlike others, were not found at the scene of the crime. However, alleged the prosecution, that they too shared the common intention with other appellants to commit the murder of the deceased.
Regarding “common intention” under Section 34, the Court explained thus:
“Common intention under Section 34 IPC is a species of constructive liability which renders every member of a group who shares such intention responsible for the criminal act committed by anyone of them when such an act is done in furtherance of the common intention.Common intention, however, cannot be confused with similar intention.”
It was further observed: “Although accused persons may have similar intention to commit a crime, say murder, until and unless the pre-requisites of:(a) pre-consent, (b) presence and (c) participation, in respect of each accused are established, it cannot be said that they shared common intention and be culpable for the crime committed by any of them in furtherance to such intention.”
Coming back to the instant case, the Court was of the view that although there was some evidence that the two appellants had enmity with the deceased and tried to obstruct prosecution witnesses from going to the police station, there was no evidence on record that they were present at the place of occurrence and participated in the assault and murder of the victim with other appellants.
In such view of the matter, the High Court quashed the conviction and sentence awarded to the two appellants by the trial court. [Jagan Gope v. State of W.B., 2019 SCC OnLine Cal 5589, decided on 16-12-2019]
