Is active involvement in the commission of offence a pre-condition for common intention? SC answers

Supreme Court: The 3-judge bench of RF Nariman, Navin Sinha and Indira Banerjee, JJ has held that 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.  If the nature of evidence displays a pre-arranged plan and acting in concert pursuant to the plan, common intention can be inferred.

BACKGROUND OF THE CASE


The Court was hearing the matter where the appellants, convicted under Section 302/34 and sentenced to life imprisonment, had sought acquittal in a case where 2 men died as a result of assault by the appellants. Out of 5, 2 accused were acquitted by the Sessions Court giving them benefit of doubt. While the eye witnesses had deposed of assault upon the two deceased by appellants nos.2 and 3 only. There was no allegation that appellant no.1 was armed in any manner or that he also assaulted any one of the two deceased. It was, hence, contended that there is no material to infer common intention with regard to appellant no.1.

COMMON INTENTION


The Court explained that 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 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 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. 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, the manner of assault, the active or passive role played by the accused, are but only some of the materials for drawing inferences.”

CONCLUSION ON FACTS


The Court took note of the facts that

  • 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 market. The assault commenced after the deceased had halted.
  • While one deceased died on the spot as a result of the brutal assault, the other 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 after which he was brutally assaulted. He was then dragged by the accused persons to the place where the first deceased lay motionless.

The Court, hence, said,

“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.”

It, hence, refused 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.

[Subed Ali v. State of Assam, 2020 SCC OnLine SC 794, decided on 30.09.2020]

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