22 April 2019


Judgments

Supreme Court

Rajkishore Purohit Vs. State of Madhya Pradesh and Ors.

MANU/SC/0928/2017

01.08.2017

Criminal

Absence of any overt act of assault, exhortation or possession of weapon cannot be singularly determinative of absence of common intention

In present case, conviction of Respondent No. 2, under Section 302/34 of Indian Penal Code, 1860 (IPC) by Sessions Judge has been reversed by High Court by acquitting him. Appellant, brother of deceased, assails acquittal. The High Court, in appeal preferred by Respondent No. 2, observed that, no overt act of assault was attributed to him, neither was he armed, much less gave any exhortation. His mere presence was not sufficient to sustain conviction, attributing common intention. It was further reasoned that, Respondent No. 2 may have had no knowledge that, Accused No. 2 was carrying a revolver. Appellant submitted that, High Court has grossly erred in acquitting Respondent No. 2. There existed sufficient evidence to decipher common intention. Overt act by a co-accused or possession of weapons by him was not necessary to conclude existence of common intention.

Respondent No. 2 was nephew of Accused No. 3. Meeting had been called to protest for removal of Accused No. 3 from post of Mayor on allegations of corruption, with slogan "Lokman Hatao Congress Bachaao". Deceased was President of Congress Sewa Dal. Apparently, Accused were peeved with summoning of meeting. Evidence of PWs 1, 4, 5, 13 and 23 are consistent that, four Accused came together and alighted from a white Ambassador Car. Accused No. 3 identified deceased. Respondent No. 2, along with Accused Nos. 2 and 4 moved forward towards deceased. Accused No. 4 and Respondent No. 2 then exhorted to kill the deceased, at which stage Accused No. 2 pulled out a revolver and fired at deceased. In the melee that followed shooting, Accused persons fled together in car. Appellant, PW-1 was own brother of deceased and PW-5, brother-in-law. Respondent No. 2 has not urged false implication, and on contrary took the defence of alibi, which has been disbelieved by trial Court and affirmed by High Court. Taking of a false plea is an additional aggravating factor against accused.

Common intention is a state of mind. It is not possible to read a person's mind. There can hardly be direct evidence of common intention. Existence or non-existence of a common intention amongst Accused has to be deciphered cumulatively from their conduct and behaviour in facts and circumstances of each case. Events prior to occurrence as also after, and during occurrence, are all relevant to deduce, if there existed any common intention. There can be no straight jacket formula. Absence of any overt act of assault, exhortation or possession of weapon cannot be singularly determinative of absence of common intention.

In State of Rajasthan v. Shobha Ram, regarding common intention, it was observed that, it is a state of mind of an Accused which can be inferred objectively from his conduct displayed in the course of commission of crime and also from prior and subsequent attendant circumstances. Motive for assault existed because Accused was aggrieved by meeting summoned. Assault was planned in a gathering, where escape would have been easy, in chaos that would follow assault. Accused persons came together in a car to facilitate a quick get-away. Exhortation was made by Respondent No. 2, when Accused was at very close quarters to deceased. Firing was done from a distance of about 6 inches. Respondent No. 2 and Accused No. 4 provided cover at this time. There is nothing in conduct of Respondent No. 2 to draw any inference that he was taken by surprise, when co-accused opened fire. Rather than provide help to deceased and his relatives, Respondent No. 2 immediately escaped from place of occurrence in chaos that followed, indicative of his awareness of common intention. Sequence of events, and manner in which occurrence took place manifests a pre-concerted plan and a prior meeting of minds. It was not case of Respondent No. 2 that, he was taken by surprise and was unaware that, co-accused was carrying a revolver or that they had no intention to kill the deceased. If common intention by meeting of minds is established in facts and circumstances of case, there need not be an overt act or possession of weapon required, to establish common intention.

In Ramaswami Ayyangar v. State of Tamil Nadu, explaining the essence and purport of common intention, it was observed that, acts committed by different confederates in criminal action may be different but all must in one way or other participate and engage in criminal enterprise, for instance, one may only stand guard to prevent any person coming to relief of victim, or may otherwise facilitate the [commission of crime]. Such a person also commits an 'act' as much as his co-participants actually committing planned crime. Though this Court, in exercise of discretionary jurisdiction under Article 136 of Constitution, may not interfere with an order of acquittal, reversing a conviction, yet if it finds that, High Court has completely erred in appreciation of evidence, has applied wrong principles to negate common intention, and has based its conclusions on speculative reasoning, beyond defence of Accused himself, justice will demand that, acquittal is reversed. Supreme Court set aside order of acquittal passed by High Court and restored order of conviction of Respondent No. 2.

Relevant

Ramaswami Ayyangar v. State of Tamil Nadu,MANU/SC/0163/1976
: (1976) 3 SCC 779, Rajasthan v. Shobha Ram, MANU/SC/0092/2013
: (2013) 14 SCC 732

Tags : Common Intention Acquittal Validity

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