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Common Intention

KANDE VENKATESH GUPTA ,
  13 August 2008       Share Bookmark

Court :
Supreme Court
Brief :
common intention pre-supposes prior concert. Care must be taken not to confuse same or similar intention with common intention; the partition which divides their bonds is often very thin, nevertheless the distinction is real and substantial, and if overlooked will result in miscarriage of justice. To constitute common intention, it is necessary that intention of each one of them be known to the rest of them and shared by them. Undoubtedly, it is a difficult thing to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of persons. But however difficult may be the task, the prosecution must lead evidence of facts, circumstances and conduct of the accused from which their common intention can be safely gathered.
Citation :
Delivered on 12-08-2008 not yet reported
REPORTABLE



IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 193 OF 2005



Aizaz & Ors. ...Appellants

Versus

State of U.P. ...Respondent



JUDGMENT



Dr. ARIJIT PASAYAT, J.



1. Appellants call in question legality of the judgment

rendered by a Division Bench of the Allahabad High Court

upholding the conviction of the appellants for offence

punishable under Section 302 of the Indian Penal code, 1860

(in short the `IPC'). So far as the appellant Aizaz- A1 is
concerned, the High Court also upheld his conviction for

offence punishable under Section 307 read with Section 34

IPC. The two other appellants were found guilty of offence

punishable under Section 302 read with Section 34 IPC and

Section 307 read with Section 34 IPC. It is to be noted that

four persons faced trial though the learned VIIth Additional

Sessions Judge, Meerut found A-1 to A-3 guilty. The High

Court directed acquittal of Imlak (A-4).



2. Background facts as projected by prosecution in a

nutshell are as follows:



All the four accused are inter related and they lived in

village Ikla Rasoolpur, police station Parichhatgarh, district

Meerut. Informant of the case Bashir Mohammed (P.W.1) as

well as Ismail (hereinafter referred to as the `deceased') also

lived in the same village. About 2= years earlier to the date of

occurrence i.e. 4.11.1979 one Riazu disappeared from the

village and could not be traced out. A case was registered at

the police station against appellant Aizaz and others in which



2
the deceased was doing pairvi. The appellants had asked the

deceased several times not to appear as a witness in that case

or to do pairvi of the case. Ismail did not agree to it due to

which the appellants bore enmity with him.




In Ikla Rasoolpur, there is a school, namely, Deni Islami

Madarsa. A committee consisting of villagers of Ikla Rasoolpur

and village Khanpur used to manage the affairs of the school.

The deceased and the informant were members of the

committee. There was some dispute regarding the post of

Treasurer. Therefore, a meeting was to take place on

4.11.1979 in village Siyal. The appellants as well as the

villagers of Ikla Rasoolpur knew about the said meeting. On

the date of occurrence, i.e. 4.11.1979 the deceased Ismail and

informant Bashir Mohammad started from village Ikla

Rasoolpur for attending the meeting on a motor cycle. The

deceased was driving the motor cycle while the informant was

a pillion rider. At about 12 noon when they reached near the

field of Prakash Khazoori there was a turning of the road. The

deceased slowed down the speed of the motor cycle. At that


3
very time, all the four accused persons emerged from the field

of Prakash. Appellants Aizaz, Ahmad Hasan and Jan Alam

who were armed with country made pistols fired towards the

informant and the deceased on exhortation of Imlak. Imlak

was armed with spear. The gun shot did not hit either the

deceased or the informant. However, the deceased became

panicky and motor cycle fell down on the road. The deceased

left the motor cycle and his chappal and ran from the field of

Khairati towards the village. All the four accused persons

chased him. Informant, Bashir Mohammad also ran towards

them raising cry for help. After pursuing the deceased for

about 100 yards, the accused persons caught hold of the

deceased and pushed him to the ground. The three appellants

pushed him to the ground, while appellant Aizaz fired at the

deceased on the neck. Yakoob (P.W.2), Ian Mohammad (P.W.3)

and one Hafizuddin alias Fauju and Sahimuddin came over

there. The accused persons thereafter went away in the

southern direction. Ismail died instantaneously and blood had

also fallen at the place. Bashir Mohammad prepared a written

report at the place of occurrence. He went to the police station



4
on cycle and lodged it at the police station Parichhatgarh on

4.11.1979 at 1.00 P.M. The distance of the police station from

the place of occurrence is three kilometers. FIR was registered

and investigation was undertaken.


After completion of the investigation charge sheet was

filed and since accused persons pleaded innocence, they were

put on trial. Before trial Court the primary stand of accused

was that the prosecution has suppressed the genesis of the

occurrence. The evidence of PWs 1, 2 & 3 according to them

did not inspire confidence. In any event, it was submitted

that Section 34 has no application so far as the A2 and A4 are

concerned. The trial Court did not accept these contentions

and recorded conviction. Before the High Court in appeal the

stands were reiterated. The High Court found that the

evidence was inadequate so far as A4 is concerned, but

confirmed the conviction so far as the appellants are

concerned.



3. In support of the appeal, it is submitted that the

occurrence essentially took part in two stages. Even if there


5
was any animosity between A1 and the deceased, A2 and A3

had nothing to do with him. Additionally in the second part

also there was no use of any weapons by appellants Nos. 2 &

3. The only allegation against them is that they held the

deceased and fell him on the ground.



4. Learned counsel for the respondent-State on the other

hand supported the judgment of the trial court and the High

Court.



5. The evidence of PWs. 1, 2 & 3 is clear and cogent. The

trial court and the High Court have analysed the evidence in

great detail and have come to hold that the same has credence

and appear to be truthful. Nothing infirm could be pointed

out to warrant rejection of the evidence. Therefore the trial

Court and High Court were justified in placing reliance on the

evidence of PWs. 1, 2 & 3.



6. Coming to the plea relating to Section 34 the Section

really means that if two or more persons intentionally do a



6
common thing jointly, it is just the same as if each of them

had done it individually. It is a well recognized canon of

criminal jurisprudence that the Courts cannot distinguish

between co-conspirators, nor can they inquire, even if it were

possible as to the part taken by each in the crime. Where

parties go with a common purpose to execute a common

object each and every person becomes responsible for the act

of each and every other in execution and furtherance of their

common purpose; as the purpose is common, so must be the

responsibility. All are guilty of the principal offence, not of

abetment only. In a combination of this kind a mortal stroke,

though given by one of the parties, is deemed in the eye of law

to have been given by every individual present and abetting.

But a party not cognizant of the intention of his companion to

commit murder is not liable, though he has joined his

companion to do an unlawful act. Leading feature of this

Section is the element of participation in action. The essence

of liability under this Section is the existence of a common

intention animating the offenders and the participation in a

criminal act in furtherance of the common intention. The



7
essence is simultaneous consensus of the minds of persons

participating in the criminal action to bring about a particular

result (See Ramaswami Ayyanagar and Ors. v. State of Tamil

Nadu (AIR 1976 SC 2027). The participation need not in all

cases be by physical presence. In offences involving physical

violence, normally presence at the scene of offence may be

necessary, but such is not the case in respect of other offences

when the offence consists of diverse acts which may be done

at different times and places. The physical presence at the

scene of offence of the offender sought to be rendered liable

under this Section is not one of the conditions of its

applicability in every case. Before a man can be held liable for

acts done by another, under the provisions of this Section, it

must be established that (i) there was common intention in

the sense of a pre-arranged plan between the two, and (ii) the

person sought to be so held liable had participated in some

manner in the act constituting the offence. Unless common

intention and participation are both present, this Section

cannot apply.




8
7. `Common intention' implies pre-arranged plan and acting

in concert pursuant to the pre-arranged plan. Under this

Section a pre-concert in the sense of a distinct previous plan

is not necessary to be proved. The common intention to bring

about a particular result may well develop on the spot as

between a number of persons, with reference to the facts of

the case and circumstances of the situation. Though common

intention may develop on the spot, it must, however, be

anterior in point of time to the commission of offence showing

a pre-arranged plan and prior concert. (See Krishna Govind

Patil v. State of Maharashtra (AIR 1963 SC 1413). In Amrit

Singh and Ors. v. State of Punjab (1972 Crl.L.J. 465 SC) it has

been held that common intention pre-supposes prior concert.

Care must be taken not to confuse same or similar intention

with common intention; the partition which divides their

bonds is often very thin, nevertheless the distinction is real

and substantial, and if overlooked will result in miscarriage of

justice. To constitute common intention, it is necessary that

intention of each one of them be known to the rest of them

and shared by them. Undoubtedly, it is a difficult thing to



9
prove even the intention of an individual and, therefore, it is

all the more difficult to show the common intention of a group

of persons. But however difficult may be the task, the

prosecution must lead evidence of facts, circumstances and

conduct of the accused from which their common intention

can be safely gathered. In Magsogdan and Ors. v. State of U.P.

(AIR 1988 SC 126) it was observed that prosecution must lead

evidence from which the common intention of the accused can

be safely gathered. In most cases it has to be inferred from the

act, conduct or other relevant circumstances of the case in

hand. The totality of the circumstances must be taken into

consideration in arriving at a conclusion whether the accused

had a common intention to commit offence for which they can

be convicted. The facts and circumstances of cases vary and

each case has to be decided keeping in view of the facts

involved. Whether an act is in furtherance of the common

intention is an incident of fact and not of law. In Bhaba Nanda

Barma and Ors. v. The State of Assam (AIR 1977 SC 2252) it

was observed that prosecution must prove facts to justify an

inference that all participants of the acts had shared a



10
common intention to commit the criminal act which was

finally committed by one or more of the participants. Mere

presence of a person at the time of commission of an offence

by his confederates is not, in itself sufficient to bring his case

within the purview of Section 34, unless community of designs

is proved against him (See Malkhan and Anr. v. State of Uttar

Pradesh (AIR 1975 SC 12). In the Oxford English Dictionary,

the word "furtherance" is defined as `action of helping

forward'. Adopting this definition, Russel says that "it

indicates some kind of aid or assistance producing an effect in

future" and adds that any act may be regarded as done in

furtherance of the ultimate felony if it is a step intentionally

taken, for the purpose of effecting that felony. (Russel on

Crime 12th Edn. Vol.I pp.487 and 488). In Shankarlal

Kacharabhai and Ors. v. The State of Gujarat (AIR 1965 SC

1260) this Court has interpreted the word "furtherance" as

`advancement or promotion'.



8. When the factual scenario is analysed in the backdrop of

the principles of law set out above, the inevitable conclusion is



11
that the appeal is sans merit, deserves dismissal, which we

direct.



.....................................
....J.
(Dr. ARIJIT PASAYAT)



...........................................J.
(Dr. MUKUNDAKAM SHARMA)
New Delhi,
August 12, 2008




12
 
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