SUPREME COURT REITERATES FACTORS TO BE CONSIDERED TO ESTABLISH ‘COMMON INTENTION’ OF ACCUSED TO COMMIT AN OFFENCE

A 2-Judge Bench of the Supreme Court comprising of Justice Abhay S. Oka and Justice Pankaj Mithal passed a Judgment dated 01-12-2023 in the matter of Ram Naresh vs State of Uttar Pradesh, Criminal Appeal No. 3577 of 2023 and reiterated the factors to be considered to establish ‘common intention’ amongst the accused and co-accused persons under Section 34 of the Indian Penal Code 1860 (IPC) (Acts done by several persons in furtherance of common intention) and further, held that the Appellant-Accused together with other Accused persons had a common intention to kill the Deceased, Ram Kishore.

Facts

(i) That the Complainant, Balram filed a Complaint with the Police Station, Ramnagar, District-Varanasi, on 18-10-1982 and stated that on the said day, around 5.30 am, when he was arriving at the Babu Lal’s Dhaba, he saw the Accused persons, namely, Rajaram, Virendra, Jogendra and Naresh, who were armed with lathis, iron rods, etc. As per the Complainant, the Accused-Rajaram came out from Dhaba and shouted that he will have Ram Kishore killed to finish all pending cases. Hearing them shout, the Complainant accompanied by his brother, Ram Kishore shouted for help, but the Accused persons encircled them and gave brutal blows using lathis and iron rods. As a result, Ram Kishore (Deceased) succumbed to his injuries. The said incident was witnessed by three other persons, namely, Sri Rajaram, Muse and Ram Dulare.

(ii) The Police registered an FIR dated 18-10-1982 against the four Accused persons for commission of offence under Section 302 IPC (Punishment for murder) read with Section 34 of IPC (Acts done by several persons in furtherance of common intention).

(iii) Upon completion of investigation, the Police filed a Report / Charge-Sheet under Section 173 of the Code of Criminal Procedure 1973 (CrPC) (Report of police officer on completion of investigation) before the Court competent to take cognizance of the offence based on the Police Report. The Court then committed the case to the Ld. Additional Sessions Judge (V^th), Varanasi (Trial Court).

(iv) The Trial Court in Sessions Trial No.38 of 1983, passed an Order dated 27-09-1983, thereby, convicting all the four Accused persons under Sections 302 read with 34 of IPC, based on the testimony of the eye-witnesses and the autopsy report.

(v) Aggrieved, the Accused filed a Criminal Appeal bearing CRLA-2296-1983 before the High Court of Judicature, at Allahabad. During the pendency of the Appeal, two of the Accused, namely, Rajaram and Virendra Pratap passed away. Hence, the Appeal was continued in respect of the co-Accused-Jogendra and Ram Naresh.

(vi) The High Court, vide Order dated 23-10-2019, observed as follows:

(a) That the testimonies of the eye-witnesses against the Accused persons, were in consonance with each other and not contradictory,

(b) The medical evidence established that it was a homicidal death of the Deceased and that the nature of injuries on his body was meeting with the nature of weapons used by the Accused persons.

(c) All the Accused persons came out of the Dhaba and collectively gave fatal blows on the vital parts of the Deceased, which resulted in his death.

(d) “Such collective assaults clearly indicate sharing of common intention and as such the trial court rightly applied the provisions of Section 34 Indian Penal Code in the instant matter.”

(e) Hence, the High Court upheld the Trial Court Order dated 27-09-1983 that convicted the Accused persons under Sections 302 read with 34 of IPC.

Supreme Court Observations

Aggrieved by the High Court Order dated 23-10-2019, the Appellant-Accused, Ram Naresh filed Criminal Appeal No. 3577 of 2023 before the Supreme Court on the ground that the Trial Court did not make any finding in respect of the ‘common intention’ on the part of Appellant-Accused and thus, Section 34 of IPC cannot be applied to convict him. The Apex Court passed an Order dated 01-12-2023 and made the following observations:

1) That for making an order of conviction under Section 34 of IPC, the following factors have to be considered:

i) A criminal act is done by several persons with a common intention i.e. there should be community of purpose and common design.

ii) Such common intention can be formed even during the occurrence of the crime and it is not necessary that there is any prior conspiracy / premeditated mind / prior discussion amongst the main perpetrator and the co-perpetrators.

iii) The fact of common intention can be established in the following manner:

(a) An inquiry into the antecedents,

(b) Conduct of the co-participants or perpetrators at the time and after the occurrence,

(c) The manner in which the accused arrived, mounted the attack,

(d) Nature and type of injuries inflicted, the weapon used,

(e) Conduct or acts of the co-assailants/perpetrators,

(f) Object and purpose behind the occurrence or the attack, etc.

iv) Once the participation of accused persons in a crime is established and the common intention is also proved, each of the person is liable for that act as it has been done by him alone.

v) Section 34 IPC or the principle of common intention makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability.

2) That in the present case, as per the ocular evidence / eye-witness testimonies corroborated with the medical evidence, it was established that:

i) All the four Accused persons had collectively attacked and assaulted the Deceased with weapons, with the intention to kill him. “The intention to kill him is discernible from the very fact that all of them are related to each other and were armed when they came to the place of occurrence.”

ii) Thereafter, the four Accused persons left the place of occurrence together.

iii) Hence, the collective action of all the Accused persons indicated sharing of common intention.

Conclusion

Thus, based on the aforesaid observations, the Supreme Court held that the Appellant-Accused was rightly convicted under Section 34 of IPC, as he along with the other Accused persons had actively participated in assaulting and giving blows to the Deceased to the extent that he succumbed to his injuries. As a result, the Apex Court upheld the Trial Court Order dated 27-09-1983 and the High Court Order dated 23-10-2019 that convicted the Accused persons under Sections 302 read with 34 of IPC.

Harini Daliparthy

Senior Associate

The Indian Lawyer