Fact of the case :

This case involved five accused, who were charged under Sections 302/34 of the IPC (S103/3(5) BNS) for causing the death of two persons. One of them died on the spot and the other passed away in the hospital. When these two deceased were returning from the market, they were assaulted by the five accused. Charges were framed against all five accused and the matter came before the Sessions Judge. 

The court of Sessions acquitted accused no. 3 and 5, giving them the benefit of the doubt. However, the rest of the accused were found guilty under Sections 302/34, (S103/3(5) BNS)  on the basis of evidence and various Prosecution Witnesses (PW) statements, and were sentenced to imprisonment for life. The judgement was also affirmed by the Gauhati High Court.  

Hence, Subed Ali (accused no.1) approached the Supreme Court, praying that he was also liable for the benefit of the doubt because the facts of his case were similar to that of the acquitted persons. 

The counsel for the appellant contended that the testimonies of the witnesses were inconsistent. Hence, the conviction was unjustified. He also pointed out that the incident took place after sunset, hence due to the darkness; the identification of the accused is questionable. He also submitted that there is no evidence to prove that accused was armed or that he assaulted the deceased. 

The counsel for the State argued that the testimony of eyewitnesses is consistent with regard to the participation of the appellant. Also, common intention can be established based on the fact that the appellant was waiting for the deceased to assault them. He also asserted that the witness already knew the appellant before the crime and hence had no difficulty identifying him.

Common intention consists of several persons acting in union 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 a matter of inference to be drawn from facts and circumstances of the case. The foundation for conviction on the basis of common intention is based on the principle of vicarious liability by which a person is held responsible for the acts of others with whom he shared the common intention.”

HELD :  The Supreme Court upheld the acquittal of accused no.3 and 5. After a careful perusal of Section 34 of the IPC, (S- 3(5) BNS) the court said that common intention consists of several persons acting in union to achieve a common purpose, though their roles may be different. Once the common intention is established, their role being active or passive is irrelevant. It also stated that a conviction for common intention is based on the principle of vicarious liability, under which a person is held answerable for the acts of others with whom he shared the common intention. Under such circumstances, the presence of mens rea (guilty mind) is sufficient for getting a conviction without having to prove the actual participation in the assault.