REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL   NO._1292 OF 2017  (Arising out of SLP (Crl.) No.10053 of 2014)

RAJKISHORE PUROHIT      ....APPELLANT(S)  

VERSUS

STATE OF MADHYA PRADESH  AND OTHERS ...RESPONDENT(S)

J U D G M E N T

NAVIN SINHA, J.

Leave granted.

2. The conviction of respondent no.2, under Section 302/34 IPC, by

the Sessions Judge,  Sagar,  in Sessions Trial  No.  369 of  1997, has

been  reversed  by  the  High  Court  in  appeal,  acquitting  him.   The

appellant, brother of the deceased, assails the acquittal.    

3.  Lokman Khatik,  accused  no.3,  was  peeved  with  the  meeting

being held for his removal from the post of Mayor.   The deceased was

the President of the Congress Sewa Dal, spearheading the campaign.

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The trial court from the evidence arrived at the finding that all the four

accused  came  together  to  the  place  of  occurrence  in  a  white

ambassador car.  Accused no.3 identified the deceased to Jitendra @

Jittu, accused no.2.  Thereafter, respondent no.2 accompanied by the

latter and accused no.4, Bhupendra, proceeded towards the deceased.

Accused  no.2  took  out  a  revolver  from his  waist  and  fired  at  the

deceased while  the other two accused provided cover.   All  the four

accused then left the place of occurrence in the ambassador car. The

deceased  died  on  the  way  to  the  hospital.   The  plea  of  alibi  by

respondent no.2 was disbelieved.  

4. Accused  no.2  was  convicted  under  Section  302,  IPC  to  Life

imprisonment and rigorous imprisonment for one year under Section

25(1)(a) of the Arms Act. He is stated to have served out his sentence.

Respondent  no.2  and  the  other  accused  were  convicted  to  Life

imprisonment under Section 302/34 IPC.  

5. The  High  Court,  in  the  appeal  preferred  by  respondent  no.2,

acquitted  him,  on  the  reasoning  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  the

conviction, attributing common intention.   It was further reasoned

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that respondent no. 2 may have had no knowledge that accused no.2

was carrying a revolver.  

6. The  submission on behalf  of  the  appellant  was that  the  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  the  existence  of  common  intention.   There  has  been

inadequate appreciation of evidence to erroneously conclude lack of

common  intention.   A  well  reasoned  order  of  the  Trial  Court  has

erroneously  been  set  aside  on  a  presumptive  reasoning  based  on

conjectures  and  surmises  beyond  the  defence  of  respondent  no.2

himself,  that  he  may  have  been  unaware  of  the  fact  that  the

co-accused  was  possessed  of  a  revolver.   It  has  resulted  in  grave

miscarriage of justice, warranting interference by this Court.

7. Learned counsel for respondent no. 2 submitted that his mere

presence at the place of occurrence along with other co-accused was

not sufficient to infer common intention.  The fact that they may have

come together to the place of occurrence was also not sufficient.  There

is no positive evidence that they all left together after the assault in

the same car.  No overt act had been attributed to him and neither

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was he possessed of any weapon.  The High Court has held that he

was not aware of the fact that the co-accused was carrying a revolver.

There  was  inadequate  evidence  that  he  had  moved  forward  with

co-accused towards the deceased after which the assault took place.   

8. We  have  considered  the  respective  submissions,  and  the

materials  on  record.   The  order  of  acquittal,  in  the  facts  and

circumstances of the case, is unsustainable, and deserves to be set

aside for reasons discussed hereinafter.

9. Respondent no.2 was the nephew of accused no.3.  The meeting

had been called to protest for removal of accused no.3 from the post of

Mayor on allegations of corruption, with the slogan “Lokman Hatao

Congress Bachaao”.   The deceased was the President of the Congress

Sewa Dal.  Apparently the accused were peeved with the summoning

of the meeting.  The evidence of PWs 1, 4, 5, 13 and 23 are consistent

that  the  four  accused  came  together  and  alighted  from  a  white

Ambassador Car.  Accused no.3 identified the deceased.  Respondent

no. 2, along with accused nos.2 and 4 moved forward towards the

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 the deceased.  In the melee that followed the shooting, the accused

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persons fled together in the car.  The appellant, PW-1 was the own

brother of the deceased and PW-5, the brother-in-law.  There is no

reason why they should be lying and falsely naming another as the

assailants, shielding the real accused, especially when they were eye

witnesses to the occurrence.   Respondent no.2 has not urged false

implication, and on the contrary took the defence of alibi, which has

been disbelieved by the trial court and affirmed by the High Court.

The taking of a false plea is an additional aggravating factor against

the accused.  

10. 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.  The  existence  or  non-existence  of  a  common  intention

amongst  the accused has to be deciphered cumulatively from their

conduct and behavior in the facts and circumstances of  each case.

Events  prior  to  the  occurrence  as  also  after,  and  during  the

occurrence, are all  relevant to deduce if  there existed any common

intention.  There can be no straight jacket formula. The absence of any

overt act of assault, exhortation or possession of weapon cannot be

singularly determinative of absence of common intention.  

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11.    Though judicial  precedents  with  regard  to  common intention

stand well entrenched, it will be sufficient to refer State of Rajasthan

vs. Shobha Ram, (2013) 14 SCC 732, observing as follows :-  

“10. Insofar as common intention is concerned, it  is a state of mind of an accused which can be inferred object- ively from his conduct displayed in the course of com- mission of crime and also from prior and subsequent at- tendant circumstances. As observed in Hari Ram v. State of  U.P.6 (SCC p. 622, para 21),  the existence of direct proof  of  common  intention  is  seldom  available  and, therefore, such intention can only be inferred from the circumstances  appearing  from the  proved  facts  of  the case and the proved circumstances. Therefore, in order to bring home the charge of common intention, the pro- secution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence before a person can be vicariously convicted for the act of the oth- er.”

12.  Motive  for  the  assault  existed  because  the  accused  were

aggrieved by the meeting summoned.  The assault was planned in a

gathering,  where  escape  would  have  been  easy,  in  the  chaos  that

would follow the assault.  The accused persons came together in a car

to facilitate a quick get-away.  Exhortation was made by respondent

no.2, when the accused were at very close quarters to the deceased.

The  firing  was  done  from  a  distance  of  about  6  inches.   The

respondent no.2 and accused no.4 provided cover at this time.  There

is nothing in the conduct of respondent no.2 to draw any inference

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that  he  was  taken  by  surprise,  when  the  co-accused  opened  fire.

Rather than provide help to the deceased and his relatives, respondent

no.2 immediately escaped from the place of occurrence in the chaos

that followed, indicative  of  his awareness of  the common intention.

The sequence of events, and the manner in which the occurrence took

place, manifests a pre-concerted plan and a prior meeting of minds.  It

was not the case of respondent no.2 that he was taken by surprise

and was unaware that the 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 the facts and circumstances of the

case, there need not be an overt act or possession of weapon required,

to establish common intention.  

13. In  Ramaswami Ayyangar vs. State of Tamil Nadu, (1976) 3

SCC 779, explaining the essence and purport of common intention, it

was observed as follows :-

“12…..The  acts  committed  by  different  confederates  in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise,  for  instance,  one  may only  stand guard to prevent any person coming to the relief of the victim, or may otherwise facilitate the [commission of crime]. Such a  person  also  commits  an  ‘act’  as  much  as  his co-participants actually committing the planned crime.”

14. Though this Court, in exercise of discretionary jurisdiction under

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Article  136 of  the  Constitution,  may not  interfere  with an order  of

acquittal, reversing a conviction, yet if it finds that the High Court has

completely erred in appreciation of evidence, has applied the wrong

principles to negate common intention, and has based its conclusions

on speculative reasoning, beyond the defence of the accused himself,

justice will demand that the acquittal is reversed.  We, therefore, set

aside the order of acquittal passed by the High Court and restore the

order  of  conviction  of  respondent  no.2  under  Section  302/34  IPC

passed  by  the  Sessions  Judge.  Respondent  no.2  has  remained  in

custody only for 3 years, 10 months and 7 days.  He is directed to

surrender  forthwith  for  serving  out  the  remaining  period  of  his

sentence.

15. The appeal is allowed.

…………...................J. [RANJAN GOGOI]

…………...................J. [NAVIN SINHA]

NEW DELHI;  AUGUST 01, 2017.

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