Case Note & Summary
The Supreme Court dismissed the appeal filed by Subed Ali and two others against their conviction under Section 302/34 IPC for the murder of Abdul Motin and Abdul Barek. The prosecution case was that on 05.08.2005 at about 6 PM, the two deceased were returning from the market on bicycles with four eye witnesses (PWs 5, 6, 7, 9) when the appellants intercepted them. Appellant no.1 stopped the deceased, after which appellant no.2 assaulted Abdul Barek with a sharp weapon, causing his death on the spot. Appellant no.3 assaulted Abdul Motin, who tried to flee but was chased and caught near the house of Mamud Ali, where he was further assaulted; he died in the hospital the same night. The trial court convicted the three appellants under Section 302/34 IPC, while acquitting two co-accused on benefit of doubt. The High Court affirmed the conviction. The appellants argued that since two co-accused were acquitted on the same evidence, they too should be acquitted; that there were inconsistencies in eye witness testimony; that identification was doubtful due to darkness; and that appellant no.1 had no common intention as he was unarmed and did not assault anyone. The Supreme Court held that the acquittal of co-accused does not entitle the appellants to the same benefit because the evidence against them was consistent and credible. Minor inconsistencies in eye witness accounts were inconsequential. Regarding identification, the court noted that the occurrence was at dusk, not complete darkness, and the parties were known to each other. On common intention, the court observed that it can be inferred from the prearranged plan and concerted action; appellant no.1's act of stopping the deceased facilitated the assault, establishing common intention. The court also held that failure to frame a charge under Section 34 IPC was not fatal as the evidence would be the same as under Section 149. The appeal was dismissed, upholding the life sentences.
Headnote
A) Criminal Law - Murder - Common Intention - Section 302/34 IPC - Appellants convicted for murder of two persons - Acquittal of co-accused on benefit of doubt does not entitle appellants to same benefit if evidence against them is consistent and credible (Paras 2-12). B) Criminal Law - Common Intention - Inference - Section 34 IPC - Common intention can be inferred from prearranged plan and acting in concert; active participation not necessary if mental element is established - Appellant no.1, though unarmed, stopped the deceased, facilitating assault by others - Held that common intention was established (Paras 13-15). C) Criminal Procedure - Charge - Omission to frame charge under Section 34 IPC - Not fatal if evidence for charge under Section 149 would be same - Prejudice must be shown (Para 8).
Issue of Consideration
Whether the appellants are entitled to acquittal on benefit of doubt due to acquittal of co-accused, and whether appellant no.1 can be convicted under Section 34 IPC without active participation in assault
Final Decision
Appeal dismissed. Conviction of appellants under Section 302/34 IPC and life imprisonment upheld.
Law Points
- Common intention under Section 34 IPC can be inferred from prearranged plan and concerted action
- even if one accused is unarmed
- acquittal of co-accused on benefit of doubt does not entitle others to same benefit if evidence against them is consistent
- failure to frame charge under Section 34 is not fatal if evidence would be same as under Section 149
