A) ABSTRACT / HEADNOTE

The decision in Subed Ali and Others v. State of Assam authoritatively revisits the doctrinal contours of common intention under Section 34 of the Indian Penal Code, 1860, particularly in situations where one accused has not inflicted any overt physical injury. The Supreme Court examined whether the conviction of the appellants under Section 302 read with Section 34 IPC could be sustained when two co-accused had already been acquitted on the benefit of doubt on the same evidentiary record. The Court undertook a meticulous appraisal of eyewitness testimony, medical evidence, and surrounding circumstances to assess the existence of a shared mental element among the accused.

The judgment reinforces the principle that common intention is rarely capable of direct proof and must ordinarily be inferred from conduct, sequence of events, and collective behaviour before, during, and after the crime. The Court clarified that the absence of an overt act does not absolve an accused from criminal liability once participation in the joint criminal venture is established. It further held that parity with acquitted co-accused cannot be claimed mechanically, especially where the evidence against the convicted accused is clear, cogent, and consistent.

The ruling strengthens the jurisprudence on vicarious liability by reiterating that even a passive role, when accompanied by a conscious sharing of intent, attracts criminal responsibility for the ultimate act committed. The judgment also settles that non-framing of a specific charge under Section 34 IPC does not vitiate the conviction if no prejudice is shown.

Keywords: Common intention, Section 34 IPC, vicarious liability, parity in acquittal, eyewitness testimony, murder

B) CASE DETAILS

C) INTRODUCTION AND BACKGROUND OF JUDGEMENT

The judgment emerges from a violent double homicide that occurred in a rural setting in Assam, raising foundational questions on collective criminal liability. The appellants stood convicted for murder with the aid of Section 34 IPC, despite one of them not having inflicted any direct injury. The High Court of Gauhati had affirmed the conviction recorded by the Sessions Court, prompting the present appeal.

The principal challenge raised before the Supreme Court revolved around the alleged inconsistency in the prosecution evidence and the plea of parity, since two co-accused were acquitted on the benefit of doubt. The appellants further questioned the application of Section 34 IPC, arguing the absence of a proven pre-arranged plan and the lack of an overt act by one accused.

The background of the case is significant because it situates the recurring tension in criminal law between individual culpability and group liability. Indian criminal jurisprudence has consistently recognised that crimes committed in concert require a nuanced appreciation of collective intent. This judgment builds upon established precedent to clarify that common intention may develop on the spot and does not necessarily require elaborate planning.

The Court also addressed procedural objections concerning the absence of a specific charge under Section 34 IPC. By relying on earlier Constitution Bench authority, the Court reaffirmed that substance prevails over form when no prejudice is caused to the accused. The background thus sets the stage for reaffirming settled principles while applying them rigorously to the facts at hand.

D) FACTS OF THE CASE

On 05.08.2005 at around 6:00 PM, the deceased Abdul Barek and Abdul Motin were returning from the market on bicycles along with other villagers. They were intercepted on the way by the appellants. According to the prosecution, appellant no.1 stopped the victims, after which appellant no.2 assaulted Abdul Barek with a sharp cutting weapon (Dao), resulting in instantaneous death.

The second victim, Abdul Motin, was assaulted by appellant no.3, sustaining grievous injuries. He attempted to flee but was chased by the accused, caught near a nearby house, and brutally assaulted again. He was dragged back to the original place of occurrence and later succumbed to his injuries in the hospital the same night.

Medical evidence revealed catastrophic injuries, including amputation of limbs and deep incised wounds, clearly establishing homicidal death. A General Diary entry was initially made based on oral information, followed by a formal FIR naming five accused.

During trial, accused nos. 3 and 5 were acquitted on benefit of doubt. The Sessions Court convicted the remaining appellants under Section 302/34 IPC. The High Court affirmed the conviction, holding that the acquittal of co-accused did not dilute the prosecution case against the appellants.

E) LEGAL ISSUES RAISED

i. Whether conviction under Section 302 read with Section 34 IPC can be sustained when co-accused have been acquitted on the same evidence?
ii. Whether absence of an overt act by one accused negates the existence of common intention?
iii. Whether failure to frame a specific charge under Section 34 IPC vitiates the conviction?

F) PETITIONER / APPELLANT’S ARGUMENTS

The counsels for the appellants submitted that the acquittal of two co-accused on identical evidence entitled the appellants to parity. It was argued that eyewitness testimonies suffered from inconsistencies, particularly regarding lighting conditions.

It was further contended that appellant no.1 neither carried any weapon nor assaulted the deceased, thereby lacking the requisite mens rea for murder. The defence also questioned the non-examination of certain witnesses and the non-recovery of weapons.

Lastly, it was argued that in the absence of a specific charge under Section 34 IPC, the conviction was procedurally flawed and prejudicial.

G) RESPONDENT’S ARGUMENTS

The counsels for the State argued that the eyewitnesses were consistent on material particulars. Minor discrepancies did not erode the core prosecution narrative.

It was submitted that common intention was evident from the coordinated conduct of the appellants before, during, and after the assault. The State emphasised that physical assault is not a sine qua non for liability under Section 34 IPC.

The State also relied upon settled precedent to argue that absence of a specific charge causes no prejudice when the accused were fully aware of the prosecution case.

H) JUDGEMENT

The Supreme Court dismissed the appeal and affirmed the conviction. The Court held that the evidence of PW-5, PW-6, PW-7, and PW-9 was reliable and consistent. The medical evidence fully corroborated the ocular version.

On the plea of parity, the Court held that acquittal of co-accused on benefit of doubt does not automatically entitle others to acquittal when evidence against them is strong.

The Court rejected the argument regarding lack of overt act by appellant no.1, holding that stopping the victims, remaining present, chasing the injured, and facilitating the assault clearly established shared intention.

The Court relied upon Karnail Singh v. State of Punjab, Ramaswami Ayyangar v. State of Tamil Nadu, Nandu Rastogi v. State of Bihar, Surender Chauhan v. State of Madhya Pradesh, and Nand Kishore v. State of Madhya Pradesh to reaffirm the doctrine of common intention.

a) RATIO DECIDENDI

The ratio of the judgment lies in reaffirming that common intention under Section 34 IPC can be inferred from conduct and circumstances. Physical participation is not mandatory. Conscious presence and facilitation suffice to attract vicarious liability.

b) OBITER DICTA

The Court observed that crimes involving collective violence often develop intent spontaneously, and courts must not insist on proof of elaborate pre-planning.

c) GUIDELINES

i. Common intention may develop at the spot.
ii. Absence of overt act does not absolve liability.
iii. Failure to frame a specific charge under Section 34 IPC is not fatal absent prejudice.

I) CONCLUSION & COMMENTS

The judgment stands as a reaffirmation of settled principles governing joint criminal liability. It adopts a realistic and pragmatic approach, preventing offenders from escaping liability by compartmentalising roles. The Court balances individual rights with societal interest by insisting on careful scrutiny of evidence while rejecting hyper-technical defences. The ruling significantly strengthens prosecutorial ability in cases of group violence while remaining anchored to constitutional fairness.

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J) REFERENCES

a) Important Cases Referred

1. Karnail Singh v. State of Punjab, [1954] SCR 904
2. Ramaswami Ayyangar v. State of Tamil Nadu, [1976] 3 SCR 876
3. Nandu Rastogi v. State of Bihar, [2002] 3 Supp SCR 30
4. Surender Chauhan v. State of Madhya Pradesh, [2000] 2 SCR 515
5. Nand Kishore v. State of Madhya Pradesh, [2011] 7 SCR 1152

b) Important Statutes Referred

1. Indian Penal Code, 1860 – Sections 302, 34, 147, 341