The presence of the mental element or the intention to commit a crime, if cogently established, is sufficient for conviction. It is not necessary to be actively involved in the physical act of assault, the Supreme Court has held in a judgment.
A Bench led by Justice Rohinton F. Nariman said the common intention (Section 34 of the Indi an Penal Code) consists of several persons acting in unison 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.
The judgment, authored by Justice Sinha, came on an appeal filed by three persons accused of a double murder in Assam in 2005. They argued that the trial court had acquitted two of their co-accused on the benefit of doubt. They sought parity, saying if the duo were acquitted on the same evidence, they too should be released on the same benefit of doubt. They argued there was no common intention to commit the crime. They were not armed. So, each of the five accused person should be judged on his own individual acts during the commission of the crime.
The court refused to accept the argument. In his judgment, Justice Sinha observed that the foundation for conviction for common intention is vicarious responsibility. That is, the accused is equally responsible for the acts of his co-accused if there had been prior meeting of their minds to commit the crime.
“The presence of the mental element or the intention to commit the act, if cogently established, is sufficient for conviction, without actual participation in the assault. It is, therefore, not necessary that before a person is convicted on the ground of common intention, he must be actively involved in the physical activity of assault,” Justice Sinha reasoned.
Dismissing the appeal, the court said there was enough evidence to show that the appellants had chased one of their victims and brutally assaulted him.