The Allahabad High Court, in a significant ruling on the principle of common intention under Section 34 of the Indian Penal Code, has acquitted a man convicted of murder and sentenced to life imprisonment 41 years ago. The Court held that mere presence and a general exhortation like “Maro Sale Ko” (Beat/Kill the scoundrel), without any overt act, are insufficient to prove a common intention to commit murder beyond a reasonable doubt.
A division bench comprising Justice Saumitra Dayal Singh and Justice Madan Pal Singh allowed the criminal appeal filed by Vijai @ Babban, setting aside the judgment and order dated October 20, 1984, passed by the Ist Additional Sessions Judge, Jhansi.
Background of the Case
The prosecution’s case originated from an FIR lodged on December 17, 1983. The informant, Bahadur Shah (P.W.-1), stated that at approximately 7:45 PM, he, his brother Bashir Shah (the deceased), and a friend, Mahendra, were returning home. They encountered the appellant Vijai @ Babban and a co-accused, Narendra Kumar.
An altercation began when Narendra accused the deceased, Bashir Shah, of interfering in his relationship with a woman named Kanti. Bashir denied the allegations. At this point, the FIR alleges, the appellant Vijai @ Babban exhorted, “Maro Sale Ko”. Immediately thereafter, co-accused Narendra took out a knife and inflicted three to four fatal stab wounds on Bashir Shah, who later succumbed to his injuries.
The trial court found both Narendra Kumar and Vijai @ Babban guilty of murder in furtherance of a common intention under Section 302/34 IPC. Narendra Kumar passed away during the pendency of his appeal, and the proceedings against him were abated.
Arguments Before the High Court
Shri Rajiv Lochan Shukla, learned Amicus Curiae for the appellant, argued that the primary role of inflicting fatal injuries was attributed solely to the deceased co-accused, Narendra. The appellant’s role was limited to exhortation. The counsel contended that the prosecution had failed to establish a prior meeting of minds or a shared common intention to commit murder. It was submitted that the phrase “Maro Sale Ko” is often used in trivial altercations and does not necessarily imply an intention to kill, particularly when there was no evidence of premeditation.
Conversely, the learned A.G.A. for the State argued that common intention can develop on the spot and that the appellant’s exhortation was a clear overt act demonstrating this shared intent.
High Court’s Analysis and Findings
The High Court meticulously analyzed the evidence and legal precedents to determine “whether the present appellant had shared common intention with the principal offender to commit the murder of the deceased.”
1. No Premeditation: The Court observed that the meeting between the two parties was a chance encounter. The judgment noted, “None of the witnesses stated that the accused were standing at the place of occurrence and were waiting for the deceased.” The fact that the assault was preceded by a “hot exchange of words” further indicated a lack of premeditation.
2. Material Improvements in Testimony: The Court found significant inconsistencies between the initial FIR and the subsequent court testimony of the informant, Bahadur Shah (P.W.-1). While the FIR only mentioned the appellant’s exhortation, in court, P.W.-1 added that the appellant had also brandished a knife and threatened witnesses. The Court deemed this a “material improvement made at the trial,” which cast doubt on the prosecution’s narrative.
3. Lack of Common Intention: The bench found that mere presence was not enough to establish common intention. It highlighted testimony suggesting that the appellant and the main assailant had conflicting interests regarding the same woman, making it improbable they would share an intention to kill the deceased. The Court pointedly observed:
“One another aspect, on which we are reluctant to believe on the theory of prosecution that the present appellant had a common intention to commit the murder of Bashir, is that the present appellant had not assaulted the deceased, even though he was also carrying a knife as alleged by the prosecution witnesses.”
4. Exhortation as a Weak Piece of Evidence: The Court relied on several Supreme Court judgments, including Jainul Haque vs State Of Bihar (1974), to reiterate that “The evidence of exhortation is, in the very nature of things, a weak piece of evidence.” Citing Matadin etc. Vs. State of Maharashtra (1998), the Court noted that the words “maro sale ko” are ambiguous and “it could not be said that he exhorted his fellows to kill Ashok.”
The Court concluded that to convict a person based on exhortation, the evidence must be “clear, cogent and reliable,” and must be supported by other circumstances, including a proven overt or covert act.
The Verdict
Finding the evidence against the appellant to be weak and insufficient to meet the standard of “proof beyond reasonable doubt,” the High Court allowed the appeal.
The judgment stated:
“As discussed above, the only role assigned to the present appellant is of general exhortation, which is a weak piece of evidence as has been held by the Hon’ble Apex Court, in the case law cited above. On such a weak piece of evidence, the accused cannot be convicted for such a heinous offence on the test-beyond reasonable doubt.”
The Court set aside the conviction and sentence, acquitting Vijai @ Babban of all charges and directing his immediate release from jail.
