Mere Presence With Co-Accused Who Carried Knife, Without Overt Act Or Proof Of Meeting Of Minds, Cannot Sustain Conviction U/S. 302 R/W S. 34 IPC: Delhi High Court
The Bench while reducing conviction to Section 326/34 IPC held that accompanying the juvenile who wielded the knife shows common intention only to cause grievous hurt with a dangerous weapon.
The Delhi High Court has held that an accused cannot be convicted for murder with the aid of Section 34 of the IPC merely because he accompanied a co-accused who carried a knife, where there is no overt act and no evidence of a meeting of minds to cause death. It held that such conduct establishes, at most, a common intention to cause grievous hurt by a dangerous weapon.
Partly allowing the appeal, the Court altered the conviction from Sections 302/34 to Section 326 read with Section 34 of the IPC and sentenced the appellant to the period already undergone, about five years and eight months. It upheld his conviction under Section 201/34 IPC and directed that he be released forthwith, if not required in any other case.
A Division Bench of Justice Prathiba M. Singh and Justice Vikas Mahajan observed, “…even physical participation in the assault does not by itself establish a common intention to murder where the fatal blow is dealt by a co-accused with a weapon. Before attributing common intention, the Court must look at the weapon used, the overt acts attributed and the other circumstances of the incident. In each of the above cases, the accused had at least exhorted or caught hold of the deceased, but despite that they were not held vicariously liable for the offence under section 302 IPC, instead they were convicted under section 326 read with section 34 IPC. Similarly, even in the present case, the evidence is completely lacking to attribute any overt act to the Appellant. The case for attributing a common intention to murder is therefore even weaker”.
Advocate R.S. Mishra appeared for the appellant and Ritesh Kumar Bahri, APP appeared for the respondent.
The prosecution case is that on January 31, 2021, at about 8:00 PM, Manoj Kumar Jha was stabbed at a vacant plot in Vijay Nagar, Uttam Nagar, by the appellant, Abhishek Sharma, and a child in conflict with law (CCL). A day earlier, the deceased and a relative had asked the two to stop consuming intoxicants at the plot. The postmortem opinion was that the cause of death was cardiogenic shock from a stab wound to the chest, and one injury was sufficient to cause death in the ordinary course of nature. A buttondar knife was recovered from the CCL, and the burnt remnants of the pair’s upper clothes were recovered on their disclosure.
An FIR was registered with charges under Sections 302, 201 and 34 IPC were framed on May 5, 2022. The CCL faces proceedings before the Juvenile Justice Board. On July 7, 2025, the Additional Sessions Judge, Dwarka, convicted the appellant on circumstantial evidence. On July 15, 2025, he was sentenced to life imprisonment with a fine of ₹1,000 under Section 302/34 and three years with a fine of ₹1,000 under Section 201/34, to run concurrently.
The High Court agreed that no witness saw the stabbing and that the case rested on circumstantial evidence. It found the appellant’s presence and identification proved through two eyewitnesses who saw him running from the spot, and CCTV footage showing the two boys entering and fleeing. It found the recovery of the knife and the burnt clothes proved, and the medical evidence consistent. It noted that one witness’s claim to have seen the stabbing was an improvement on his police statement.
On common intention, the Court relied on Constable 907 Surendra Singh v. State of Uttarakhand and others, and held that even physical participation does not by itself prove an intention to murder where a co-accused delivers the fatal blow with a weapon.
"However, the fact remains that the Appellant accompanied the CCL, who seems to be carrying a knife in his hand, which definitely establishes that the Appellant shared a common intention of causing grievous hurt by dangerous weapon to Manoj Kumar Jha deceased. The Appellant could, therefore, be held vicariously liable only for an offence under Section 326 read with Section 34 IPC, and not under Section 302 read with Section 34 IPC.", the Court said.
The Court modified the conviction to Section 326 read with Section 34 IPC and sentenced the appellant to the period already undergone. It upheld the conviction and three-year sentence under Section 201/34 IPC, which the appellant had already served. It directed his release forthwith and ordered a copy sent to the Jail Superintendent.
Cause Title: Abhishek Sharma v. The State NCT of Delhi (Neutral Citation: 2026:DHC:9511-DB)
Appearances:
Appellant: R.S. Mishra, Yogendra and Anand Mishra, Advocates.
Respondent: Ritesh Kumar Bahri, APP, Lalit Luthra and Randeep Kumar, Advocates.