The Delhi High Court has held that an allegation of exhortation, by itself, constitutes a weak piece of evidence and cannot form the basis for conviction unless it is supported by clear, cogent and reliable evidence establishing the role of the accused beyond a reasonable doubt.

The Court further observed that for invoking Section 34 IPC, the prosecution must establish that the accused shared a common intention to commit the crime actually committed and that the criminal act was carried out in furtherance of such common intention. Mere attribution of words of instigation, without reliable evidence of shared criminal intent, is insufficient to sustain a conviction.

The Court was hearing an appeal challenging the conviction of the appellant under Section 302 read with Section 34 of the Indian Penal Code, 1860, for the murder of a passenger who was fatally stabbed during an altercation inside a public bus. The appellant's role, according to the prosecution, was limited to allegedly exhorting the assailants by shouting "Maro Sale Ko".

A Division Bench of Justice Navin Chawla and Justice Ravinder Dudeja, while examining the requirements of common intention and the evidentiary value of exhortation, observed: “…to attract the provisions of Section 34 of the IPC, it must be proved that: (i) there was common intention on the part of several persons to commit a particular crime; and (ii) the crime was actually committed by them in furtherance of that common intention”.

Additionally, the Bench added: "exhortation on its own is treated as a weak piece of evidence as there may exist tendencies to implicate some persons in addition to the actual assailants, by attributing to such persons a role of an exhortation to the assailant to assault the victim. Unless the evidence in this respect is clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted to the actual assailant."

Advocate Himanshu Anand Gupta appeared for the appellant, while Aman Usman, APP, appeared for the respondent-State.

Background

The prosecution's case arose from an incident inside a public bus where a passenger sustained fatal knife injuries following an altercation involving a group of young men. Two other passengers also suffered injuries during the occurrence.

The prosecution alleged that while some of the accused physically assaulted the victims using knives, the appellant participated by exhorting the assailants from the rear portion of the bus and was therefore liable for murder with the aid of Section 34 IPC.

The Trial Court accepted the prosecution's case, convicted the appellant under Section 302 read with Section 34 IPC and sentenced him to imprisonment for life. Aggrieved thereby, the appellant approached the High Court.

Court's Observations

The Court first examined the evidentiary value of the Test Identification Parade and the subsequent dock identification relied upon by the prosecution. After analysing the testimonies of material witnesses and the circumstances surrounding the identification proceedings, the Bench found serious doubts regarding the authenticity of the TIP process.

Referring to the evidence on record, the Court noted that there was material suggesting that the accused persons may have been seen by witnesses before the proposed TIP proceedings. The Court observed that the circumstances created a serious doubt regarding the fairness of the identification exercise and therefore the refusal of the appellant to participate in the TIP could not result in any adverse inference against him.

The Bench further found that once the credibility of the identification proceedings became doubtful, the subsequent dock identification also lost much of its evidentiary value. Consequently, the Court declined to place reliance on such identification evidence.

The Court then scrutinised the testimony of the alleged eye-witnesses and observed that although minor inconsistencies do not ordinarily destroy a prosecution case, the evidence must nevertheless be wholly reliable and trustworthy. The Bench found that the conduct of certain witnesses in the aftermath of the incident, coupled with inconsistencies in their versions, raised doubts regarding the prosecution's narrative.

The Court observed that some witnesses who claimed close association with the deceased did not immediately approach the police despite visiting the hospital and despite being aware of the seriousness of the injuries. The delay in recording their statements and their conduct after the incident were factors that required careful evaluation while assessing the reliability of their testimony.

Turning to Section 34 IPC, the Bench extensively discussed the principles governing common intention. Referring to Jasdeep Singh v. State of Punjab (2022), the Court noted:

"Section 34 IPC creates a deeming fiction by infusing and importing a criminal act constituting an offence committed by one, into others, in pursuance to a common intention. Onus is on the prosecution to prove the common intention to the satisfaction of the court. The quality of evidence will have to be substantial, concrete, definite and clear."

The Court further extracted the Supreme Court's observation that:

"The existence of common intention is obviously the duty of the prosecution to prove. However, a court has to analyse and assess the evidence before implicating a person under Section 34 IPC. A mere common intention per se may not attract Section 34 IPC, sans an action in furtherance."

The Bench also relied upon Sunil v. State of NCT of Delhi (2023), wherein the Supreme Court reiterated that liability under Section 34 IPC can arise only when there is proof of a common intention to commit the crime actually committed and the act is shown to have been done in furtherance of that shared intention. The Court noted that common intention cannot be presumed merely because multiple persons were present at the scene of the occurrence.

Examining the specific role attributed to the appellant, the Court observed that no overt act involving the use of any weapon had been assigned to him. The prosecution's case against him rested substantially on the allegation that he had shouted "Maro Sale Ko" from the rear of the bus. The Bench found that the evidence concerning this alleged exhortation suffered from inconsistencies and was not uniformly supported by all material witnesses.

The Court thereafter referred to Jainul Haque v. State of Bihar (1974), wherein the Supreme Court cautioned against readily accepting allegations of exhortation. The Court also relied upon Matadin v. State of Maharashtra (1998) and noted that the expression "Maro Sale Ko" does not necessarily imply an intention to kill and may equally signify an intention merely to assault or beat the victim.

Applying these principles to the facts of the case, the Bench found that there was no evidence of prior enmity between the parties, no evidence that the appellant knew that the other accused were carrying knives, and no convincing material establishing that he shared a common intention to commit murder. The Court also noticed discrepancies regarding the timing and circumstances of the alleged exhortation and the sequence of events narrated by different witnesses.

The Court further observed that the bus conductor, who, according to the prosecution, was present near the rear portion of the bus, did not support the allegation that the appellant had uttered the alleged exhortation or otherwise participated in the occurrence. These circumstances, according to the Court, significantly weakened the prosecution's case against the appellant.

Having evaluated the evidence in its entirety, the Court concluded that the prosecution had failed to establish beyond a reasonable doubt that the appellant shared a common intention with the principal assailant or that the requirements of Section 34 IPC stood satisfied.

Conclusion

Holding that the prosecution had failed to prove the appellant's guilt beyond a reasonable doubt, the Delhi High Court extended the benefit of doubt to him and set aside the conviction and sentence recorded by the Trial Court.

The Court consequently acquitted the appellant of the charge under Section 302 read with Section 34 IPC and allowed the appeal.

Cause Title: Shri Mukesh Kumar v. State/National Capital Territory of Delhi (Neutral Citation: 2026:DHC:5134-DB)

Appearances

Appellant: Himanshu Anand Gupta, Mansi Yadav, Karan Jain, Mike Desai and Shekhar Anand Gupta

Respondent: Aman Usman, APP with Manvendra Yadav and Atiq Ur Rehman

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