Abhishek Sharma vs The State Nct Of Delhi

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
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Reserved on: 29 July, 2026
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Date of Decision: 28 October, 2026
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Uploaded on: 28 October, 2026
# CNR No: DLHC010551332025
+ CRL.A. 1106/2025 & CRL.M.(BAIL) 1095/2026
ABHISHEK SHARMA ....Appellant
Through: Mr. R.S. Mishra, Mr. Yogendra and
Mr. Anand Mishra, Advs.
Versus
THE STATE NCT OF DELHI ....Respondent
Through: Mr. Ritesh Kumar Bahri, APP with
Mr. Lalit Luthra & Mr Randeep
Kumar, Advs.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE VIKAS MAHAJAN
JUDGMENT
Vikas Mahajan, J.
1. This hearing has been done through hybrid mode.
2. The present appeal under Section 415 of Bharatiya Nagarik Suraksha
Sanhita, 2023 [‘BNSS’] has been preferred by the Appellant, Abhishek
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Sharma, assailing the Judgment of Conviction dated 7 July 2025 and the
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Order on Sentence dated 15 July 2025 passed by the Ld. ASJ-02, South
West, Dwarka Courts, New Delhi in Sessions Case No.728/2021.
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3. Vide the impugned Judgment dated 7 July 2025, the Appellant was
convicted for the offences punishable under sections 302/201/34 of the Indian
Penal Code, 1860, arising out of FIR No.52/2021, registered at Police Station-
Uttam Nagar.
Signature Not Verified
CRL.A. 1106/2025 Page 1 of 27
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:28.10.2026
18:18:51

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4. Vide the Order on Sentence dated 15 July 2025, passed by the Trial
Court, the Appellant was sentenced to undergo life
imprisonment, with all sentences directed to run concurrently. The relevant
portion of the said order is reproduced hereunder:
“13. In view of facts and circumstances of the case, submissions
of the Ld. defence counsel for the convict and Ld. Addl. PP
for the State assisted by ld. counsel for complainant, convict
namely Abhishek Sharma is hereby sentenced to undergo
following punishments: -
(i) Imprisonment for 1ife with fine of Rs. 1,000/- for the
offence punishable under Section 302/34 IPC for
commission of murder of deceased Manoj. In case of
default to pay fine, the convict shall undergo simple
imprisonment of two months.
(ii) Imprisonment for three years with. fine of Rs. 1,000/- for
the offence punishable under Section 201/34 IPC for
causing disappearance of evidence. In case of default to
pay fine, the convict shall undergo simple imprisonment
of one month.”
5. Briefly stated, the case of the prosecution, as borne out from the
impugned Judgment, is that the Appellant was accused of committing the
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murder of one Manoj Kumar Jha on 31 January 2021 at about 8:00 PM, at a
vacant plot measuring 1300 square yards situated in front of House No. D-69,
Vijay Nagar, (hereinafter referred to as the ‘Vacant Plot’), along with one
1
CCL .
6. It is further alleged that in order to screen themselves from legal
punishment, the Appellant and the CCL burnt their upper clothes after the
incident, thereby attracting Section 201 IPC.
1
Child in Conflict with Law
Signature Not Verified
CRL.A. 1106/2025 Page 2 of 27
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:28.10.2026
18:18:51

7. The criminal law was set into motion with receipt of DD No. 78A on
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31 January 2021 at Police Station-Uttam Nagar. Pursuant thereto, SI Deepak
Kumar along with SI Leela Ram reached the spot i.e. the vacant plot, where a
wooden bed (‘ takhat’ ) with bloodstains was found lying. No eyewitness was
present at the spot at that stage. On enquiry, it transpired that the injured had
already been taken to DDU Hospital by his relatives, where, as per MLC No.
887/21, he was declared brought dead, having sustained stab injuries from a
sharp weapon. On this basis, FIR No. 52/2021 was registered at Police Station
Uttam Nagar for the offence under Section 302 IPC.
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8. On 1 February 2021, the statements of PW-1 Tun Tun Kumar Mishra,
PW-2 Krishna Nand Jha, PW-3 Vinod Kumar Jha and PW-5 Sulok Kumar Jha
were recorded under Section 161 of the Code of Criminal Procedure, 1973
(herein after referred to as the ‘CrPC’).
9. PW Krishna Nand Jha, brother-in-law of the deceased, stated that on
31st January 2021, at about 8:00 PM, he had joined the deceased and one PW
Vinod Kumar Jha, who were sitting near a bonfire at the said plot. The
deceased walked away to attend a phone call.
10. Shortly thereafter, upon hearing the deceased’s screams, PW Krishna
Nand Jha and PW Vinod Kumar Jha rushed to the spot and found him fallen
between two cars, bleeding heavily from stab wounds. The accused Abhishek
Sharma and the CCL were seen running away from the spot, which was
subsequently corroborated by the CCTV footage.
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11. On further enquiry, it emerged that on the previous evening i.e. 30
January 2021, between 7:00–7:30 PM, an altercation had taken place at the
Vacant Plot between the deceased on the one hand, and the Appellant and
CCL on the other, over their consumption of intoxicants at the said plot.
Signature Not Verified
CRL.A. 1106/2025 Page 3 of 27
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:28.10.2026
18:18:51

12. The CCTV footage recovered from a nearby shop showed the Appellant
and the CCL were running from the spot after the incident, the one holding
the knife was identified as CCL, and the other as the Appellant.
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13. On 1 February 2021, the post-mortem was conducted by PW Dr. B.N.
Mishra vide PM No. 209/21, and the cause of death was opined as cardiogenic
shock caused by tearing of the right atrium, as a result of stabbing over the
chest with a sharp-pointed weapon such as a knife. Injury no. 1 was found
sufficient to cause death in the ordinary course of nature.
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14. On 3 February 2021, the Appellant and CCL were apprehended from
DDA Park, Hastsal, Uttam Nagar, on the basis of secret information received
by the raiding team comprising HC Gopal Yadav and Ct. Ajay Kumar. The
Appellant, being 18 years of age, was arrested, while CCL, being 17 years of
age, was apprehended.
15. During personal search, a buttondar knife was recovered from the right
pocket of CCL’s under-pant. The pant and shoes worn by the Appellant and
CCL, as depicted in the CCTV footage, were seized. Both are alleged to have
disclosed that they had burnt their upper clothes at a plot at Gali No. 12, near
Balaji Road, Vikas Nagar, Uttam Nagar, to screen themselves from legal
punishment, pursuant to which the remnants of the burnt clothes were
recovered from the said spot.
16. CCL was sent to the Observation Home, Sewa Kutir, while the
Appellant was remanded to police custody. It may be noted at this stage that,
apart from the buttondar knife recovered from CCL, the Appellant has
separately stated, in his own disclosure statement, to have used a blade in the
assault, however, this second weapon i.e. the blade could not be recovered at
any stage of the investigation.
Signature Not Verified
CRL.A. 1106/2025 Page 4 of 27
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:28.10.2026
18:18:51

17. The recovered buttondar knife was sent to the FMD Department, DDU
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Hospital, for a medical opinion. Vide subsequent opinion dated 2 March
2021, PW Dr. B.N. Mishra opined that the injuries found on the deceased
could have been caused by the said knife. Age verification of both the
Appellant and CCL was also conducted during investigation.
18. Upon completion of investigation, a chargesheet, and thereafter a
supplementary chargesheet against the Appellant, were filed by the police
under Section 173 CrPC, while the CCL was produced before the Juvenile
Justice Board and continues to face trial before the said Board, as stated in the
status report filed by the State.
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19. Vide order dated 5 May 2022, the Trial Court framed charges under
Sections 302/201/34 IPC against the Appellant, to which he pleaded not guilty
and claimed trial.
20. During the course of the Trial, and to prove its case, the prosecution
examined 24 witnesses, of whom PW-2 Krishna Nand Jha, PW-3 Vinod
Kumar Jha, PW-5 Sulok Kumar Jha, PW-6 ASI Satpal, PW-10 Dr. B.N.
Mishra, PW-20 SI Leela Ram (first IO), PW-21 SI Deepak Kumar, PW-22
HC Ajay Kumar, PW-23 HC Gopal Yadav, and PW-24 Inspector Harpal
Singh (second IO) were treated as the material witnesses. However, the
prosecution’s case rests principally on the testimonies of PW-2, PW-3, PW-
10, and PW-20 to PW-24.
21. Thereafter, the statement of the Appellant was recorded under
Section 313 Cr.P.C., wherein he denied the evidence put to him and alleged
false implication, but he did not lead any defence evidence.
22. On appreciation of the evidence on record, the Trial Court by its
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impugned Judgment dated 7 July 2025 convicted the Appellant under
Signature Not Verified
CRL.A. 1106/2025 Page 5 of 27
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:28.10.2026
18:18:51

Sections 302/201/34 IPC, holding that the prosecution had proved its case
beyond reasonable doubt on the basis of the ocular and circumstantial
evidence on record. The operative portion of the impugned Judgment reads
thus:
“73. In the present case, indubitably there is no eye witness
and the prosecution had sought to establish the case against
the accused person from circumstantial evidence. It is trite to
say that in a case based on circumstantial evidence, the
circumstances from which the conclusion of guilt is to be
drawn have not only to be fully established but all the
circumstances so established should be of conclusive nature
and consistent with the hypothesis of the guilt of the accused.
Moreover, all the established circumstances should be
complete and there should be no gap in the chain of evidence.
On appreciation of entire 'evidence led by the prosecution
and applying the law laid down by Hon’ble Supreme Court
of India in Sharad Birdichand Sharda (Supra) , this court
has reached on the following conclusions: -
(1) From the facts and circumstances of the case, the
prosecution has proved reasonable doubt that deceased
Manoj Kumar was killed by accused person Abhishek
Sharma who shared common intention with CCL Raju
and his guilt has been fully established.
(2) From the evidence on record, prosecution has
successfully established that accused Abhishek had a
motive to kill deceased Manoj Kumar and accused
Abhishek with CCL Raju had shared common intention
to seek revenge for their insult from Manoj Kumar had
committed his murder, the facts established by the
prosecution indicating towards the guilt of accused
persons is consistent.
(3) The circumstances proved by the prosecution are,
conclusive in nature and tendency.
(4) The facts established by the prosecution have
excluded every possible hypotheses except the one
which has been proved by the prosecution.
Signature Not Verified
CRL.A. 1106/2025 Page 6 of 27
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:28.10.2026
18:18:51

(5) The chain of evidence led by the prosecution is so
complete that it does not leave any ground for
conclusion consistent with the innocence of accused
person and it has been proved by the prosecution that in
all probability, the accused person share common
intention with CCL Raju to kill Manoj Kumar.”
74. In the light of aforesaid discussion, this court is of the
considered opinion that prosecution has proved its case
beyond reasonable doubt against accused persons Abhishek
Sharma for the offence of murder and 201 IPC r/w Section
34 IPC .
75, Accordingly, accused person namely Abhishek Sharma
is convicted under Section 302/201/34 IPC for the
commission of murder of deceased Manoj Kumar .”
(emphasis supplied)
23. We have heard Mr. R.S. Mishra, learned counsel for the Appellant and
Mr. Ritesh Kumar Bahri, learned APP for the State and have perused the
record.
24. The Trial Court after examining the CCTV footage has recorded that
the act of stabbing is not captured in the CCTV footage. Further, on the basis
of the evidence, it came to the conclusion that there is no eye-witness to the
incident of accused stabbing the deceased, and the prosecution has sought to
establish the case against the accused from the circumstantial evidence.
25. Upon examination of the testimonies of the witnesses, we also find that
none of the prosecution witnesses have stated having actually witnessed the
incident of stabbing of the deceased by the accused person. The Trial Court
is, therefore, right in observing that the present case is based on circumstantial
evidence.
26. The prosecution has pressed into service the following circumstances
to bring home the guilt of the Appellant:
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CRL.A. 1106/2025 Page 7 of 27
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:28.10.2026
18:18:51

(i) Motive – An altercation had taken place between the deceased
Manoj Kumar Jha, and the Appellant and CCL on the other hand
on 30.01.2021, i.e., one day prior to the date of incident. The
deceased had told the Appellant and the CCL not to indulge into
intoxication in the 1300 sq.yrds vacant plot and leave from that
place. On the very next day, the incident of stabbing had taken
place.
(ii) Presence & identification - The Appellant had been seen running
from the spot after the stabbing incident on the next day i.e.
31.01.2021 by PW-2 and PW-3 confirming his presence and
participation.
(iii) Recovery - The offence weapon i.e. knife was recovered from the
CCL on his personal search. The burnt clothes worn by the
Appellant and the CCL were also recovered at their instance.
(iv) Medical evidence – (i) The post mortem report proves presence
of injuries on the person of the deceased including injury no.1
which was opined by PW-10 Dr. B.N. Mishra to be sufficient in
the ordinary course of nature to cause death; and (ii) The
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subsequent opinion of 2 March, 2021 by PW-10 Dr. B.N.
Mishra establishes that injuries on the dead body of the deceased
were caused by the knife produced before him.
27. Insofar as the first circumstance i.e. motive is concerned, PW-3 Vinod
Kumar Jha has proved the altercation that had taken place between the
deceased and the Appellant. He, in his testimony, has stated that the Appellant
on 30.01.2021 was smoking drugs along with his friend in the vacant plot
which was used for parking vehicles. He and the deceased told the Appellant
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CRL.A. 1106/2025 Page 8 of 27
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:28.10.2026
18:18:51

and his associate not to consume the drugs and they left the spot. However,
on the very next date, i.e. 31.01.2021, the said boys who were told to go away
from the vacant plot, stabbed the deceased Manoj Kumar Jha, and the
Appellant was one of them. The relevant extract from the testimony of PW-3
Vinod Kumar Jha is set out hereinbelow for the sake of ready reference:
“On 30.01.2021, accused Abhishek present in the Court today
(correctly identified) was smoking drugs alongwith his friend in
the vacant plot, which was used for parking. Myself and Manoj
Kr. Jha told accused and his associate not to consume drug. They
left the spot.
On next day i.e. 31.01.2021, I alongwith Manoj Kr. Jha went to
the plot as a vehicle of Manoj Kr. Jha arrived there. We were
sitting near fire. At about 8.00-8.30 pm, Manoj Kr. Jha received
a call and he went towards his vehicles, which were parked at a
distance of about 60 meters, while answering the call. Just after
2-3 minutes, I heard the noise of Manoj Kr. Jha, I went towards
him.
I saw the boys, who were told to go away from the vacant plot,
stabbing deceased Manoj Kr. Jha. Accused Abhishek was one of
them, who is present in the Court today.”
28. Insofar as circumstance no.(ii) viz. presence and identification of the
Appellant is concerned, though it is correct that none of the witnesses had
witnessed the actual incident of stabbing but PW-2 Krishna Nand Jha and
PW-3 Vinod Kumar Jha have testified having seen the Appellant running from
the spot immediately after the incident.
29. PW-2 Krishna Nand Jha, in his examination-in-chief, gave the
description of the Appellant and the CCL stating that one was little taller and
the other was of short height and the boy who was of shorter height was having
knife in his hands. The Appellant was correctly identified by PW-2 during
dock identification as one of the boys whom he saw in the CCTV footage. In
Signature Not Verified
CRL.A. 1106/2025 Page 9 of 27
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:28.10.2026
18:18:51

his cross-examination, he stated that ‘it is correct that I did not see the faces
of the boys, whom I saw running after the incident’ . However, during his re-
examination by the learned APP, he stated that he saw the faces of both
persons when they looked behind while running from the spot. Likewise, in
his further cross-examination, he stated that he saw the faces of the boys when
they looked behind while running. The relevant extract from the testimony of
PW-2 reads thus:
“…. I say two boys, one little taller and other of short height,
running from there. I also saw knife in the hands of the boy,
who was of shorter height .
xxx xxx xxx
I can identify those boys, whom I saw in the CCTV footage.
At this stage, witness points out towards accused Abhishek
Sharma (correctly identified) and states that he is one of those
boys whom he saw I the CCTV footage .
xxx xxx xxx
XXXXXXX by Sh. R.S. Mishra and Sh. Yogender Kumar, ld.
Counsel for accused.
…… it is correct that I did not see the faces of the boys, whom
I saw running after the incident.
xxx xxx xxx
Re-examination by Sh. Pramod Kumar, ld. Addl. PP for State.
I saw faces of both the persons running from the spot and later
on, when CCTV footage was shown to me, I told IO that
accused is one of those boys .
XXXXXXX by Sh. R.S. Mishra and Sh. Yogener Kumar, ld.
Counsel for accused.
I saw both those boys running in the opposite directions. I was
closest to them at the distance of 20 feet and both were running
in opposite directions. I only saw the face of those boys when
they looked behind while running. I had no other opportunity
to see the faces of those boys. It is incorrect to suggest that I have
deposed falsely that I saw the faces of those boys running from
Signature Not Verified
CRL.A. 1106/2025 Page 10 of 27
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:28.10.2026
18:18:51

the spot. It is incorrect to suggest that just to support prosecution
case, I have deposed falsely.”
(emphasis supplied)
30. Likewise, PW-3 Vinod Kumar Jha testified that he had seen the boys,
who were told to go away from the vacant plot, stabbing the deceased Manoj
Kumar Jha. However, the witness was confronted with his statement recorded
under Section 161 Cr.PC where it is not stated that he saw the accused
stabbing the deceased. But, in his cross-examination, he again volunteered and
stated only to the extent that he had seen the accused persons. The relevant
part of the testimony of PW-3 Vinod Kumar Jha is reproduced hereinbelow:
“[…] I saw the boys, who were told to go away from the vacant
plot, stabbing deceased Manoj Kumar Jha. Accused Abhishek
was one of them, who is present in the Court today .”
XXX By Sh. R.S. Mishra and Sh. Yogender Kumar, Ld.
Counsel for accused .
[….]When I reached near Manoj Kr. Jha, accused persons were
running in opposite directions. Many neighbours came at the
spot. I did not notice any specific person as I was busy in taking
care of Manoj Kr. Jha. Police recorded my statement on next
day at the place of occurrence. I told to police that I saw
accused stabbing the deceased. (Confronted with the statement
of the witness Ex.P3/A, where it is not so recorded.) Police did
not call me in the police station after recording my statement. I
did not notice as to what cloths were worn by accused. I just saw
that they were wearing full sleeves jacket. I did not notice
whether they were wearing full pants or shoes. It is incorrect to
suggest that I was not present at the spot. Vol. I am visible in the
CCTV footage.
xxx xxx xxx
[At this stage, CCTV footage bearing file no.
“ch20210131193307” is played from a pen-drive and is shown
to the witness. Pen-drive is now Ex.P-1. In the footage it is
appearing at 20:10:40 pm that I am sitting in front of bonfire.
Deceased is seen talking over phone and walking towards back
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CRL.A. 1106/2025 Page 11 of 27
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:28.10.2026
18:18:51

side of truck. After gap of about 40 seconds, accused persons
are seen running away from the truck towards the gali. ]
It is incorrect to suggest that I have wrongly identified accused
persons and they are not visible in the footage. Vol. Since I was
sitting near the spot, I have clearly seen the accused persons.
It is incorrect to suggest that I have only seen the accused
persons from behind or that I have deposed falsely at the
behest of IO. It is incorrect to suggest that accused persons
were wearing mask on their face. It is incorrect to suggest that
I cannot identify anyone from backside as it was dark and place
was not well lit or that it was dark, foggy winter night. It is
incorrect to suggest that accused persons were not present at
the spot at the alleged time of incident.”
(emphasis supplied)
31. The statement of PW-3 Vinod Kumar Jha to the extent he had seen the
boys stabbing the deceased Manoj Kumar Jha is a clear improvement over his
statement recorded by the police under Section 161 Cr.PC. Therefore, the
Trial Court rightly came to the conclusion that there is no eye-witness to the
incident of stabbing, however, the testimonies of PW-2 Krishna Nand Jha and
PW-3 Vinod Kumar Jha clearly establishes that the Appellant was correctly
identified as one of the two boys, who had come on 31.01.2021 and was seen
running after the incident of stabbing. Further, no explanation has been
offered by the Appellant about his presence at the crime spot, and he miserably
failed to discharge the burden of explaining the circumstances in terms of
Section 106 of the Indian Evidence Act, which were in his personal
knowledge.
32. The Trial Court after examining the CCTV footage has made the
following observations:
“60.2.2. [……] The CCTV footage also shows their presence at
the crimes spot. It can be clearly seen from the CCTV footage
that the two boys entered 1300 square yards plot from one side
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CRL.A. 1106/2025 Page 12 of 27
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:28.10.2026
18:18:51

and after sometime they were seen running from another side.
The pace at which the boys were seen running was not normal
and it appeared that they were running in a way that nobody
catches hold of them. From the CCTV footage it could be seen
that fire was lighting and there were three men surrounding it out
of which one walked away while talking on phone. Though the
act of stabbing is not captured on the CCTV footage but the
presence of accused in the 1300 square yards plot, the proximity
of time, the body language of the two boys while entering the plot
and the pace at which they exited the plot/running pace, all in all
point towards the guilt of the accused person. From CCTV
footage the overall atmosphere of the place was calm but after
the murder there was panic. There was no other person on the
spot who adds an element of asynchronicity in the entire place.
[……]”
33. The CCTV footage was also played before us during the course of
hearing of the present appeal. We fully agree with finding of the Trial Court
that though the act of stabbing is not captured on the CCTV but other factors
viz . (i) presence of Appellant and CCL in the vacant plot, (ii) the proximity of
time between the incident of stabbing and their presence, (iii) the suspicious
manner in which the two boys entered the plot, and (iv) the manner in which
they ran at fast pace immediately after the incident, point towards their
involvement in the incident of stabbing.
34. The circumstance no.(iii) is the recovery of offence weapon and the
burnt clothes. The offence weapon i.e. knife, Ex.P-2, was recovered from the
pocket of pant of the CCL during his personal search vide seizure memo,
Ex.PW-23/A, by PW-24 Insp Harpal Singh in the presence of witnesses
PW-23 HC Gopal Yadav and PW-22 HC Ajay Kumar. The said witnesses in
their testimonies have also given justification for not joining independent
witnesses. It is stated by them that the IO had requested 4-5 public persons but
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CRL.A. 1106/2025 Page 13 of 27
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:28.10.2026
18:18:51

no public person joined investigation despite request. Their testimony is
credible and there is nothing in their cross-examination which could raise
doubt about the said recovery. It is trite that the recovery cannot be discarded
merely because no independent witness was joined and the same has been
effected in the presence of the police officials, especially when testimony of
the police officials is found to be credible, and it has not been proved to the
contrary.
35. As regards burnt clothes, PW-24 Insp Harpal Singh stated that the same
were recovered on the basis of disclosure statements at the instance of the
Appellant and the CCL who led the police to a vacant plot and pointed out
towards the ash and disclosed that they burnt their upper clothes for destroying
the evidence. Almost to the similar effect are the testimonies of PW-22 and
PW-23. The remains/ash of burnt clothes were seized vide seizure memo, Ex.
PW-22/B. Nothing could be elicited during the cross-examination of the said
witnesses which could discredit the recovery of burnt clothes.
36. The Trial Court has thus, rightly recorded the following finding as
regard the recovery of weapon and the burnt clothes:
“60.4.2. In the instant case, weapon of offence is recovered
during the personal search of the CCL Raju by PW22, PW 23
and PW 24 and the same is Ex P2 and also the remains of clothes
that were burnt by the accused person Abhishek Sharma and
CCL Raju to shield them from legal punishment were recovered
as Ex 10 on the basis of disclosure statement from a vacant plot
gali no.12, near Balaji Road, Vikas Nagar, Uttam Nagar.
Pointing out memo of place of incident was also prepared at the
instance of accused Abhishek Sharma and CCL Raju which is Ex.
PW22/C. The investigating agency had no knowledge regarding
the said weapon and the burnt clothes, and same have been
recovered at instance of accused person Abhishek Sharma and
CCL Raju on the basis of disclosure statements made by them.
Signature Not Verified
CRL.A. 1106/2025 Page 14 of 27
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:28.10.2026
18:18:51

xxx xxx xxx
60.4.5 Since it is a vacant plot, much public movement is ousted.
Moreover, what has been recovered from the vacant plot is also
relevant. In the instant case the recovery is the remains of burnt
clothes at the instance of the accused person. No passerby would
have been interested in remains of burnt material and they would
have easily remained intact. The fact that the place from where
recovery is effected is in the personal knowledge of the accused
person cannot be ignored. The factum of burning the clothes was
in the knowledge of accused person Abhishek Sharma and CCL
Raju. Most importantly, the remains of burnt clothes had
shrunken nylon kind of material and the accused person were
seen to be wearing jackets of nylon kind material in the CCTV
footage. PW24 has withstood cross examination on the
abovesaid aspect.”
37. As regards, circumstance no.(iv) viz . medical evidence is concerned,
PW-10 Dr. B.N. Mishra, who conducted the post-mortem and prepared post-
mortem report, Ex.PW10/A, testified that the cause of death was cardiogenic
shock caused by tearing of the right atrium as a result of stabbing over the
chest by a sharp pointed weapon like a knife, etc., and injury no. 1, as
mentioned in the post-mortem report, was sufficient to cause death in the
ordinary course of nature. He also stated that vide his subsequent opinion
nd
dated 2 March, 2021 (Ex.PW10/B), on the basis of nature of injuries
sustained on the body of deceased and the nature of knife produced, he had
opined that all injuries sustained on the body could have been inflicted by the
weapon of offence i.e. knife. PW-10 was not cross-examined on the material
aspects of his testimony despite opportunity.
38. As regards the blade which the Appellant mentioned in his disclosure
statement, the same was never recovered at any stage as recorded in the police
report filed under section 173 CrPC.
Signature Not Verified
CRL.A. 1106/2025 Page 15 of 27
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:28.10.2026
18:18:51

39. The medical evidence in the form of post mortem report (Ex.PW10/A),
subsequent opinion (Ex.PW10/B) and testimony of PW-10 Dr. B.N. Mishra,
clearly suggest that all the injuries on the body of the deceased could have
been caused by the buttondar knife recovered from the CCL, and there is no
evidence on record to show the use of any second weapon.
40. The Trial Court also dealt with the contention of the defence that no
blood stains were found on the knife and no examination as to the finger prints
was done at the behest of the I.O. It was rightly held by the Trial Court that
this lapse on the part of the investigating agency cannot be considered to be
fatal as the knife was recovered from the CCL during his personal search and
it cannot be ruled out that the CCL and the Appellant might have washed the
knife so as to remove the blood stains in the same way they had burnt their
clothes.
41. Based on the above evidence, the Trial Court concluded that the
testimonies of PW-2 Krishna Nand Jha and PW-3 Vinod Kumar Jha are
credible and trustworthy and have also been corroborated by the prosecution
witnesses as well as the medical/scientific evidence.
42. Further, there is also medical evidence in the form of post-mortem
report prepared by PW-10 Dr. B.N. Mishra, who in his testimony opined that
injury no. 1, which was the result of stabbing over the chest by sharp pointed
weapon like knife, was sufficient to cause death in the ordinary course of
nature.
43. Therefore, from the medical evidence on record it is clearly established
that the injury was present on the dead body of the deceased. Further, since
the CCL was carrying a knife, there was an intention to inflict bodily injury,
that is to say, it was not accidental or unintentional. It has also been proved by
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By:NARENDRA SINGH
ASWAL
Signing Date:28.10.2026
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PW-10 Dr. B.N. Mishra that the injury no.1 was sufficient to cause death in
the ordinary course of nature. In the given circumstances, there is no doubt
that an offence of murder has been committed attracting clause (3) of Section
300 IPC.
44. The prosecution has also succeeded in proving the motive. An incident
had taken place on 30.01.2021 i.e. the day prior to the actual stabbing incident,
when PW-3 Vinod Kumar Jha and deceased Manoj Kumar Jha had told the
Appellant and his associate i.e. CCL not to consume drugs in the vacant plot
where they would park their vehicles. There is also cogent evidence in the
form of testimonies of PW-2, PW-3 and CCTV footage to show that the
Appellant along with the CCL had come on the next day i.e. 31.01.2021 at
about 8.00-8.30 pm, when the incident of stabbing took place.
45. Though there is no eye-witness to the actual incident of stabbing, but
the Appellant and the CCL were seen running after the incident of stabbing
and they have been correctly identified by PW-2 Krishna Nand Jha and
PW-3 Vinod Kumar Jha, during dock identification. In the absence of any
explanation offered by the Appellant for his presence at the crime spot on the
date of incident and further no explanation being offered as regard his conduct
i.e. to run away at fast pace immediately after the incident, definitely points
towards the involvement of the Appellant.
46. But the question which requires consideration is whether it could be
said that the Appellant shared a common intention with the CCL to cause the
death of the deceased, Manoj Kumar Jha, since there is not an iota of evidence
to throw light on the role played by the Appellant in the commission of the
offence.
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Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:28.10.2026
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47. The legal threshold for invoking Section 34 IPC has recently been
reiterated by the Apex Court in Constable 907 Surendra Singh v. State of
Uttarakhand, (2025) 5 SCC 433 , wherein it was observed:
“30. By now it is a settled principle of law that for convicting the
accused with the aid of Section 34 IPC the prosecution must
establish prior meetings of minds. It must be established that all
the accused had pre-planned and shared a common intention to
commit the crime with the accused who has actually committed
the crime. It must be established that the criminal act has been
done in furtherance of the common intention of all the accused.”
48. The legal position regarding the application of Section 34 IPC in such
factual scenarios is well-settled. In the case of Shambhu Kuer v. State of
Bihar, (1982) 1 SCC 486 , the Supreme Court dealt with a situation where the
Appellant had caught hold of the deceased and scuffled with him, while the
co-accused, Mandip, took out a knife and commenced the assault. The Court
held that from the mere fact that the Appellant caught hold of the deceased
and scuffled with him while the co-accused inflicted the knife blows, it could
not be inferred beyond reasonable doubt that the Appellant shared the
intention to murder the deceased. The Court concluded that, at most, the
Appellant was vicariously liable for an offence under Section 326 read with
Section 34 of the Penal Code, 1860. Relevant extract from the said judgment
is reproduced hereinbelow:
“…. From the mere fact that the appellant caught hold of the
deceased and scuffled with him, while Mandip took out a knife
and commenced the assault, it cannot be inferred beyond
reasonable doubt, that he shared the intention of Mandip to
murder the deceased. At the most, he was vicariously liable for
an offence under Section 326 read with Section 34, Penal Code.
We therefore, partly allow this appeal, alter the conviction of the
appellant to one under Section 326 read with Section 34, IPC and
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ASWAL
Signing Date:28.10.2026
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sentence him to imprisonment already undergone, which, we are
told, ii about 6 1/2 years.”
(emphasis supplied)
49. Similarly, in the case of Laxmanji and Another v. State of Gujarat,
(2008) 17 SCC 48 , the Supreme Court evaluated a factual scenario where the
Appellants were unarmed and caught hold of the deceased, while the principal
accused, armed with a “ Rampuri ” knife, inflicted fatal knife-blows. The Court
categorically ruled that the unarmed Appellant could not be attributed any
common intention to cause the murder of the deceased. The Court observed
that while common intention can be formed in the course of the occurrence, if
the participation of the accused in the crime is proved but the common
intention to murder is absent, Section 34 cannot be invoked to sustain a
conviction under Section 302.
“11. The factual scenario as noted above goes to show that the
appellant cannot be attributed any common intention to cause the
murder of the deceased. In order to bring a case under Section
34 it is not necessary that there must be a prior conspiracy or
premeditation. The common intention can be formed in the
course of occurrence. To apply Section 34 apart from the fact
that there should be two or more accused, two factors must be
established : (i) common intention, and (ii) participation of the
accused in the commission of an offence. If common intention
is proved but no overt act is attributed to the individual accused,
Section 34 will be attracted as essentially it involves vicarious
liability. But if participation of the accused in the crime is
proved and common intention is absent, Section 34 cannot be
invoked. (See Jai Bhagwan v. State of Haryana [(1999) 3 SCC
102 : 1999 SCC (Cri) 388 : AIR 1999 SC 1083].)
12. In the background facts, the appropriate conviction would
be under Section 326 read with Section 34 IPC. Custodial
sentence of three years would meet the ends of justice . ”
(emphasis supplied)
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ASWAL
Signing Date:28.10.2026
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50. The Supreme Court further cautioned against the mechanical spreading
of vicarious liability in Viji and Another v. State of Karnataka, (2008) 15
SCC 786 , where Accused no. 1 had merely caught hold of the deceased while
the co-accused inflicted the lethal blows. Altering the conviction of Accused
no.1 to Section 326 read with Section 34 IPC, the Court held:
“20. Now, this Court has held in several cases that there are
situations in which several accused participate in an assault and
there is often the tendency to spread the liability to all of them
whenever a conviction is recorded and vice versa where an
acquittal results, regardless of the very fundamental proposition
of criminal law that even in such instances where there may be
a charge of common intention, unlawful assembly or rioting,
that the court is still required to sift the evidence and decide as
to whether there is evidence of commonality of intent on the
part of all the accused or whether a distinction will have to be
made between some of them and the rest .
21. Criminal law undoubtedly admits to the proposition that
commonality of intent may develop on the spot but on the other
hand, citing the present case, the intention of the group may have
been to assault the victim whereas one or more of the persons
may have acted otherwise and would possibly qualify
individually for a heavier conviction and sentence. Undoubtedly,
the court will go by the weapons used, the overt acts attributed,
the degree of force that was exerted and such other finer
features of the incident while recording its findings. This is very
important because it is equally essential that no accused person
should end up with a heavier liability than what is strictly
contemplated by the law and conversely, that there should not
be a failure of justice through too light a consequence or
wrongful exoneration. These are all very fundamental
principles of evaluation of evidence and of criminal
jurisprudence .
xxxx xxxx xxxx xxxx
25. We find considerable force in the argument. In view of
acquittal of Accused 2 to 6 and in the light of the ocular
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ASWAL
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evidence that Accused 7 assaulted deceased John Peter while
Accused 1 merely caught hold of the deceased, in our opinion,
ends of justice would be met if we convict Accused 7 for an
offence punishable under Section 326 IPC and Accused 1 for
an offence punishable under Section 326 read with Section 34
IPC .”
(emphasis supplied)
51. In Darshan Singh and Anr. v. State, 2013 SCC OnLine Del 5047 , the
Division Bench of this Court also took a similar view. The Court was dealing
with a case where the Appellants exhorted the main accused by shouting
"bach ke na jaane pave" before the fatal stab was dealt by the main accused.
Despite such overt act, this Court ruled out the application of Section 302 read
with Section 34 IPC and altered the conviction of Appellants therein to
Section 326 read with Section 34 IPC, observing as under:
“31. Now dealing with the last contention of the counsel that the
appellants herein were not having common intention under
section 34 IPC. Common intention as envisaged under Section
34 IPC is an exception to Rule of evidence. It lays down the
principle of constructive liability, wherein if one person also
commits the crime, all the other persons who were sharing a
common intention with them, will also be liable. A person may be
having a similar intention like other, but a similar intention
becomes common when they mutually agree to commit an offence
conjointly i.e. there is meeting of mind consensus ad idem. This
mutual agreement results into a mutual agency, wherein one
person represents the other and therefore even if one person
commits the offence, it is deemed that all of them have committed
the same. It is further pertinent to mention here that for proving
common intention, it is essential to prove that there was a
meeting of mind. The burden of proving the meeting of minds is
on the prosecution. The burden is strict and the court shall not
presume anything till proved .
32. However as far as appellant No. 1 and appellant no. 2 are
concerned, there is nothing proved on record by the prosecution
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ASWAL
Signing Date:28.10.2026
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that they had any common intention to kill the deceased or that
they had any previous knowledge of the fact that the accused
was carrying a dagger with him. Merely by uttering words like
“bach ke na jaane pave”, it cannot be concluded that the
appellants were having a common intention with accused to
cause death of the deceased .
33. In the matter of Sanjeev Alias Sonu & Birender @ Boya v.
State of Rajasthan Crl. A. No. 897/2010 Decided On :
24.05.2013, wherein a sudden fight ensued between two groups
and on the spur of moment one accused caused a stab injury to
the deceased, however prosecution failed to prove that the co-
accused share common intention, the division bench of this Court
convicted the other co-accused for the offence under section 326
read with Section 34 IPC.
34. In another case of Tirthi Lal v. State of Punjab, Criminal
Appeal No. 63-DB of 1996 Decided On : 30.04.1998 (Punjab
and Haryana High Court) wherein in a sudden fight hot words
were exchanged between the accused and deceased and without
any premeditation, co-accused inflicted single knife blow on the
body of the deceased, while appellant caught hold of the hands
of the deceased. The Court held that the appellant cannot be
said to have shared common intention to cause death of the
deceased and accordingly he was convicted under section 326
read with section 34 IPC.
35. In the view of the aforesaid, the judgment and the order of
th
the learned Additional Sessions Judge dated 28 August 1998
th
and 29 August 1998, respectively, convicting the appellants for
the offence punishable under Section 302 IPC is modified to
the extent that the appellants are convicted under section 326
read with section 34 IPC and accordingly the sentence of life
imprisonment imposed upon them by the Ld. trial court is
converted to the Sentence of the period already undergone by
them .”
(emphasis supplied)
52. The principle that emerges from these decisions is that even physical
participation in the assault does not by itself establish a common intention to
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ASWAL
Signing Date:28.10.2026
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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.
53. Reference may also be had to the decision of the Supreme Court in Shri
Kishan & Ors. v. State of U.P., (1972) 2 SCC 537 . In the said case, four
accused persons had inflicted injuries to the deceased. Apart from the one
injury on the head, which proved fatal, the other injuries were not of a very
serious nature. The injuries suffered by another injured person were simple in
nature. It was not clear from the prosecution evidence as to which one of the
accused-appellants inflicted the fatal blow on the head of the deceased. In this
factual backdrop, the Hon’ble Supreme Court held that the finding of the High
Court in the circumstances go to show that the common intention of the
accused was to cause grievance injury to the victim. The fact that one of them
exceeded his bounds and gave a fatal blow on the head of the deceased would
make him personally liable for the fatal injury, but so far as the other three are
concerned, they can be held liable only for the injury which was caused in
furtherance of the common intention and not for the fatal injury.
54. Further, it was concluded that as it is not possible from the material on
record to find out as to which one of the accused gave the fatal blow, each one
of the four accused were held guilty of the offence under Section 325 IPC and
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ASWAL
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were sentenced to undergo rigorous imprisonment for a period of five years.
The relevant extract from the said decision reads thus:
“6. There was no previous enmity between the accused-
appellants on the one hand and Seru deceased and Sadaphal
(PW) on the other. The occurrence was the offshoot of a trifling
incident in the nature of a scuffle between two urchins. Nandlal,
it appears then went weeping and told his father that he had been
beaten by Seru and Sadaphal. The four accused thereupon
protested to Seru and Sadaphal for the beating given to Nandlal
and also belaboured them with lathis. Five injuries were caused
to Seru. Apart from the one injury on the head, which proved
fatal, the other injuries were not of a very serious nature.
Sadaphal had seven injuries all of which were simple in nature.
The prosecution evidence, as observed by the High Court, does
not indicate as to which one of the accused appellants inflicted
the fatal blow on the head of Seru. As such, none of the accused
can be held to be personally liable for the fatal injury. The
liability can only be vicarious under Section 34 of the Penal
Code, 1860 and, as such, we have to find out as to what was the
common intention of the accused in furtherance of which they
caused injuries to Seru and Sadaphal. In this context we find that
the High Court has arrived at the following finding:
“There could, therefore, be no doubt that the common
intention of the appellants was to give a severe beating to
Seru and Sadaphal.”
The above finding as well as the broad circumstances of the
case go to show that the common intention of the accused was
to cause grievous injury to the victim. The fact that one of them
exceeded 'the bound and gave a fatal blow on the head of the
deceased would make him personally liable for the fatal injury,
but so far as the other three are concerned, they can be held
liable only for the injuries which were caused in furtherance of
the common intention and not for the fatal injury. As it is not
possible on the material on record to find out as to which one
of the accused gave the fatal blow, there is no escape from the
conclusion that each one of the four accused can only be guilty
of the offence under section 325 read with section 34 Indian
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ASWAL
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Penal Code. We accordingly alter the conviction of each of the
accused-appellants from under section 302 read with section 34
Indian Penal Code to that under s. 325 read with s. 34 Indian
Penal Code. Each of them is sentenced to undergo rigorous
imprisonment for a period of five years on that count. The
sentence of rigorous imprisonment for a period of one year
awarded to each of the accused under section 323 read with
section 34 Indian Penal Code would run concurrently with the
above sentence. The appeal is allowed to that extent.”
(emphasis supplied)
55. In the present case as well, the evidence is completely lacking as to who
gave the fatal blow.
56. As per the case of the prosecution in the charge-sheet, the knife was
seen by the PWs in the hands of the CCL. The recovery of the said knife was
also effected from the CCL during his personal search. In the absence of any
eye-witness to the actual incident of stabbing, and on the basis of the evidence
on record, no finding can be recorded that the stab injury i.e. injury no. 1 which
proved to be fatal was inflicted by the Appellant nor there is any evidence on
record to show any overt act like holding of hands of the deceased by the
Appellant, when the fatal injury was inflicted.
57. Even PW-3 Vinod Kumar Jha in his testimony has only stated to the
effect that on 30.01.2021 when the deceased had asked the accused persons
not to consume drugs in the vacant plot, they had simply left. In his testimony,
he does not speak about any threat to kill the deceased having been extended
by the Appellant wherefrom it could be inferred that the Appellant shared a
common intention to cause his death.
58. There is only one fatal injury i.e. injury no.1 and there is no evidence
to show that the Appellant was carrying any weapon in his hand nor there is
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ASWAL
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an iota of evidence to attribute any overt act to the Appellant, therefore, it is
also difficult to infer from the evidence that the Appellant shared a common
intention to cause the death of deceased Manoj Kumar Jha.
59. 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.
60. The Trial Court, while passing the impugned judgment, however, erred
in concluding that the facts established by the prosecution left no hypotheses
other than that the Appellant shared a common intention to kill the deceased,
Manoj Kumar Jha.
61. We, accordingly, modify the impugned judgment to the extent it
convicts the Appellant under Section 302 read with Section 34 IPC, and
convict the Appellant for the offence under Section 326 read with Section 34
IPC.
62. The conviction of the Appellant under Section 201 IPC read with
Section 34 IPC is upheld, as the prosecution has successfully proved through
the testimonies of PW-22, PW-23, and PW-24 that the Appellant burnt his
upper clothes to cause the disappearance of evidence and to screen himself
from legal punishment. The sentence of 3 years imprisonment and fine of
Rs. 1,000/- for the offence under Section 201/34 IPC shall remain undisturbed.
63. A perusal of the Nominal Roll reveals that the Appellant has undergone
an actual period of detention of 5 years and 8 months (approx.). Thus, the
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ASWAL
Signing Date:28.10.2026
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sentence awarded for offence under Section 201/34 IPC, which was directed
to run concurrently, has already been served by the Appellant.
64. For the conviction under Section 326 read with Section 34 IPC, the
sentence for the period already undergone, according to us, will serve the ends
of justice. Ordered accordingly.
65. The appeal is, therefore, partly allowed to the extent indicated above.
The pending applications, if any, also stand disposed of.
66. The Appellant shall be released forthwith, if not required in any other
case.
67. A copy of this judgment be transmitted to the concerned Jail
Superintendent for necessary information and immediate compliance.
68. Order to be uploaded on the website of this Court forthwith.
VIKAS MAHAJAN
JUDGE
PRATHIBA M. SINGH
JUDGE
OCTOBER 28, 2026
aj/jg
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Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:28.10.2026
18:18:51