Mukesh Kumar vs State / National Capital Territory Of Delhi
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 02.05.2026
Pronounced on: 18.06.2026
+ CRL.A. 602/2004
SHRI MUKESH KUMAR .....Appellant
Through: Mr.Himanshu Anand Gupta,
Ms.Mansi Yadav, Mr. Karan
Jain, Mr.Mike Desai, and
Mr.Shekhar Anand Gupta,
Advs.
versus
STATE/ NATIONAL CAPITAL TERRITORY OF DELHI
.....Respondent
Through: Mr.Aman Usman, APP with
Mr.Manvendra Yadav and
Mr.Atiq Ur Rehman, Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MR. JUSTICE RAVINDER DUDEJA
J U D G M E N T
NAVIN CHAWLA, J.
1. This appeal has been preferred by the appellant, assailing the
Judgment dated 10.08.2004 passed by the learned Additional Sessions
Judge, New Delhi (hereinafter referred to as „Trial Court‟) in S.C. No.
72/1995, arising out of FIR No. 592/83, registered at Police Station,
Lajpat Nagar, vide which the appellant was convicted for the offence
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punishable under Section 302 read with Section 34 of the Indian Penal
Code, 1860 („IPC‟).
2. The appellant further challenges the Order dated 19.08.2004
passed by the learned Trial Court, whereby the appellant has been
sentenced to undergo imprisonment for life, with fine of Rs.1,000/-,
and in default, to undergo further simple imprisonment for one month.
CASE OF THE PROSECUTION
3. Briefly stated, it is the case of the prosecution that:
a. On 01.12.1983, a telephonic information was received in
P.S. Lajpat Nagar through PW-2/ Ct. Rup Singh posted at
AIIMS Hospital regarding the admission of the deceased-
Vinod with knife injuries sustained while he was in bus route
no. 431 at Gupta Market Bus Stand Right Road. He had been
admitted in the hospital by PW-4/ HC Jagpal Singh . The
information was recorded in DD No. 16A and handed over
to PW-27/ SI Suraj Parkash .
b. Thereafter, PW-27/ SI Suraj Parkash along with Const.
Lachhman Dass decided to head to the AIIMS Hospital.
While leaving for the hospital, they met the driver, PW-
10/ Prem Chand and conductor, PW-13/ Siripal Singh of the
DTC bus, who were bringing injured PW-5/ Usha to the
police station. They took her to the hospital as well for
treatment.
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c. On reaching the hospital, the deceased was found in an
injured condition and the doctor opined that his injuries were
dangerous and caused by a sharp object. He was declared
unfit to make a statement.
d. PW-27/ SI Suraj Parkash then recorded the statement of PW-
5/ Usha, on the basis of which the FIR was registered against
unknown persons.
e. In her statement, PW-5/ Usha stated that she was working as
a nurse in Safdarjung Hospital and was on visiting terms
with the deceased. On 01.12.1983, she along with her friend
PW-7/ Alka had gone to Lajpat Nagar with the deceased, who
was also accompanied by his two friends, PW-11/ Ashok and
PW-6/ Naginder Kumar . They all took food and then boarded
the bus route No.431 for Safdarjung. While she and
PW-7/ Alka sat on the ladies seat in the bus on the left hand
side, the deceased sat on the side seat. Meanwhile, three
persons standing on the side of the driver started talking to
each other by pointing out towards them and thereafter all
three of them came near their seat and started misbehaving
with them. The deceased told them to behave, upon which
one of those three persons took out a knife and stabbed the
deceased on the back. That person proceeded towards them
and when PW-5/ Usha protested, the said person attacked her
also with the knife and she received a scratch on left side of
her chin. She gave the description of the person who
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attacked them to be of 20-25 years of age with average
height and strong built. She also gave the description of the
clothes worn by the assailant. She further stated that the two
associates of the assailant were also threatening to kill them.
They were all stated to be young men. She stated that after
giving knife blow to them, all the three culprits got down
from the bus and went away. The deceased tried to chase
them and they got separated from the deceased. The bus was
thereafter brought to the Police Station, Lajpat Nagar, from
where she had been taken to AIIMS where the deceased was
also admitted.
f. On 02.12.1993, the deceased, unfortunately, succumbed to
his injuries.
g. Thereafter, on 03.12.1993, the statements of PW-6/ Naginder
Kumar and PW-11/ Ashok were recorded. Allegations of
being physically assaulted by the miscreants were also
levelled by PW-6/ Naginder Kumar .
h. On 27.12.1983, PW-7/ Alka went to the Police Station and
told the police that one of the accused who had participated
in the incident was standing at Garhi Mod. She along with
the police went to the place from where accused-Shyam Lal
was arrested. Basis his disclosure, accused-Mukesh Kumar
(the appellant herein) and accused-Balvinder were also
arrested on the same day, while accused Charanjit was
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arrested on 30.12.1983. Basis the disclosure statement of
accused-Balvinder, a knife was also recovered.
i. On 05.01.1984, all the accused persons including the
appellant refused to participate in the Test Identification
Parade (TIP).
j. On completion of investigation, a Charge-Sheet was filed
against all the accused, including the appellant herein, under
Sections 302/307/34 IPC and under Sections 25/27 of the
Arms Act, 1959 (Arms Act).
PROCEEDINGS BEFORE THE LEARNED TRIAL COURT
4. Thereafter, the learned Trial Court framed the following
charges against the accused persons:
“That you Balvinder s/o Inder Singh,
Charanjit Singh s/o Madan Mohan, Shyam Lal
s/o Kishan Lal and Mukesh s/o Baldev Raj on
1.12.83 at about 8.45p.m. in bus route no.431
near bus stand Gupta Market, Lajpat Nagar,
New Delhi within the jurisdiction of P.S.
Lajpat Nagar in furtherance of the common
intention of you all committed the murder of
Vinod Kumar who was stabbed by Balvindeer
Singh with a knife and thereby committed an
offence punishable u/s 302 read with S.34
I.P.C. and within my cognizance.
Secondly, on the same date, time and place in
furtherance of the common intention of you all
Balvinder Singh and Charanjit stabbed Ashok
and Kumari Usha with knives with the
intention and knowledge and under such
circumstances that it death would have caused
to them, you would have been guilty of murder
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and thereby committed an offence punishable
u/s 307/34 I.P.C and within my cognizance.
And I hereby direct that you be tried by this
court on the abovesaid charges.”
5. Additional charges under Sections 25, 27, 54 and 59 of the
Arms Act were also framed against accused-Balvinder Singh and
accused-Charanjit.
6. The accused persons pleaded not guilty and claimed Trial.
7. In order to prove its case, the prosecution examined twenty
eight witnesses, including the purported eye-witnesses/victims, the
bus conductor, police officials and other formal witnesses.
8. Unfortunately, accused-Charanjit died during the Trial and the
proceedings against him were terminated.
9. The statements of the remaining accused persons, that is,
Balvinder, Mukesh Kumar and Shyam Lal were recorded under
Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C.). They
denied the incriminating evidence against them, claimed false
implication, and led defence evidence. The appellant brought forth
DW-2/ Baldev Raj , father of the appellant, who deposed that on the
date of the alleged incident, the appellant was not even in Delhi.
IMPUGNED ORDERS OF CONVICTION AND ON SENTENCE
10. The learned Trial Court, in the impugned judgment of
conviction, in so far as the charge pertaining to Section 302 of the IPC
is concerned, opined that the occurrence of the incident in question
and the identity of the accused persons stood proved, basis the
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testimonies of the eye-witnesses. It was held that PW-5/ Usha
identified accused-Balvinder in Court as the person who stabbed her
and the deceased. She further identified accused-Charanjit and
accused-Shyam Lal as the persons who gave fist blows to her. It was
opined that PW-7/ Alka and PW-11/ Ashok had identified accused-
Charanjit as the person who gave the knife blow to PW-11/ Ashok .
Further, the appellant had been identified in Court by PW-6/ Naginder
Kumar and PW-7 /Alka as the one who had exhorted from the back of
the bus. It was held that there were only minor improvements in the
statements of these eye-witnesses, which did not go to the root of the
case, and that there was no reason to falsely implicate the accused
persons. Reliance was also placed on the testimonies of the driver and
the bus conductor, which the learned Trial Court found to be in
support of the prosecution‟s case.
11. It was opined that although the accused persons were arrested
after around 27 days from the date of the incident and were not named
in the FIR, there were no infirmity in the prosecution‟s case regarding
the manner of their arrest, the subsequent disclosure statements made,
and the recovery of the knife on the basis of the statement of accused-
Balvinder.
12. The story of the accused persons of them being shown to the
witnesses prior to the TIP was disbelieved, and it was held that the
accused persons had been kept in muffled face throughout. It was held
that their refusal to participate in the TIP would lead to a presumption
being drawn against them.
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13. As regards the intention to cause such bodily injuries which are
likely to, or are sufficient to cause death in the ordinary course of
nature, it was held that the intensity of the knife blows was such that it
caused the death of the deceased. Reliance was placed on the post-
mortem report of the deceased as also the medical opinion given by
PW-26/ Dr. Chander Kant .
14. It was held that, therefore, the accused persons were guilty of
the offence under Section 302 read with Section 34 of the IPC.
15. In so far as the charge pertaining to Section 307 of the IPC is
concerned, it was opined that both PW-5/ Usha and PW-11/ Ashok had
stated that it was accused-Balvinder who had injured PW-5/ Usha with
a knife while it was accused-Charanjit who had injured PW-11/ Ashok .
It was highlighted that as accused-Charanjit had expired, the
proceedings against him had abated. In so far as the injuries sustained
by PW-5 /Usha are concerned, placing reliance on her MLC report, it
was opined that the same were simple in nature and the accused-
Balvinder was guilty of offence under Section 324 of the IPC. He was
also held guilty of offence under Sections 25 and 27 of the Arms Act
on account of the recovery of the knife made on the basis of his
disclosure statement.
16. Thereafter, the order on sentence dated 19.08.2004 was passed,
imposing the sentence on the appellant, as has been noted
hereinabove.
17. The sentence of the appellant was suspended by this Court vide
order dated 03.05.2005.
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18. It is pertinent to mention that the appeals filed by accused-
Balvinder and accused-Shyam Lal against the impugned orders stand
abated vide orders dated 10.05.2012 and 19.12.2013, respectively.
SUBMISSIONS MADE BY THE LEARNED COUNSEL FOR THE
APPELLANT
19. The learned counsel for the appellant submits that the
statements of the eye-witnesses suffer from various material
contradictions that go to the very root of the prosecution‟s case and
ought not to have been relied upon in order to establish the guilt of the
appellant.
20. He submits that there are various infirmities in the sequence of
sitting of the witnesses in the bus. While PW-5/ Usha states that the
deceased got a seat on the adjoining berth from where she and PW-
7/ Alka were sitting, and that PW-11/ Ashok got a seat immediately
behind the deceased, in contrast, PW-6 /Naginder Kumar states that
PW-11/ Ashok had occupied the seat to the right side of PW-5/ Usha
and PW-7 /Alka, while the deceased sat behind him.
21. He submits that further contradictions exist with regard to
sequence in which the alleged accused persons entered the bus, in as
much as, PW-5/ Usha and PW-7/ Alka do not mention anything
regarding the entry of the appellant into the bus, which differs from
the statements of PW-6/ Naginder Kumar and PW-11/ Ashok, who both
state that the appellant entered from the back door of the bus.
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22. He submits that the sequence and nature of the alleged attacks
as also the identity of the assailants involved, differs in the testimonies
of the eye-witnesses. While PW-5/ Usha states that the deceased was
stabbed by accused-Balvinder on his right buttock, PW-6/ Naginder
Kumar states that the deceased was stabbed by the accused-Balvinder
in his back. Further, while PW-5/ Usha states that she heard two
whistles from behind followed by the words „ Maro Sale Ko‟, PW-
6/ Naginder Kumar does not mention hearing any whistling sound .
While PW-5/ Usha , PW-6/ Naginder Kumar and PW-11/ Ashok state
that PW-5/ Usha was stabbed after the stabbing of PW-11/ Ashok ; PW-
7/ Alka states that PW-11/ Ashok was stabbed after PW-5/ Usha .
23. He further highlights that the testimony of PW-5/ Usha is also at
variance with her statement under Section 161 of the Cr.P.C., wherein
she did not mention that the deceased was stabbed on his right buttock
or that she heard someone whistling prior to exhorting „ Maro Sale
Ko ‟.
24. He submits that in so far as the TIP is concerned, no
presumption can be drawn again the appellant as he was admittedly
shown to persons prior to the same being conducted. He submits that
hence, the dock identification of the appellant by some of the eye-
witnesses is also of no consequence. He submits that even otherwise,
in the dock identification it has come out that one out of the four main
eye-witnesses, that is, PW-5/ Usha, never saw the person that allegedly
exhorted from the back of the bus and did not recognise the appellant.
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25. He submits that there were also discrepancies in the testimonies
of the eye-witnesses regarding the involvement of the appellant in
giving fist blows to PW-6 /Naginder Kumar , a fact which was not even
mentioned in the charge framed against him. He submits that even a
question to this effect was not put to the appellant at the time of
recording his statement under Section 313 of the Cr.P.C.
26. The learned counsel for the appellant further submits that
although it was the case of the prosecution that the bus conductor,
PW-13/ Siripal Singh, was at the back of the bus and allegedly the
appellant also entered from the back door of the bus, PW-13/ Siripal
Singh does not in his testimony state that he heard anyone yell „ Maro
Sale Ko ‟, let alone give fist blows to anyone.
27. He submits that there is also no mention of common intention in
the statement of the appellant recorded under Section 313 of the
Cr.P.C..
28. Basis the above, he submits that the prosecution has not been
able to prove the guilt of the appellant and the impugned orders are
liable to be set aside.
SUBMISSIONS MADE BY THE LEARNED ADDITIONAL
PUBLIC PROSECUTOR FOR THE RESPONDENT
29. Mr. Aman Usman, the learned Additional Public Prosecutor,
submits that there is no merit in the submission of the learned counsel
for the appellant that the appellant was shown to the witnesses prior to
the TIP. The appellant was brought in muffled face to the Court and
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all the requisite processes for conducting TIP were duly followed. The
onus of proving that the accused had been shown to the witnesses
prior to the TIP, is on the accused. He submits that it is settled law that
once the TIP is refused by an accused, an adverse inference can be
drawn against him.
30. He submits that the identity of the appellant as the person who
had exhorted to the other accused persons and even participated in the
assault, has been established by the testimony of PW-7 /Alka , PW-
6 /Naginder Kumar and PW-11 /Ashok . He submits that it is not refuted
that there was no prior enmity between the appellant and the
witnesses, and hence, there exists no reason for the witnesses to
falsely implicate the appellant.
31. He highlights that just because an eye-witness did not identify
the appellant, this fact alone cannot lead to the acquittal of the
appellant. He submits that it is settled law that even if single witness
identifies an accused, it is enough to convict him.
32. He submits that the common intention of the assailants arose
when they boarded the bus with knives.
33. He submits that minor contradictions in the statements of the
witnesses pointed out by the learned counsel for the appellant, are not
sufficient to create a doubt in favour of the appellant. With the passage
of time and fading memory, these contradictions can occur but no
emphasis can be placed on the same to throw out the case of the
prosecution.
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34. He submits that hence, there is enough evidence to establish the
guilt of the appellant and that the conviction recorded by the learned
Trial Court is well-founded and calls for no interference by this Court.
ANALYSIS AND FINDINGS
35. We have considered the submissions made by the learned
counsels for the parties and perused the record.
36. The case of the prosecution rests primarily on the testimony of
the eye-witnesses, the appellant‟s refusal to participate in TIP
proceedings and his subsequent dock identification, as also on other
circumstantial evidence.
TIP and Dock Identification
37. As far as the law concerning TIP is concerned, it is no longer
res integra that, prior to the TIP being conducted, an accused person
must not be shown to the witnesses. The Supreme Court in Gireesan
Nair & Ors. v. State of Kerala , (2023) 1 SCC 180, has held that if an
accused person is shown to witnesses at any prior point of time, not
only is the TIP inadmissible, even the subsequent dock identification
of such an accused by witnesses is inconsequential. We quote from the
said judgment as under:
“ 31. In cases where the witnesses have had
ample opportunity to see the accused before
the identification parade is held, it may
adversely affect the trial. It is the duty of the
prosecution to establish before the court that
right from the day of arrest, the accused was
kept “baparda” to rule out the possibility of
their face being seen while in police custody. If
the witnesses had the opportunity to see the
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accused before the TIP, be it in any form i.e.
physically, through photographs or via media
(newspapers, television, etc.), the evidence of
the TIP is not admissible as a valid piece of
evidence (Lal Singh v. State of U.P.
and Suryamoorthi v. Govindaswamy).
32. If identification in the TIP has taken place
after the accused is shown to the witnesses,
then not only is the evidence of TIP
inadmissible, even an identification in a court
during trial is meaningless (Sk. Umar Ahmed
Shaikh v. State of Maharashtra). Even a TIP
conducted in the presence of a police officer is
inadmissible in light of Section 162 of the
Code of Criminal Procedure, 1973
(Chunthuram v. State of
Chhattisgarh and Ramkishan Mithanlal
Sharma v. State of Bombay).”
38. In Raj Kumar@Bheema v. State of NCT of Delhi , 2025 INSC
1322, the Supreme Court opined that no adverse inference can be
drawn against accused persons for non-participation in TIP
proceedings in scenarios wherein the authenticity of the proceedings
themselves are under serious doubt. It was held as under:
“ 65. In this view of the matter, the prosecution
version that efforts made to subject the
accused to TIP failed on account of their
refusal, stands refuted. While the refusal of the
appellant to participate in the TIP may, prima
facie, invite an adverse inference, mere such
inference cannot support the theory of
identification when the very authenticity of the
TIP is under a serious cloud of doubt. When it
stands established from the record that the TIP
attempted by the prosecution was
fundamentally flawed, and a doubt is created
that the identifying witness herself may not
even have been present to participate therein,
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the very foundation of the identification
proceedings falls flat to the ground.”
39. In the case at hand, the prosecution claims that the arrest of the
appellant took place on 27.12.1983. Thereafter, he was produced
before the learned Metropolitan Magistrate in muffled face on
28.12.1983, and remanded to judicial custody till 05.01.1984. On
05.01.1984, the appellant was again produced before the learned
Metropolitan Magistrate (PW-22/ Sh. OP Gupta ) for the purpose of
TIP, but refused to participate in the same citing having been seen by
several persons.
40. To test the above reason for refusal to participate in the TIP, we
shall first examine the testimony of the witnesses.
41. PW-6/ Naginder Kumar identified the appellant as one of the
four who had come to the Bus Stop after them. He states that while
three of the accused boarded the bus from the front, the appellant
boarded it from the back. He states that while the deceased and the
others in his party sat in the front, he stood near with the conductor to
take the tickets. He states that the appellant exhorted from the back
„ Maro Salle Ko ‟. He states that the appellant also gave him fist blows
from his back side. He states that on 05.01.1984 he came to know that
the accused were to be produced in the court. He states that he came
himself to see the accused persons and found them to be the same
persons involved in that incident. He admits that relations of the
deceased had gone to the Police Station to see the accused persons on
their arrest. He states that though he did not go to the Police Station
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along with them, he was informed by the father of the deceased that
the accused would be produced in the court and he, on his own accord,
came to the court to see the accused persons along with PW-11/ Ashok.
He states that he reached the court at about 10 a.m.; the accused
persons came to court after about 30-35 minutes and thereafter, he
along with others left. He states that he did not meet any police
official in the court. Most importantly, he states that the accused were
not in muffled face. He states PW-7/ Alka informed him of the names
of the accused outside the Court on 05.01.1984.
42. From a reading of the statement of PW-6/ Naginder Kumar, we
are left with a doubt as to whether the accused persons, including the
appellant herein, were indeed shown to the witness prior to their TIP.
As noted above, PW-6/ Naginder Kumar has admitted that the family
members of the deceased had gone to the police station on hearing of
the arrest of the accused persons and that the accused persons had
been produced in court with unmuffled face.
43. As far as PW-7/ Alka is concerned, it is pertinent to highlight
that she admittedly did not see the appellant at the time of the incident,
as he is stated to have participated in the incident from behind in the
bus, while the said witness was sitting in the front. In addition, in her
testimony she has stated that she along with PW-6/ Naginder Kumar
and PW-11/ Ashok had gone to the Court on 28.12.1983, when the
accused-Shyam Lal was produced and that he was not in muffled face
at that time. Admittedly, three accused persons, including the
appellant herein, had been produced together before the learned
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Metropolitan Magistrate for taking a date for their TIP and for their
remand to Judicial Custody. Therefore, though the order dated
28.12.1983 (Mark X1) records that the accused persons had been
produced in muffled face, there is a doubt created if they were in
muffled face before being produced before court or thereafter before
being sent to Judicial Custody.
44. Even PW-11/ Ashok, in his testimony, has stated that he
identified the accused persons in the Court compound when they had
come to the Court around a month after the incident.
45. The testimony of the above witnesses, therefore, cast serious
doubts on whether the accused persons were seen by several persons,
including the witnesses, on or before 28.12.1983 or at anytime before
they were produced for their TIP proceedings.
46. Turning to the proceedings of the day when the TIP was
scheduled to be conducted, we find that it has been recorded in the
order sheet dated 05.01.1984, exhibited as Ex.PW-22/B, Ex.PW-22/C
and Ex.PW-22/D, that “ All the four accused persons are present in
J.C. in open face ”. Furthermore, even PW-22/ Sh. OP Gupta , the
learned Metropolitan Magistrate in charge of the TIP, in his testimony
has stated that “ I cannot say if accused were brought directly from
judicial custody or were detained outside the court room ”.
47. Given the circumstances as discussed hereinabove, we find that
the authenticity of the TIP proceedings is under a serious cloud of
doubt . Resultantly, the refusal of the appellant to participate in the TIP
cannot invite an adverse inference against him . Hence, despite the fact
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that PW-6 /Naginder Kumar , PW-7/ Alka and PW-11/ Ashok identified
the appellant in dock identification, in accordance with the judgment
of the Supreme Court in Gireesan Nair (supra) and for the reasons as
recorded hereinabove, we do not deem it fit to place reliance on the
same.
Contradictions in the testimony of the alleged eye-witnesses
48. While there is no cavil that even the testimony of a single eye-
witness is enough to establish the identity of an accused, and minor
contradictions in the statements of the witnesses, either with their
previous statements or inter-se each other, are not sufficient to cast a
doubt on the case of the prosecution, at the same time, such testimony
must be wholly reliable, truthful and trustworthy.
49. The testimonies of the eye-witnesses in the present case are not
of stellar quality and their conduct in the aftermath of the incident is
questionable.
50. PW-6 /Naginder Kumar in his testimony has stated that the
deceased was his friend but in the same breath has also mentioned that
after the incident took place, he went home and slept. His statement
was recorded by the police after two days, though he states that he
also went to the hospital to check on the deceased on the day of the
incident and even on the next day when the deceased unfortunately
passed away. Even when he went to the hospital, despite seeing PW-
5/ Usha and PW-7/ Alka there, he did not approach them or the police
officials standing with them. He did not enquire with PW-5/ Usha
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about her injury. It is rather after the death of the deceased that his
statement was recorded by the police on 03.12.1983.
51. Similar is the case in as far as PW-11/ Ashok is concerned. He
mentioned that the deceased was his childhood friend but did not take
him to the hospital. He stated that he visited the hospital on the night
of the incident and saw police officials present there. His statement,
however, was recorded only on 03.12.1983.
52. This leaves us with PW-5/ Usha and PW-7/ Alka .
53. As far as PW-5/ Usha is concerned, though there are
contradictions pointed out by the learned counsel for the appellant in
her statement, as far as the appellant is concerned, she would not have
seen the appellant as he was allegedly standing at the back of the bus.
She claims to have only heard the whistling and the exhortation. This
is not sufficient to conclusively prove that it was the appellant who
had done these acts.
54. Similar is the case as far as PW-7/ Alka is concerned, though
contradictions have been pointed out in her testimony, she has herself
in her testimony stated that she did not see the gentleman who is
alleged to have exhorted from the back of the bus.
Section 34 of the IPC
55. Be that as it may, we now turn to the role attributed to the
appellant by the prosecution.
56. The appellant has been acquitted of the charge under Section
307 read with Section 34 of the IPC. Furthermore, the allegations of
fist blows as levelled by PW-6/ Naginder Kumar in his testimony
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against the appellant, have not even formed part of the charge against
the appellant. Similar is the case with the allegations concerning the
beating up of PW-5/ Usha and PW-7/ Alka after the stabbing took
place. Hence, admittedly, no overt act involving use of any weapon
has been assigned to the appellant, and his roll has been limited to an
alleged exhortation of the words „Maro Sale Ko‟ from the back of the
bus. It is on this basis that he has been held guilty of the offence
punishable under Section 302 read with Section 34 of the IPC for the
alleged stabbing of the deceased by accused-Balvinder.
57. The Supreme Court in Jasdeep Singh v. State of Punjab ,
(2022) 2 SCC 545, describing the elements required to prove common
intention under Section 34 of the IPC, opined as under:
“Section 34 IPC
xxx
20. 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. When
a part of evidence produced by the prosecution
to bring the accused within the fold of Section
34 IPC is disbelieved, the remaining part will
have to be examined with adequate care and
caution, as we are dealing with a case of
vicarious liability fastened on the accused by
treating him on a par with the one who
actually committed the offence.
21. What is required is the proof of common
intention. Thus, there may be an offence
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without common intention, in which case
Section 34 IPC does not get attracted.
22. It is a team effort akin to a game of
football involving several positions manned by
many, such as defender, mid-fielder, striker,
and a keeper. A striker may hit the target,
while a keeper may stop an attack. The
consequence of the match, either a win or a
loss, is borne by all the players, though they
may have their distinct roles. A goal scored or
saved may be the final act, but the result is
what matters. As against the specific
individuals who had impacted more, the result
is shared between the players. The same logic
is the foundation of Section 34 IPC which
creates shared liability on those who shared
the common intention to commit the crime.
23. The intendment of Section 34 IPC is to
remove the difficulties in distinguishing the
acts of individual members of a party, acting
in furtherance of a common intention. There
has to be a simultaneous conscious mind of the
persons participating in the criminal action of
bringing about a particular result. A common
intention qua its existence is a question of fact
and also requires an act “in furtherance of the
said intention”. One need not search for a
concrete evidence, as it is for the court to
come to a conclusion on a cumulative
assessment. It is only a rule of evidence and
thus does not create any substantive offence.
24. Normally, in an offence committed
physically, the presence of an accused charged
under Section 34 IPC is required, especially in
a case where the act attributed to the accused
is one of instigation/exhortation. However,
there are exceptions, in particular, when an
offence consists of diverse acts done at
different times and places. Therefore, it has to
be seen on a case-to-case basis.
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25. The word “furtherance” indicates the
existence of aid or assistance in producing an
effect in future. Thus, it has to be construed as
an advancement or promotion.
26. There may be cases where all acts, in
general, would not come under the purview of
Section 34 IPC, but only those done in
furtherance of the common intention having
adequate connectivity. When we speak of
intention it has to be one of criminality with
adequacy of knowledge of any existing fact
necessary for the proposed offence. Such an
intention is meant to assist, encourage,
promote and facilitate the commission of a
crime with the requisite knowledge as
aforesaid.
27. 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. There may also be cases
where a person despite being an active
participant in forming a common intention to
commit a crime, may actually withdraw from it
later. Of course, this is also one of the facts for
the consideration of the court. Further, the
fact that all accused charged with an offence
read with Section 34 IPC are present at the
commission of the crime, without dissuading
themselves or others might well be a relevant
circumstance, provided a prior common
intention is duly proved. Once again, this is an
aspect which is required to be looked into by
the court on the evidence placed before it. It
may not be required on the part of the defence
to specifically raise such a plea in a case
where adequate evidence is available before
the court.”
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58. In Sunil v. State of NCT of Delhi , 2023 INSC 840, the
Supreme Court further held as under:
“28. In Balu alias Bala Subramaniam , this
Court held:
“11. To invoke Section 34 IPC, it must
be established that the criminal act was
done by more than one person in
furtherance of common intention of all.
It must, therefore, 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.
The essence of liability under Section 34
IPC is simultaneous conscious mind of
persons participating in the criminal
action to bring about a particular result.
Minds regarding the sharing of common
intention gets satisfied when an overt
act is established qua each of the
accused. Common intention implies
pre-arranged plan and acting in
concert pursuant to the pre-arranged
plan. Common intention is an intention
to commit the crime actually committed
and each accused person can be
convicted of that crime, only if he has
participated in that common
intention .”
(Emphasis supplied)
After observing as above, in paragraph
15, it was observed:
“15. Under Section 34 IPC, a pre-
concert in the sense of a distinct
previous plan is not necessary to be
proved. The common intention to bring
about a particular result may well
develop on the spot as between a
number of persons, with reference to the
facts of the case and circumstances of
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the situation. The question whether
there was any common intention or not
depends upon the inference to be
drawn from the proven facts and
circumstances of each case. The
totality of the circumstances must be
taken into consideration in arriving at
the con-clusion whether the accused
had a common intention to commit an
offence with which they could be
convicted .”
(Emphasis Supplied)
29. What is clear from the decisions noticed
above is, that to fasten liability with the aid of
Section 34 of the I.P.C. what must necessarily
be proved is a common intention to commit the
crime actually committed and each accused
person can be convicted of that crime, only if it
is in furtherance of common intention of all.
Common intention pre-supposes a prior
concert, though pre-concert in the sense of a
distinct previous plan is not necessary as
common intention to bring about a particular
result may develop on the spot. The question
whether there was any common intention or
not depends upon the inference to be drawn
from the proven facts and circumstances of
each case. The totality of the circumstances
must be taken into consideration in arriving at
the conclusion whether the accused had a
common intention to commit an offence with
which they could be convicted.”
59. In Constable 907 Surendra Singh & Anr. v. State of
Uttarakhand , 2025 INSC 114, the Supreme Court held as under:
“18. By now it is a settled principle of law that
for convicting the accused with the aid of
Section 34 of the IPC the prosecution must
establish prior meetings of minds. It must be
established that all the accused had
preplanned and shared a common intention to
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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. Reliance in support of the
aforesaid proposition could be placed on the
following judgments of this Court in the cases
of:
(i) Ezajhussain Sabdarhussain and another v.
State of Gujarat;
(ii) Jasdeep Singh alias Jassu v. State of
Punjab;
(iii) Gadadhar Chandra v. State of West
Bengal (supra); and
(iv) Madhusudan and others v. State of
Madhya Pradesh.”
60. As far as exhortation is concerned, the Supreme Court in Jainul
Haque v. State of Bihar , (1974) 3 SCC 543, opined that exhortation,
in the very nature of things, is a weak piece of evidence. It was held as
under:
“9. It would appear from the above that there
is a clear discrepancy between the evidence of
the witnesses given at the trial and the version
given in the first information report regarding
the part played by the appellant. The part
attributed to the appellant according to the
first information report is that he had exhorted
the other accused to assault Leyaquat, while
according to the evidence adduced at the trial
the appellant actually joined in the assault on
Leyaquat. The High Court did not accept the
prosecution evidence on the point that the
appellant had joined in the assault on
Leyaquat. All the same, the High Court
convicted the appellant because it was of the
view that the appellant had exhorted the other
accused to assault Leyaquat. In the absence of
any substantive and cogent evidence adduced
at the trial that the appellant had exhorted the
other accused to assault Leyaquat, the High
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Court, in our opinion, should not have
convicted the appellant for the offence under
Section 323 read with Section 114 of the Penal
Code, 1860. The High Court has found the
evidence of the eyewitnesses to be
unsatisfactory. It has also found that the
eyewitness were prone to exaggerate things
and to involve as many accused as possible. In
the circumstances it was, in our opinion, not
safe to base the conviction of the appellant on
the aforesaid evidence. The evidence of
exhortation is, in the very nature of things, a
weak piece of evidence. There is quite often a
tendency to implicate some person, in
addition to the actual assailant, by attributing
to that person an exhortation to the assailant
to assault the victim. Unless the evidence in
this respect be clear, cogent and reliable, no
conviction for abetment can be recorded
against the person alleged to have exhorted
the actual assailant. The evidence adduced at
the trial in respect of the part alleged to have
been played by the appellant is contradictory
and far from convincing. We would,
therefore, accept the appeal, set aside the
conviction of the appellant and acquit him.”
(emphasis supplied)
61. In Matadin & Anr. v State of Maharashtra , (1998) 7 SCC 216,
the Supreme Court held that the use of the words „ Maro Sale Ko ‟
cannot by themselves imply the intention to kill. It was held as under:
“11. The courts below have not found that the
language which Matadin used exhorting his
fellows was used in such a tone as to exhort
them to kill Ashok or to cause grievous hurt to
him by using dangerous weapons or means.
When the words “maro sale ko” are used, it
could mean “to beat” or even “to kill” a
person. Though the witnesses have stated that
these words were used by Matadin in an
abusive way, but from that it could not be
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said that he exhorted his fellows to kill
Ashok . We, therefore, set aside the conviction
and sentence of Matadin under Section 302
read with Section 34 IPC and instead convict
him under Sections 324/110 IPC. It was stated
before us that he has already undergone
rigorous imprisonment for a period of one
year and four months. We will sentence him to
suffer rigorous imprisonment for the period
already undergone by him and to fine.”
(emphasis supplied)
62. A reading of the above would show that 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, 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.
63. As per the case of the prosecution, three accused persons -
Charanjit, Balvinder and Shyam Lal were standing in the front of the
bus, while the appellant was standing at the back of the bus. The three
accused in the front of the bus were pulled up by the deceased and
PW-11 /Ashok for teasing PW-5/ Usha and PW-7/ Alka. It is then that
accused-Balvinder took out a knife and attacked the deceased and
PW-5/ Usha, whereas accused-Charanjit took out another knife and
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attacked PW-11/ Ashok . The role attributed to the appellant is that he
exhorted from the back of the bus „ Maro Sale Ko ‟.
64. Admittedly, there was no prior enmity between the alleged
assailants and the eye-witnesses as also the deceased. It has also not
been proved from the record that the appellant knew that his alleged
co-assailants were carrying knives. Added to this are factors such as
discrepancies between the testimonies of the eye-witnesses as to
whether the alleged exhortation took place before or after accused-
Balvinder is said to have stabbed the deceased. While PW-5/ Usha ,
PW-6/ Naginder Kumar and PW-7/ Alka stated that the exhortation was
heard prior to accused-Balvinder attacking the deceased, PW-
11/ Ashok does not say so. PW-5/ Usha has further stated that she did
not tell the police that the exhortation had come from the back side of
the bus. PW-6/ Naginder Kumar has mentioned that he did not see the
accused persons armed with knives when they were waiting at the bus
stop or when they were talking standing behind the bus driver‟s seat.
65. Furthermore, although it is the case of the prosecution that the
appellant entered the bus from the back side, the bus conductor PW-
13/ Siripal Singh , who was also at the back side of the bus, near PW-
6 /Naginder Kumar, does not support the case of the prosecution in as
much as he does not state that the appellant entered the bus. He also
does not state that he heard any exhortation or witnessed the appellant
attacking anyone.
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66. Additionally, PW-7/ Alka has stated that she could not see PW-
6/ Naginder Kumar as he was at the back of the bus, however, she has
interestingly been able to identify the appellant as one-Raju.
67. As noted above, we find that the use of the words „ Maro Sale
Ko ‟ by themselves also does not imply the intention to kill; they can
also be attributed to the intention to hurt. Furthermore, as it is the
admitted case of the prosecution that both PW-11/ Ashok and the
deceased had reprimanded the assailants standing in front of the bus,
the exhortation of „ Maro Sale Ko ‟ could have been made for just
beating the deceased. The entire incident has taken place in a short
span of time. Interestingly, even the learned Trial Court has acquitted
the appellant for the charge against him under Section 307 read with
Section 34 of the IPC pertaining to alleged stabbing of PW-11/ Ashok .
68. We, accordingly, find that the prosecution has not been able to
show that the appellant was sharing a common intention with accused-
Balvinder who allegedly stabbed the deceased.
CONCLUSION
69. Basis the above, we find that the prosecution had been unable to
prove its case against the appellant beyond reasonable doubt. The
appellant is entitled to be accorded the benefit of doubt. The learned
Trial Court has erred in convicting the appellant.
70. The impugned orders dated 10.08.2004 and 19.08.2004 are,
therefore, set aside.
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71. The appellant is acquitted of the Charge against him. His
personal bond and sureties are also discharged.
72. The appeal is allowed in the above terms.
73. A copy of this judgment be sent to the Jail Superintendent as
also the learned Trial Court for purposes of record.
NAVIN CHAWLA, J.
RAVINDER DUDEJ A, J.
JUNE 18, 2026/ ik
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