Exhortation Without Prior Concert or Knowledge of Weapons Negates Common Intention Under Section 34 IPC

On 01.12.1983, a victim named Vinod was fatally stabbed on a DTC bus (route 431) after he and his companions (PWs 5, 6, 7, and 11) protested against three men misbehaving with the women in their group.

The prosecution alleged that while three accused (Balvinder, Charanjit, and Shyam Lal) were at the front of the bus, the Appellant (Mukesh Kumar) entered from the rear and exhorted them by shouting "Maro Sale Ko".

The Appellant was arrested on 27.12.1983 following a tip-off and subsequently refused to participate in a Test Identification Parade (TIP), claiming he had already been shown to the witnesses.

The Trial Court convicted him under Section 302 read with Section 34 of the IPC, sentencing him to life imprisonment.

The Appellant challenged the conviction, citing material contradictions in witness testimonies and a flawed identification process.

1. Whether the Appellant’s refusal to participate in the Test Identification Parade (TIP) warranted an adverse inference against him.

2. Whether the dock identification of the Appellant by the eye-witnesses was reliable despite allegations of them seeing the accused prior to the TIP.

3. Whether the alleged act of exhortation (“Maro Sale Ko”) and the Appellant's presence were sufficient to establish "common intention" under Section 34 IPC for the offence of murder.

Section 34 of the IPC, which requires establishing a "common intention" through a pre-arranged plan or a simultaneous conscious mind to bring about a particular criminal result.

The court relied on Gireesan Nair v. State of Kerala and Raj Kumar @ Bheema v. State of NCT of Delhi, establishing that if an accused is shown to witnesses prior to a TIP, both the TIP and subsequent dock identification are inadmissible or fundamentally flawed.

The court applied the principle from Jainul Haque v. State of Bihar, noting that "exhortation" is a weak piece of evidence and requires clear, cogent, and reliable proof.

The court cited Matadin v. State of Maharashtra, which held that the words "Maro Sale Ko" do not necessarily imply an intention to kill but may signify an intent to beat.

The court found the identification process highly suspect, observing that witnesses (PW-6 and PW-11) admittedly saw the accused in court with "unmuffled faces" prior to the TIP date, and the order sheets on the day of the TIP recorded the accused were in "open face".

Regarding common intention, the court noted there was no prior enmity and no evidence that the Appellant knew his co-accused carried knives.

The court reasoned that in a spontaneous scuffle arising from misbehavior, the vague exhortation "Maro Sale Ko" could at most indicate an intent to cause hurt, not murder, especially since the Appellant was acquitted of Section 307/34 charges involving other victims in the same incident.

The court concluded that the prosecution failed to prove either the Appellant's identity beyond doubt or the existence of a common intention to commit murder.

The Court set aside the Judgment dated 10.08.2004 and the Sentencing Order dated 19.08.2004, acquitting the Appellant of all charges and discharging his bonds.