# Vijai @ Babban v. State of U.P

- **Citation:** (2025) 8 ILRA 957
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-08-08
- **Case number:** Criminal Appeal No. 2977 of 1984
- **Bench:** Saumitra Dayal Singh, Madan Pal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijai-babban-v-state-of-u-p-53835
- **Pages:** 15

## Headnote

Section 302 read with Section 34 IPC could
be sustained when the appellant was assigned
only the role of exhortation, the principal
assailant having inflicted the fatal knife injuries,
and whether the prosecution proved common
intention beyond reasonable doubt in absence
of premeditation or any overt/covert act
attributable to the appellant.

Headnotes
Indian Penal Code, 1860 - ss. 302/34 -
Murder
-
Common
intention
-
Exhortation
-
Evidentiary
value
-
Premeditation - Participation - Weak
evidence - Benefit of doubt - Acquittal.

Held:
To attract liability under Section 34 IPC, the
prosecution
must
establish
(i)
common
intention and (ii) participation of the
accused in the commission of the offence,
whether by overt or covert act or illegal
omission. Mere presence at the spot or sharing
a
mental
state,
without
participation,
is
insufficient. Common intention, being a state of
mind,
must
be
inferred
from
proved
circumstances and conduct. [Paras 19-20, 2832]

Evidence of exhortation is, by its nature, a
weak piece of evidence. Courts must be
cautious, as there is a frequent tendency to
implicate an additional person by attributing
exhortation. Unless such evidence is clear,
cogent
and
reliable,
and
supported
by
surrounding circumstances showing participation
or facilitation, conviction cannot be sustained.
[Paras 26, 31]

In the present case, the appellant was
attributed only a role of exhortation ("maro
saale ko"). The FIR did not attribute to him
any active role such as wielding a knife or
threatening witnesses; the alleged acts deposed
at trial constituted material improvements.
There was no proof of prior meeting of minds or
premeditation; the encounter between the
parties appeared chance, preceded by a verbal
altercation. [Paras 21-23]

Although the appellant's presence at the spot
was proved, the prosecution failed to establish
958 INDIAN LAW REPORTS ALLAHABAD SERIES
that he shared a common intention with the
principal offender to commit murder. Notably,
despite the allegation that he too carried a
knife, he did not assault the deceased,
which militates against the inference of common
intention. [Paras 23-24]

On the totality of circumstances, the prosecution
failed to prove beyond reasonable doubt that
the appellant participated in the offence in
furtherance of a common intention. Conviction
under Section 302/34 IPC could not be
sustained. Appeal allowed; appellant acquitted.
[Paras 38-39]

Appeal allowed. (E-14)

Case Law Cited
Pandurang v. State of Hyderabad, 1955
(1) SCR 1083 - relied on; Jainul Haque v.
State of Bihar, AIR 1974 SC 1651 -
applied (exhortation as weak evidence);
Surendra Chauhan v. State of M.P., (2000)
4 SCC 110 - relied on; Suresh v. State of
U.P., (2001) 3 SCC 673 - followed;
Matadin v. State of Maharashtra, (1998) 7
SCC 216 - applied; State of Orissa v.
Arjun Das Aggarwal, (1999) 8 SCC 154 -
followed; Parshuram Singh v. State of
Bihar, (2002) 8 SCC 16 - relied on;
Vaijayanti v. State of Maharashtra, (2005)
13 SCC 134 - referred; State of U.P. v.
Farid
Khan,
(2005)
9
SCC
103
-
distinguished.

List of Acts / Statutes
Code of Criminal Procedure, 1973; Indian Penal
Code, 1860; Indian Evidence Act, 1872.

List of Keywords
Murder; Common intention; Section 34 IPC;
Exhortation; Weak evidence; Premeditation;
Participation;
Material
improvement;
Mere
presence; Benefit of doubt; Acquittal.

Case Arising From
Judgment and order dated 20.10.1984 passed
by the Ist Additional Sessions Judge, Jhansi in
Sessions Trial No. 35 of 1984 (State v.
Narendra Kumar & another), arising out of Case
Crime No. 510 of 1983, Police Station
Nawabad, District Jhansi.

Appearance for Parties
For the Appellants: Shri Rajiv Lochan Shukla,
learned Amicus Curiae, ably assisted by Shri
Shashank Pandey
For the State: Shri L.D. Rajbhar and Mr. Murtaza
Ali, learned AGAs for the State

## Text

_Characters 0–39,918 of 50,013. This is a partial read: ask again with offset=39918 for what follows._

8 All. Vijai @ Babban Vs. State of U.P.
957
this court is of the view that the prosecution
has failed to prove its case beyond doubt
and in the facts and circumstances of the
case the appellant is entitled for benefit of
doubt, but the learned trial court failed to
consider
it,
therefore,
the
impugned
judgment and order is not sustainable in the
eyes of law and liable to be set-aside and
the appellant is liable to be acquitted giving
the benefit of doubt.

27.
The
appeal
is,
accordingly,
allowed. The impugned judgment and
order dated dated 27.1.2000 passed in
Session Trial No.432 of 1994; State versus
Rajendra Yadav by the Ist Additional
Sessions Judge, Unnao is hereby set aside.
The appellant is acquitted giving benefit of
doubt.

28. Let a copy of this judgment as well
as the lower court record be transmitted to
the concerned Trial Court forthwith.
----------
(2025) 8 ILRA 957
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.08.2025

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.
THE HON'BLE MADAN PAL SINGH, J.

Criminal Appeal No. 2977 of 1984

Vijai @ Babban ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
G.P. Mathur

Counsel for the Respondent:
A.G.A.

Issue for Consideration
Whether the conviction of the appellant under
Section 302 read with Section 34 IPC could
be sustained when the appellant was assigned
only the role of exhortation, the principal
assailant having inflicted the fatal knife injuries,
and whether the prosecution proved common
intention beyond reasonable doubt in absence
of premeditation or any overt/covert act
attributable to the appellant.

Headnotes
Indian Penal Code, 1860 - ss. 302/34 -
Murder
-
Common
intention
-
Exhortation
-
Evidentiary
value
-
Premeditation - Participation - Weak
evidence - Benefit of doubt - Acquittal.

Held:
To attract liability under Section 34 IPC, the
prosecution
must
establish
(i)
common
intention and (ii) participation of the
accused in the commission of the offence,
whether by overt or covert act or illegal
omission. Mere presence at the spot or sharing
a
mental
state,
without
participation,
is
insufficient. Common intention, being a state of
mind,
must
be
inferred
from
proved
circumstances and conduct. [Paras 19-20, 2832]

Evidence of exhortation is, by its nature, a
weak piece of evidence. Courts must be
cautious, as there is a frequent tendency to
implicate an additional person by attributing
exhortation. Unless such evidence is clear,
cogent
and
reliable,
and
supported
by
surrounding circumstances showing participation
or facilitation, conviction cannot be sustained.
[Paras 26, 31]

In the present case, the appellant was
attributed only a role of exhortation ("maro
saale ko"). The FIR did not attribute to him
any active role such as wielding a knife or
threatening witnesses; the alleged acts deposed
at trial constituted material improvements.
There was no proof of prior meeting of minds or
premeditation; the encounter between the
parties appeared chance, preceded by a verbal
altercation. [Paras 21-23]

Although the appellant's presence at the spot
was proved, the prosecution failed to establish
958 INDIAN LAW REPORTS ALLAHABAD SERIES
that he shared a common intention with the
principal offender to commit murder. Notably,
despite the allegation that he too carried a
knife, he did not assault the deceased,
which militates against the inference of common
intention. [Paras 23-24]

On the totality of circumstances, the prosecution
failed to prove beyond reasonable doubt that
the appellant participated in the offence in
furtherance of a common intention. Conviction
under Section 302/34 IPC could not be
sustained. Appeal allowed; appellant acquitted.
[Paras 38-39]

Appeal allowed. (E-14)

Case Law Cited
Pandurang v. State of Hyderabad, 1955
(1) SCR 1083 - relied on; Jainul Haque v.
State of Bihar, AIR 1974 SC 1651 -
applied (exhortation as weak evidence);
Surendra Chauhan v. State of M.P., (2000)
4 SCC 110 - relied on; Suresh v. State of
U.P., (2001) 3 SCC 673 - followed;
Matadin v. State of Maharashtra, (1998) 7
SCC 216 - applied; State of Orissa v.
Arjun Das Aggarwal, (1999) 8 SCC 154 -
followed; Parshuram Singh v. State of
Bihar, (2002) 8 SCC 16 - relied on;
Vaijayanti v. State of Maharashtra, (2005)
13 SCC 134 - referred; State of U.P. v.
Farid
Khan,
(2005)
9
SCC
103
-
distinguished.

List of Acts / Statutes
Code of Criminal Procedure, 1973; Indian Penal
Code, 1860; Indian Evidence Act, 1872.

List of Keywords
Murder; Common intention; Section 34 IPC;
Exhortation; Weak evidence; Premeditation;
Participation;
Material
improvement;
Mere
presence; Benefit of doubt; Acquittal.

Case Arising From
Judgment and order dated 20.10.1984 passed
by the Ist Additional Sessions Judge, Jhansi in
Sessions Trial No. 35 of 1984 (State v.
Narendra Kumar & another), arising out of Case
Crime No. 510 of 1983, Police Station
Nawabad, District Jhansi.

Appearance for Parties
For the Appellants: Shri Rajiv Lochan Shukla,
learned Amicus Curiae, ably assisted by Shri
Shashank Pandey
For the State: Shri L.D. Rajbhar and Mr. Murtaza
Ali, learned AGAs for the State

(Delivered by Hon'ble Madan Pal Singh, J.)

1. The instant criminal appeal is
directed against the judgment and order
dated 20.10.1984 passed by Ist Additional
Sessions Judge, Jhansi, in Sessions Trial
No. 35 of 1984 (State Vs. Narendra Kumar
& another), arising out of Case Crime No.
510 of 1983, under Sections 302/34 IPC,
Police Station -Nawabad, District - Jhansi,
whereby the appellant has been convicted
under Section 302/34 IPC and sentenced to
undergo life imprisonment.

2. Facts giving rise to the present
appeal may be summarized as under:-

(i). The prosecution case in brief
is that on the basis of Written Report dated
17.12.1983, of the informant Bahadur Shah
(P.W.-1), resident of Kapoor Tekari, Police
Station Nawabad, District Jhansi, an FIR
was
lodged
stating
therein
that
on
17.12.1983 at about 7.45 PM, he, his
brother Bashir Shah and one Mahendra,
resident of Narmal School, Kachahary
Chauraha were returning to their home via
Khushipura. As soon as they reached in
front of the house of Khem Chand, they
met Narendra Kori son of Mangali and
Vijai @ Babban son of Sher Singh, who
were coming from Kapoor Tekari. At the
same time, Narendra started abusing his
brother Bashir Shah and said "Who are you
to come between me and Kanti, you are
constantly trying to intrude in this matter. I
have tried to convince you many times in
this matter, yet, you continued". At this, his
brother Bashir said that you are making
8 All. Vijai @ Babban Vs. State of U.P.
959
false allegation against me without any
basis and don't try to bully me. Upon
which, Vijay responded by saying "Maro
Sale Ko". At that moment Narendra drew a
knife and gave three-four knife blows to his
brother (since deceased), due to which, he
became injured and he fell down. The
incident was witnessed by Ali Hasan son of
Subrati, Manjoor Ahmad son of Ismail and
Hazarat son of Noor Shah, resident of
Kapoor Tekari and several others. There
was enough source of light at the place of
occurrence. After causing the incident,
Narendra and Vijai @ Babban fled from
the place of occurrence brandishing knife,
towards village Khushipura. The injured
was carried to the Medical College on a
two wheeler, where the Doctor declared
him dead. Narendra used to visit to the
house of Kanti daughter of Karanjoo with
bad intentions. Bashir Shah also used to
visit the house of Kanti and treated her as
his sister. On many occasions, Bashir Shah
warned Narendra not to visit the house of
Kanti. Due to this very reason, the accused
Narendra was having enmity with the
deceased and accordingly, killed him. The
Written Report was marked as Ex. Ka-1.

(ii). On the basis of teharir
submitted by the informant, Case Crime
No. 510 of 1983, under Sections 302 IPC,
Police Station Nawabad, District Jhansi,
was registered against the accused persons
and investigation ensued.

(iii).
During
the
course
of
investigation,
panchayatnama
was
conducted on 18.12.1983, which was
marked as Ex. Ka-13 and the body was sent
for autopsy.

(iv). The autopsy of the dead
body of Bashir Shah was conducted on
18.12.1983 at 12.30 PM at District
Hospital, Jhansi, by Dr. D. Saxena. It was
marked as Ex. Ka-8.

(v).
The
investigation
was
conducted and after preparing the site plan,
recorded the statement of witnesses and
after completing the other necessary
formalities, the Investigation Officer had
submitted the charge-sheet against the
accused persons on 25.12.1983 under
Section 302 IPC, and cognizance thereupon
was taken on 20.01.1984 by the Chief
Judicial
Magistrate
concerned
and
thereafter the case was committed to the
Court of Sessions on 20.01.1984 for trial.
The charge-sheet was marked as Ex. Ka20.

(vi). That on the basis of evidence
collected during investigation, vide order
dated 27.04.1984, charges were framed
against the appellants under Section 302/34
IPC. The appellants denied the charges and
claimed to be tried.

(vii). The prosecution to prove its
case had examined P.W.1-Bahadur Shah
(informant), P.W.2-Ali Hasan, P.W.3Mahendra, as witnesses of fact and P.W.4-
Yashpal Singh, P.W.5-Dr. D. Saxena and
P.W.6-Jaipal Singh as a formal witnesses.

(viii). The prosecution in support
of its case had also produced oral as well as
documentary evidence, which were marked
as follows:

(a) Written Report Ex. Ka-1, (b)
FIR Ex. Ka-2, (c) Postmortem Report Ex.
Ka-8, (d) Recovery memo of blood stained
Bushirt Ex. Ka-9, (e) Recovery memo of
blood stained soil and plain soil Ex. Ka-11
(f) Recovery memo of blood stained
Bushirt Ex. Ka-12 (g) Report of chemical
examiner Ex. Ka-22, (h) Panchayatnama
960 INDIAN LAW REPORTS ALLAHABAD SERIES
Ex. Ka-13 (g) Charge-sheet Ex. Ka-20 and
(h) Site Plan with index Ex. Ka-10.

3. After closing of the prosecution
evidence, the statements of the accused
persons were recorded under section 313 of
the Code of Criminal Procedure, in which,
appellant stated that police had implicated
him in several false cases in which he got
acquitted, due to this animosity, he has
falsely been implicated in the present case.

4. Heard Shri Rajiv Lochan Shukla,
learned Amicus Curiae, ably assisted by
Shri Shashank Pandey, learned counsel for
the appellant and Shri L.D. Rajbhar and
Mr. Murtaza Ali, learned AGAs for the
State.

5. Learned counsel for the appellant
mainly argued that the main allegation
of causing knife injury to the deceased
was against the co-accused Narendra
Kumar, against whom the appeal has
already been abated. The appellant-Vijai
@ Babban was assigned the role of
exhortation, only.

6. He next argued that prosecution has
failed to establish that the present appellant
had shared common intention with the
principal offender, which was essential to
prove to bring home the charge against the
present appellant, of committing the
murder of the deceased in furtherance of
common intention.

7. He further argued that the
presence of the appellant is also not
proved
beyond
reasonable
doubt,
inasmuch as, had the appellant been
there and had shared common intention
to commit the murder of deceased, no
reason appears why he would not have
assaulted the deceased, himself.

8. Lastly, he argued that mere
presence of appellant at the spot and
utterance of the word (MARO SALE KO)
can not reflect common intention. Such
type of words are commonly used even in a
trivial nature of altercation, which do not
necessary suggest an intention to kill the
person, rather these words may imply the
commission
of
simple
'marpeet',
particularly, when the prosecution has
failed to prove that both the accused
reached at the place of occurrence with
premeditation of mind.

9. On the other hand, learned A.G.A.
appearing for the State has argued that this
case revolves around the common intention
and sufficient evidence is available on
record
against
the
present
appellant
regarding exhortation upon which, the main
accused Narendra, who had preferred
Criminal Appeal No. 3113 of 1984 before
this Court and during the pendency of the
aforesaid Criminal Appeal, he died and
appeal filed by him already stands abated
vide order dated 08.03.2018.

10. He next argued that the common
intention may occur at the spot which had
clearly been shown by the overt act of the
present appellant. Hence he prayed to
dismiss the appeal preferred by the
appellant.

11. Before discussing the arguments
advanced on behalf of the parties, it is
necessary to have a glance on the evidence
recorded by the trial court.

12.
P.W.1-Bahadur
Shah,
the
informant in his examination-in-chief had
narrated the factum of incident and
supported the prosecution version. He
deposed that prior to about 7 months at
around 07:45 p.m. he along with his brother
8 All. Vijai @ Babban Vs. State of U.P.
961
Bashir Shah was going towards his house
from Kachahri Chauraha where Mahendra
met them and asked him to accompany
them for seeing lightening in Kasai Mandi.
The witness along with his brother Bashir
Shah and Mahendra proceeded towards
their house via Khushipura and on reaching
near the house of Khem Chandra in Kapoor
Tekari, accused Vijai @ Babban and
Narendra met them. Narendra said to his
brother Bashir that despite several warnings
given by him, he is constantly interfering
between him and Kanti, which was refuted
by Bashir, who objected and told him not
bully
him.
Thereupon,
co-accused
Narendra and Vijai @ Babban took out
knives and Narendra started inflicting knife
blows upon Bashir. On alarm being raised,
witnesses Ali Hasan, Manjoor and Hazarat
reached the spot. The witnesses could not
intervene as Vijai, while brandishing knife
said that if anyone will come to intervene
the matter, he will kill him. The deceased
Bashir fell down in an injured condition
and accused persons fled from the place of
occurrence. This witness and Mahendra
took Bashir Shah to Chakki of Haziji and
from there they took Bashir Shah to
Medical-College in a taxi, where the doctor
declared him dead. A written report (Ex.
Ka.1) was got written by Yusuf which is
Ex. Ka-1. He further stated that he along
with all the witnesses saw the incident in
road-side electric light.

13.
P.W.2-
Ali
Hasan
in
his
examination-in-chief has stated the factum of
incident and supported the prosecution
version and stated that he was returning after
electric fitting in the house of one Yakub
driver, on the way he met with Hazrat
conductor. As soon as they reached near the
house of Manzoor Ahmad, he saw that
Narendra and Vijay were arguing with
Bashir, saying why he was interfering in his
matter with Kanti. On this Bashir replied, he
had not interfered in anyone's matter but told
him not to bully him. At this Vijay said (AAJ
SALE KO JAAN SE MAAR DO). Upon this
Narendra drew out his knife at once and
started inflicting stab wounds to Bashir and
fled towards Khusipura.

14.
P.W.3-
Mahendra,
in
his
examination-in-chief narrated the factum of
incident and supported the prosecution
version almost in the same manner as stated
by other witnesses of fact and he further
stated that he met Bashir and Bahadur and
asked them to accompany him to see light on
the occasion of Barawafat. As soon as they
reached near village Kapoor Tekari, they saw
accused Narendra and Babban and at the
same time, Narendra asked Bashir why he
was interfering in the affairs between him and
Kanti. Bashir refuted and said that he is
making
false
allegations
against
him.
Thereupon Babban said "Sale ko Khatam kar
do". Thereafter, co-accused Narendra took
out his knife and gave 3-4 knife blows to
Bashir. He also stated that Babban threatened
the witnesses not to come forward otherwise
they would face dire consequences.

15. P.W.4- Yashpal Singh, in his
examination-in-chief
stated
that
on
17.12.1983, he was posted as a Head
Moharrir, P.S. Nawabad, District- Jhansi,
he wrote the chick F.I.R. Ex. Ka-2 on basis
of written report Ex. Ka.1, copy of entry in
G.D. regarding the same is Ex. Ka-3, copy
of the entry in the G.D. regarding
deposition of case property in Sadar
Malkhana is Ex. Ka-4, copy of the entry
regarding one envelope and one sealed
bundle in the G.D.

16. P.W.5- Dr. D. Saxena in his
examination-in-chief stated that he was
posted
as
Medical
Officer,
District
962 INDIAN LAW REPORTS ALLAHABAD SERIES
Hospital,
Jhansi
on
18.12.1983
and
performed the autopsy of the dead body of
the deceased Bashir Shah at 12:30 pm, who
was brought and identified by constables
Shri Shiv Charan Sharma and Shri Ram
Nagar. The deceased was of average built,
eyes half open, fluid coming out of nostrils,
rigor mortis well established in lower and
upper limbs, p.m. strains present on back of
trunk. In the postmortem, he noted the
following ante-mortem injuries:

1. Stab wound 2 cm x 1 cm x
cavity deep x oblique on the left side chest
upper part 3-1/2 cm below medial end of
left collarbone, 10 cm from left nipple at
10'o' clock position and just touching
midline. Margins regular clotted blood
present (on exposing sternum upper part
shows oblique cut of 2 cm size underneath
congestion and right lung cut upper part).

2. Incised wound 2 cm x 1 cm x 1
cm x oblique on the left side of chest 4-1/2
cm above left nipple at 10 'o' clock
position 9 cm from injury no.1. Margins
regular. Clotted blood.

3. Stab wound 2-1/2 cm x 1 cm x
cavity deep x oblique on left side back
upper part 4 cm below post. axillary fold
and 18 cm from midline. Margins regular.
Bleeding.

4. Stab wound 2 cm x 1 cm x
cavity deep on the left side of back upper
third part x oblique 8 cm medial to injury
no.3 and 8 cm from midline. Margins
regular. Bleeding.

As to the immediate cause of
death, it was recorded, "shock and
haemorrhage" as a result of ante-mortem
injuries". The said autopsy report is Ex. Ka8.

17.
P.W.
6-
Jaipal
Singh,
the
Investigating Officer was posted as S.H.O.
Nawabad, District - Jhansi, in December,
1983. An F.I.R. was lodged in his presence
at around 9:30 p.m. The investigation of the
case was taken over by him. He went to the
place of occurrence alongwith police force,
recorded the statements of Bahadur Shah
(first
informant-P.W.-1),
took
into
possession his blood-stained shirt, fard
regarding which was prepared and signed
by Head Constable- Bajrang Singh is Ex.
Ka-9, got the site-plan prepared by
dictating the same to Head Constable
Bajrang Singh, signed the same which Ex.
Ka-10, on record, took in possession the
blood stained and ordinary sample of soil,
sealed them separately, the fard regarding
which was prepared by Head Constable
Bajrang Singh on his dictation Ex. Ka-11,
recorded the statements of witnesses
Mahendra and others, took in possession
blood-stained shirt of witness Mahendra,
got it sealed and fard prepared by Head
Constable Bajrang Singh on the dictation of
this witness which is Ex. Ka-12, the inquest
report of the deceased was prepared by Sri
Chandrabali Shukla, SSI, who was posted
with him. He is well acquainted with his
hand-writing and signatures. This witness
proved the autopsy report Ex. Ka-13,
challan nash, Photonash, sample sealed,
letter to R.I., letter to C.M.O., letter
regarding clothes of deceased, which are
Exs. Kа-14 to Ka-19. Thereafter, on
21.12.1983, he recorded the statements of
the accused persons in District Jail and
further recorded the statements of other
formal witnesses, sent the blood-stained
clothes for chemical examination to Agra
and after completion of investigation,
submitted charge-sheet against accused
persons, which was got prepared by Head
Constable Bajrang Singh on dictation of the
witness which is Ex. Ka-20. This witness
8 All. Vijai @ Babban Vs. State of U.P.
963
also proved the blood stained and ordinary
sample of earth as Exs. Ka-9 and Ka-10
and blood-stained shirt of Bahadur Shah,
Mahendra as Exs. Ka-1 and Ka-2. In his
cross-examination he deposed that he did
not think it necessary to show the flour-mill
of Hazi Chimman Shah in the site-plan. He
did not find any blood on the place of
occurrence to the flour-mill of Chimman
Shah, and did not enquire about the motive
of the incident.

18. We have heard the arguments of
learned counsel for the parties and perused
the evidence available on record.

19. In the light of arguments advanced
on behalf of appellant very short question
before us is to see as to whether the present
appellant had shared common intention
with the principal offender to commit the
murder of the deceased and if both the
accused reached at place of occurrence
after prior meeting of their mind and
premeditation.

20. For the application of Section 34
I.P.C, in order to prove the common
intention among the offenders, it is
essential to establish that there must be
prior meeting of their mind and to commit
a crime in furtherance of common intention
of all.

21. So far as the premeditation of
appellant is concerned, we find that all the
witnesses of fact categorically deposed that
when they were returning from their work,
they met with the accused Narendra and
Vijay, who were coming from the other
side. None of the witnesses stated that the
accused were standing at the place of
occurrence and were waiting for the
deceased. Further, the witnesses of fact also
did not depose that as soon as they reached
near the accused, Narendra started dealt
knife blows to Bashir. A perusal of
examination-in-chief of all the witnesses
goes to show that before actual assault was
committed by the co-accused Narendra, hot
exchange of words had taken place
between Narendra and deceased involving
a woman who the deceased cared as his
sworn sister and who the co-accused used
to visit often indicates that there was no
premeditation of mind between the present
appellant and co-accused.

22. In so far as the deposition of
witnesses regarding active role of present
appellant
is
concerned,
upon
deeper
scrutiny of the testimony of the witnesses,
we find that in the written report submitted
by the informant who also claims himself
as an eye witness, has not mentioned any
active role of the present appellant except
the role of exhortation. Neither any role of
having caused knife blows assigned to him
nor any role of threatening the witnesses
has been assigned while brandishing a
knife. P.W.-1 has assigned the role of the
present appellant (in his deposition), which
is not mentioned in the written report
submitted by him. Although the F.I.R. is
not an encyclopedia, but such details must
find place in F.I.R. That deficiency goes to
the root of the case. That role assigned to
the present appellant was not a such of
nature that could be ignored by the
informant while submitting his written
report. Thus, giving the role of whipping
out his knife and threatening the witnesses
and other witnesses is not free from all
doubt. That deposition made in Court is not
corroborated from the FIR. It is a material
improvement made at the trial.

23. As to the presence of the present
appellant at the spot is concerned, we find
that presence of the appellant could not be
964 INDIAN LAW REPORTS ALLAHABAD SERIES
doubted in any manner as all the witnesses
of fact categorically stated that they had
seen the appellant along with main
offender. But mere presence of the
appellant at the spot is not sufficient to
establish
common
intention
of
the
appellant. Moreover, in view of the
testimony of P.W. -2, who deposed in his
cross-examination that Vijay @ Babban
used to say that he will marry to Kanti,
whereas Narendra had an illicit relationship
with Kanti. Therefore, it is not possible that
Vijay would have shared any common
intention with Narendra to kill Bashir,
simply based on the saying that 'the enemy
of an enemy is a friend.' On this premise
also, it does not appear reliable that the
Vijay, would have gone to commit the
murder of the deceased in furtherance of a
common intention shared with Narendra.

24. One another aspect, on which we are
reluctant to believe on the theory of
prosecution that the present appellant had a
common intention to commit the murder of
Bashir, is that the present appellant had not
assaulted the deceased, even though he was
also carrying a knife as alleged by the
prosecution
witnesses.
If
the
act
of
committing the murder of the deceased was
to be done solely by Narendra, it may not be
believed that the present appellant had shared
common intention with the co-accused.
Though in some circumstances, facilitation
by one accused to other, may be in
furtherance of common intention but in the
present case the role of facilitation which is
alleged to have been given to the present
appellant could not be proven free from
doubt. Thus, we are of view that the presence
of present appellant on spot is proved but we
are not inclined to accept that the present
appellant had shared any common intention
to commit the murder of the deceased, from
before the two parties met up, by chance.

25. Now the question before us is,
whether the act of exhortation of the
appellant Vijay @ Babban is leading to the
doing of a criminal act in furtherance of
common intention. To appreciate the issue,
it will be apt to refer the law laid down by
Hon'ble Supreme Court in this regard.

In Pandurang VS State Of
Hyderabad, 1955 1 SCR 1083, Hon'ble
Supreme Court in para 34 and 35 of its
judgment has held as under:

"34. In the present case, there is
no evidence of any prior meeting. We know
nothing of what they said or did before the
attack-not
even
immediately
before.
Pandurang is not even of the same caste as
the others. Bhilia. Tukia and Nilia are
Lambadas, Pandurang is a Hatkar and
Tukaram a Maratha. It is true prior concert
and arrangement can, and indeed often
must be determined from subsequent
conduct as; for example, by a systematic
plan of campaign unfolding itself during
the course of the action which could only
be referable to prior concert and prearrangement, or a running away together
in
a
body
or
a
meeting
together
subsequently. But, to quote the Privy
Council again,

"the
inference
of
common
intention should never be reached unless it
is a necessary inference deducible from the
circumstances of the case".

But to say this is no more than to
reproduce
the
ordinary
rule
about
circumstantial evidence, for there is no
special rule of evidence for this class of
case. At bottom, it is a question of fact in
every case and however similar the
circumstances, facts in one case cannot be
used as a precedent to determine the
8 All. Vijai @ Babban Vs. State of U.P.
965
conclusion on the facts in another. All that
is necessary is either to have direct proof of
prior concert, or proof of circumstances
which necessarily lead to that inference, or,
as we prefer to put it in the time-honoured
way, "the incriminating facts must be
incompatible with the innocence of the
accused and incapable of explanation on
any other reasonable hypothesis". (Sarkar s
Evidence, 8th edition, page 30).

35. The learned counsel for the
state relied on - Mamand v. Emperor , AIR
1946 PC 45 (C), because in that case the
accused all ran away and their Lordships
took that into consideration to establish a
common intention. But there was much
more than that. There was evidence of
enmity on the part of the accused who only
joined in the attack but had no hand in the
killing; and none on the part of the two who
did the actual murder. There was evidence
that all three lived together and that one
was a younger brother and the other a
tenant of the appellant in question. There
was evidence that they all ran away
together: not simply that they ran away at
the same moment of time when discovered,
but that they ran away together.

As we have said, each case must
rest on its own facts and the mere similarity
of the facts in one case cannot be used to
determine a conclusion of fact in another.
In the present case, we are of opinion that
the facts disclosed do not warrant an
inference
of
common
intention
in
Pandurang's case. Therefore, even if that
had been charged, no conviction could
have followed on that basis. Pandurang is
accordingly only liable for what he actually
did."

 (emphasis supplied)

26. In case of Jainul Haque vs State
Of Bihar, AIR 1974 SC1651, Hon'ble
Supreme Court in para 8 of its judgment
has held as under:

"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."

(emphasis supplied)

27. In Surendra Chauhan VS State
Of M. P. , (2000) 4 SCC 110, Hon'ble
Supreme Court in para 11 of its judgment
has held as under:

"11. Under Section 34 a person
must be physically present at the actual
commission of the crime for the purpose of
facilitating or promoting the offence, the
commission of which is the aim of the joint
criminal venture. Such presence of those
who in one way or the other facilitate the
execution of the common design is itself
tantamount to actual participation in the
criminal act. The essence of Section 34 is
simultaneous consensus of the minds of
persons participating in the criminal action
to bring about a particular result. Such
consensus can be developed at the spot and
thereby
intended
by
all
of
them.
Ramaswami Ayhangar & Ors. v. State of
Tamil Nadu2. The existence of common
intention can be inferred from the attending
circumstances of the case and the conduct
of the parties. No direct evidence of
common intention is necessary. For the
purpose of common intention even the
participation in the commission of the
966 INDIAN LAW REPORTS ALLAHABAD SERIES
offence need not be proved in all cases. The
common intention can develop even during
the course of an occurrence. Rajesh Govind
Jagesha v. State of Maharashtra3. To apply
Section 34 IPC 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
a 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 a common intention is absent,
Section 34 cannot be invoked. In every
case, it is not possible to have direct
evidence of a common intention. It has to
be
inferred
from
the
facts
and
circumstances of each case."

(emphasis supplied)

28. In Suresh and another vs State
Of U.P. (2001) 3 SCC 673, Hon'ble
Supreme Court in para 24 of its judgment
has held as under:

"24. Looking at the first postulate
pointed out above, the accused who is to be
fastened with liability on the strength of
Section 34, IPC should have done some act
which has nexus with the offence. Such act
need not be very substantial, it is enough
that the act is only for guarding the scene
for facilitating the crime. The act need not
necessarily be overt, even if it is only a
covert act it is enough, provided such a
covert act is proved to have been done by
the co-accused in furtherance of the
common intention. Even an omission can,
in certain circumstances, amount to an act.
This is the purport of Section 32, IPC. So
the act mentioned in Section 34, IPC need
not be an overt act, even an illegal
omission to do a certain act in a certain
situation can amount to an act, e. g. a coaccused, standing near the victim face to
face saw an armed assailant nearing the
victim from behind with a weapon to inflict
a blow. The co-accused, who could have
alerted the victim to move away to escape
from the onslaught deliberately refrained
from doing so with the idea that the blow
should fall on the victim. Such omission
can also be termed as an act in a given
situation. Hence an act, whether overt or
covert, is indispensable to be done by a coaccused to be fastened with the liability
under the section. But if no such act is done
by a person, even if he has common
intention
with
the
others
for
the
accomplishment of the crime, Section 34,
IPC cannot be invoked for convicting that
person. In other words, the accused who
only keeps the common intention in his
mind, but does not do any act at the scene,
cannot be convicted with the aid of Section
34, IPC. "

(emphasis supplied)

29. In general, principle of criminal
law is that the person who commits the
offence be held guilty. Yet, section 34 of
Indian Penal Code introduces joint liability.
The essence of joint liability is in existence
of a common intention connecting all the
accused to the doing of a criminal act, in
furtherance of such common intention.
Upon existence of common intention being
established, individual acts of t he principal
offenders, in the actual occurrence, looses
relevance. All participants who may act
with that common intention would become
equally liable for the offence committed.
Common intention essentially is a state of
mind. Therefore, it is very difficult to
procure direct evidence to prove its
existence. Hence, in majority of cases it has
8 All. Vijai @ Babban Vs. State of U.P.
967
to be inferred from the overt or covert act,
other relevant circumstances of the case
and conduct of the accused in the totality of
circumstances of the case. In this regard
gainfully, para 12 of the judgment of apex
court in the case of Ramesh Singh @
Photti VS State Of A. P. AIR 2004 (SC)
4545, is reads as under:

"12. To appreciate the arguments
advanced on behalf of the appellants it is
necessary to understand the object of
incorporating Section 34 in the Indian
Penal Code. As a general principle in a
case of criminal liability it is the primary
responsibility of the person who actually
commits the offence and only that person
who has committed the crime can be held
to guilty. By introducing Section 34 in the
penal code the Legislature laid down the
principle of joint liability in doing a
criminal act. The essence of that liability is
to be found in the existence of a common
intention connecting the accused leading to
the doing of a criminal act in furtherance
of such intention. Thus, if the act is the
result of a common intention then every
person who did the criminal act with that
common intention would be responsible for
the offence committed irrespective of the
share which he had in its perpetration.
Section 34 IPC embodies the principles of
joint liability in doing the criminal act
based on a common intention. Common
intention essentially being a state of mind it
is very difficult to procure direct evidence
to prove such intention. Therefore, in most
cases it has to be inferred from the act like,
the conduct of the accused or other
relevant circumstances of the case. The
inference can be gathered by the manner in
which the accused arrived at the scene,
mounted the attack, determination and
concert with which the attack was made,
from the nature of injury caused by one or
some of them. The contributory acts of the
persons who are not responsible for the
injury can further be inferred from the
subsequent conduct after the attack. In this
regard even an illegal omission on the part
of such accused can indicate the sharing of
common intention. In other words, the
totality of circumstances must be taken into
consideration in arriving at the conclusion
whether the accused had the common
intention to commit an offence of which
they could be convicted."

(emphasis supplied)

30. In Nagaraja Vs. State of
Karnataka (2008) 17 SCC 277, the
Supreme Court examined two factors
considered to be necessary ingredients of
Section 34 IPC. In that regard, it was
observed as below:

"17. We are not concerned herein
as to whether the said iron rod was the
weapon of assault. Having regard to the
quality of evidence that the prosecution had
led, in our opinion, it is difficult to come to
the conclusion that all the accused persons
had a common intention to commit the
murder of the deceased.

18. For invoking the provisions of
Section 34 IPC, at least two factors must be
established; (1) common intention, and (2)
participation of the accused in the
commission
of an
offence.
For
the
aforementioned purpose although no overt
act is required to be attributed to the
individual accused but then before a person
is convicted by applying the doctrine of
vicarious liability not only his participation
in the crime must be proved but presence of
common intention must be established. It is
true that for proving formation of common
intention, direct evidence may not be
968 INDIAN LAW REPORTS ALLAHABAD SERIES
available but then there cannot be any
doubt whatsoever that to attract the said
provision, prosecution is under a bounden
duty to prove that the participants had
shared a common intention. It is also well
settled that only the presence of the
accused by itself would not attract the
provisions of Section 34 IPC. Other factors
should also be taken into consideration for
arriving at the said conclusion. The
accused persons were not related to each
other; they did not have any family
connection; they have different vocations.
It has not been established that they held
any
common
animosity
towards
the
deceased."

(emphasis supplied)

31. From the law laid down in the
above referred cases it can be deduced that
evidence of exhortation is a weak piece of
evidence. There is quite often a tendency to
implicate some person, in addition to the
actual assailant by ascribing to that person
role of an exhortation to the assailant to
assault the deceased by alleging his
presence after accompanied with role of
exhortation. Unless the evidence in this
respect is clear, cogent and reliable,
conviction may not be recorded against the
person alleged to have exhorted the actual
assailant, unless attending circumstances
proven by the prosecution also establish
either a covert or overt act or omission as
may convince the Court as to existence of
common intention.

32. To invoke Section 34 IPC two
factors must be established : (i) common
intention and (ii) participation of the
accused in the commission of an offence.
To fasten the liability u/s 34 IPC
performance of an act or omission (whether
overt or covert), is indispensable. If no such
act or omission is done by a person, even if
he has common intention (in his mind) with
the others for the accomplishment of the
crime, Section 34, IPC cannot be invoked
to successfully convict that person. In other
words, the accused who only keeps the
common intention in his mind, but does not
commit any act or omission, cannot be
convicted with the aid of section 34, IPC.
To ascertain common intention, totality of
circumstances
must
be
taken
into
consideration in arriving at the conclusion
whether the accused had the such intention
to commit an offence of which he could be
convicted.

33. In Matadin etc. Vs. State of
Maharashtra (1998) 7 SCC 216, the
accused Matadin was similarly charged
with exhorting the main accused Ram
Singh with use of words "Maaro Saale
Ko". Thereupon the main accused Ram
Singh took out his knife and assaulted the
victim. In that context, it was observed as
below:

"9. However, the case of Matadin
would appear to stand on a different
footing. It was submitted that when he
exhorted his fellows by saying "maro sale
ko", he did not intend that the deceased
should be killed.