Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(All) 2870

HIGH COURT OF JUDICATURE AT ALLAHABAD
SAUMITRA DAYAL SINGH, MADAN PAL SINGH, JJ.
Vijai @ Babban - Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No. 2977 of 1984
Decided On : 08-08-2025

Advocates Appeared:
For the Appellant : G.P. Mathur
For the Respondent: A.G.A.

Common intention must be established alongside participation in a crime; mere exhortation is insufficient for murder conviction under Section 34 IPC.

Headnote:(A) Indian Penal Code, 1860 - Section 302, 34 - Criminal appeal against conviction for murder - Appellant convicted and sentenced to life imprisonment by Sessions Court. Key points discussed include the need for proof of common intention among co-accused and the inadequacy of mere exhortation to establish participation in murder. The court emphasized that without clear evidence connecting the appellant to the act of murder, particularly the absence of premeditation, conviction cannot be upheld. (Paras 20-29)

Facts of the case:
The appellant was implicated in a murder due to a prior enmity related to affections towards a woman. The allegations were based on witness accounts of a knife attack intertwined with verbal altercations that occurred prior to the incident. (Paras 1-12)

Findings of Court:
The court found that the evidence against the appellant mainly relied on exhortation, which is insufficient for murder conviction under Section 34, IPC. The lack of direct actions towards the victim on the part of the appellant suggested no common intention to murder. (Paras 34-38)

Issues: The main issues were whether the appellant shared common intention with the principal offender and if the exhortation alone constituted sufficient grounds for conviction of murder. (Paras 19, 20)

Ratio Decidendi: The evidence of exhortation is considered weak; for conviction under Section 34 IPC, both common intention and participation in the commission of the offence must be established. The mere presence or exhortative words do not suffice without clear evidence of shared intent to commit murder. (Paras 26-28)

Result: Appeal allowed; conviction set aside and appellant acquitted. (Paras 39)

Table of Content
1. conviction scenario and background of appeal. (Para 1 , 2)
2. detailed witness testimonies and evidence presented. (Para 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17)
3. legal arguments regarding common intention. (Para 18 , 19 , 20 , 21 , 22 , 23 , 24)
4. court's reasoning and application of previous case law. (Para 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38)
5. final decision and order of acquittal. (Para 39 , 40 , 41)

JUDGMENT :

(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 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