'Maro Sale Ko' Exhortation Alone is Weak Evidence, Insufficient to Prove Common Intention for Murder U/s 34 IPC: Allahabad High Court

‘Maro Sale Ko’ Exhortation Not Enough to Prove Common Intention for Murder, Says Allahabad High Court, Acquitting Man After 41 Years

Allahabad, India – In a significant ruling on the interpretation of "common intention" under criminal law, the Allahabad High Court has acquitted a man who spent decades under the shadow of a life sentence for murder. The Court held that mere exhortation, such as shouting "Maro Sale Ko" (Beat/Kill the scoundrel), without further corroborative evidence of a shared plan to kill, is insufficient to convict a person for murder under Section 302 read with Section 34 of the Indian Penal Code (IPC).

A Division Bench of Hon'ble Saumitra Dayal Singh, J. and Hon'ble Madan Pal Singh, J. set aside the 1984 conviction of the appellant, Vijai @ Babban, who was accused of instigating the main assailant in a murder that took place in 1983.

Case Background: A Dispute Over a Woman Ends in Death

The case dates back to December 17, 1983, when Bashir Shah was fatally stabbed by Narendra Kori following a verbal altercation. The dispute reportedly arose because Bashir Shah had warned Narendra against visiting a woman named Kanti, whom Bashir considered his sister.

The prosecution’s case was that the appellant, Vijai @ Babban, was present with Narendra at the time of the incident. When the argument escalated, Vijai allegedly shouted "Maro Sale Ko," after which Narendra drew a knife and stabbed Bashir multiple times.

The Ist Additional Sessions Judge, Jhansi, convicted both Narendra and Vijai under Section 302/34 IPC in 1984, sentencing them to life imprisonment. Narendra's appeal abated upon his death, but Vijai's appeal, filed in 1984, was finally decided after over four decades.

Arguments Before the High Court

• Appellant's Counsel (Amicus Curiae Shri Rajiv Lochan Shukla): The primary argument was that Vijai's role was limited to exhortation. It was contended that the prosecution failed to establish a "prior meeting of minds" or a shared intention to commit murder. The phrase "Maro Sale Ko" is often used in trivial altercations and does not necessarily imply an intent to kill. Furthermore, it was argued that if Vijai shared the intention to murder and was also carrying a knife (as alleged by witnesses in court), he would have likely participated in the assault, which he did not.

• State's Counsel (A.G.A.): The prosecution argued that common intention can develop on the spot and that Vijai’s exhortation was a clear overt act demonstrating his shared intent with the main accused, Narendra.

Court's Analysis: Scrutinizing the Doctrine of Common Intention

The High Court undertook a meticulous examination of the evidence and the legal principles governing Section 34 IPC. The judgment highlighted several key reasons for acquitting the appellant.

• Lack of Premeditation: The Court noted that the meeting between the accused and the victim's party was a chance encounter. The incident was preceded by a verbal spat, indicating that there was no premeditated plan to murder the deceased.

• Exhortation as Weak Evidence: Relying on a catena of Supreme Court judgments, including Jainul Haque vs State Of Bihar and Matadin vs. State of Maharashtra , the Bench reiterated that exhortation is inherently 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... 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.”

• Ambiguity of "Maro Sale Ko": The Court observed that such words are ambiguous and could mean "to beat" or "to kill." In the absence of other evidence suggesting a graver intent, it could not be definitively concluded that Vijai intended for Bashir to be murdered.

• Material Improvement in Testimony: The Court pointed out a crucial discrepancy between the initial FIR and the subsequent court testimony. The FIR, filed by the deceased's brother, only mentioned Vijai’s exhortation. However, during the trial, witnesses added that Vijai had also brandished a knife and threatened others. The Court deemed this a "material improvement" that cast doubt on the prosecution's narrative. > "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... is not free from all doubt."

• No Participation in Assault: The fact that Vijai did not use his alleged weapon to assault the deceased was a significant factor. The Court found it improbable that someone sharing a common intention to kill would remain a passive bystander during the actual attack.

Final Verdict and Implications

Concluding that the prosecution had failed to prove beyond a reasonable doubt that Vijai shared a common intention to commit murder, the High Court allowed the appeal.

"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... On such a weak piece of evidence, the accused cannot be convicted for such a heinous offence on the test-beyond reasonable doubt."

The conviction and sentence from 1984 were set aside, and Vijai @ Babban was acquitted of all charges. The Court directed his immediate release. This judgment serves as a critical reminder for trial courts to carefully weigh evidence of exhortation and to distinguish mere presence from active participation in a crime when applying the principle of vicarious liability under Section 34 IPC.