Recently, the Delhi High Court set aside a conviction under Section 302 read with Section 34 of the Indian Penal Code, 1860, after finding that the prosecution did not prove that the accused shared a common intention with those involved in a fatal assault inside a DTC bus. The case turned on an allegation that he had shouted “Maro Sale Ko” during the incident, a phrase the Court found too uncertain, by itself, to establish an intention to cause death. The Bench held that liability for murder with the aid of Section 34 of the IPC cannot be imposed on the basis of an ambiguous exhortation unless there is reliable evidence of a shared plan or common intention to commit the offence.
Brief facts:
The case arose from a fatal altercation inside a DTC bus, where a dispute allegedly broke out after some passengers were accused of misbehaving with two women travelling in the vehicle. During the incident, one person was allegedly stabbed and later died, while two others sustained injuries. The appellant was not alleged to have used any weapon; the prosecution attributed to him only an exhortation, “Maro Sale Ko,” from the rear of the bus. A chargesheet was filed for offences under Sections 302, 307 and 34 of the IPC, along with provisions of the Arms Act, 1959. He was subsequently convicted for murder under Section 302 read with Section 34 of the IPC and sentenced to life imprisonment. His appeal against the conviction, which remained pending before the High Court for over two decades, required the Court to examine whether the alleged exhortation was sufficient to establish a shared intention to commit murder.
Contentions of the Appellant:
Counsel for the appellant argued that the prosecution's evidence contained material inconsistencies regarding the events inside the bus, including the alleged exhortation. The counsel submitted that the Test Identification Parade was unreliable as witnesses had allegedly seen the accused beforehand, rendering the subsequent dock identification unsafe. The appellant further contended that no weapon or overt act was attributed to him and that the words “Maro Sale Ko” could not, without proof of knowledge of the knives or a shared plan, establish common intention to commit murder under Section 34 of the IPC.
Contentions of the Respondent:
The State opposed the appeal, arguing that the appellant’s refusal to join the Test Identification Parade warranted an adverse inference. The counsel submitted that witnesses had identified him as the person who exhorted the others and participated in the assault, with no prior enmity to suggest false implication. The prosecution further contended that minor inconsistencies were natural and that the accused had acted with a common intention after boarding the bus armed with knives.
Observation of the Court:
The Court observed, “the authenticity of the TIP proceedings is under a serious cloud of doubt.” It noted that the witnesses’ testimonies raised doubts over whether the accused had been seen before the Test Identification Parade, particularly when the order sheet recorded that all four accused were present in judicial custody “in open face.” The Bench therefore held that the appellant’s refusal to participate in the TIP could not invite an adverse inference and that the subsequent dock identification could not be safely relied upon.
Further, the Court observed, “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.” It noted that while some witnesses claimed to have identified the appellant, their accounts contained inconsistencies regarding the seating arrangement, the sequence of events, the alleged exhortation and the role played by the accused. The Court also noted that witnesses had not actually seen the person alleged to have exhorted from the rear of the bus.
Moreover, the Bench noted, “no overt act involving use of any weapon has been assigned to the appellant, and his role has been limited to an alleged exhortation of the words ‘Maro Sale Ko’ from the back of the bus.” It held that Section 34 of the IPC requires proof that the accused shared a common intention to commit the particular crime and acted in furtherance of that intention. The Court found no evidence that the appellant knew that the co-accused were carrying knives or that he had shared an intention to cause death.
Finally, the Court held, “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.” It observed that the alleged words could have been uttered in response to the deceased and another witness reprimanding the persons standing at the front of the bus. The Bench consequently held that the prosecution had failed to prove beyond reasonable doubt that the appellant shared a common intention with the co-accused who allegedly stabbed the deceased.
The decision of the Court:
The Court allowed the appeal, set aside the trial court’s conviction and sentence orders, and acquitted the appellant of the charge against him, discharging his personal bond and sureties.
Case Title: Shri Mukesh Kumar v. State/National Capital Territory of Delhi
Case No.: CRL.A. 602/2004
Coram: Hon'ble Mr. Justice Navin Chawla and Hon'ble Mr. Justice Ravinder Dudeja
Advocates for Appellant: Adv. Himanshu Anand Gupta, Adv. Mansi Yadav, Adv. Karan Jain, Adv. Mike Desai, Adv. Shekhar Anand Gupta
Advocates for Respondent: APP Aman Usman, Adv. Manvendra Yadav, Adv. Atiq Ur Rehman
Read Judgment @ Latestlaws.com
Picture Source :