Mere Presence and Generic Exhortation Are Insufficient for Section 302/34 IPC: Allahabad High Court’s Rigorous Threshold for Common Intention

Case: Vijai @ Babban v. State of U.P., 2025:AHC:134249-DB (Allahabad High Court, Division Bench)

Bench: Hon’ble Saumitra Dayal Singh, J. and Hon’ble Madan Pal Singh, J. (Per Madan Pal Singh, J.)

Date of Decision: 08 August 2025

Trial Court: Ist Additional Sessions Judge, Jhansi (conviction under Section 302/34 IPC on 20.10.1984)

Introduction

This criminal appeal revisited a classic yet frequently misunderstood corner of Indian criminal jurisprudence—the scope of vicarious liability under Section 34 IPC (acts done by several persons in furtherance of common intention). The appellant, Vijai @ Babban, stood convicted under Section 302/34 IPC for the murder of Bashir Shah, primarily on the strength of his alleged exhortation—“Maro sale ko”—and his presence at the scene where co-accused Narendra inflicted multiple stab wounds leading to death. The co-accused’s separate appeal had abated due to his demise.

The key question before the Allahabad High Court was whether mere presence coupled with a generic exhortation, without a proven overt or covert act or other compelling circumstances, could sustain a conviction under Section 302 read with Section 34. The Court answered in the negative, carefully synthesising a line of Supreme Court authorities and enforcing a demanding evidentiary threshold for inferring “common intention.”

Factual Background

• Date and place: 17.12.1983, around 7:45 p.m., near the house of Khem Chand in the Khushipura/Kapoor Tekari area, Jhansi.
• Parties: Deceased Bashir Shah (brother of informant P.W.1 Bahadur Shah); accused Narendra Kumar (principal assailant) and appellant Vijai @ Babban.
• Trigger: A quarrel over a woman named Kanti—Narendra allegedly visited her with “bad intentions”; the deceased treated her as a sister and had previously warned Narendra.
• Occurrence: After a verbal exchange, Narendra stabbed the deceased 3–4 times. The prosecution attributed to the appellant either a general exhortation (“Maro sale ko”/“Sale ko khatam kar do”) or brandishing a knife and threatening intervenors, though crucial aspects (like brandishing) were not recorded in the FIR but surfaced later in testimony.
• Medical evidence: Post-mortem recorded multiple stab and incised wounds to the chest and back; cause of death was shock and haemorrhage.

Issues

• Whether the appellant shared a common intention with the principal assailant so as to attract Section 34 IPC.
• Whether a generic exhortation like “Maro sale ko” and mere presence at the scene, without more, suffices to establish common intention for a murder conviction under Section 302/34.
• What is the evidentiary value of improvements at trial that were absent from the FIR, particularly when they concern the appellant’s core role.
• Whether absence of premeditation, chance encounter, and non-use of an alleged weapon by the appellant negate the inference of shared design.

Summary of the Judgment

The High Court allowed the appeal, set aside the conviction and life sentence under Section 302/34 IPC, and acquitted the appellant. It held:

• The prosecution proved the appellant’s presence but failed to establish the indispensable elements of Section 34—common intention plus participation through an overt or covert act or omission.
• Exhortation alone, especially a generic phrase like “Maro sale ko,” is a weak piece of evidence. Absent clear, cogent, and corroborated proof of facilitative conduct or circumstances compelling a necessary inference of shared intention, conviction under Section 302/34 is unsustainable.
• No premeditation or prior meeting of minds was shown; the encounter was chance-based with a spontaneous altercation.
• Material improvements at trial (e.g., brandishing a knife and threatening intervenors) that were missing from the FIR undermined reliability and could not fill the evidentiary gap on common intention.
• The appellant’s non-use of any weapon, despite allegedly possessing one, and the existence of a separate personal angle (P.W.2’s cross-examination suggested the appellant spoke of marrying Kanti while Narendra had an illicit relationship with her) further weakened the inference of a shared murderous design.

Consequently, the Court held that the rigorous test for Section 34 was not met and ordered the appellant’s release, subject to Section 437-A CrPC compliance.

Detailed Analysis

A. Precedents Cited and Their Influence

• Pandurang v. State of Hyderabad, 1955 1 SCR 1083:
  • Principle: Common intention must be a necessary—not merely possible—inference from circumstances; no special rule of evidence; each case turns on facts.
  • Applied here to stress that chance meeting, absence of prior concert, and lack of compelling post-occurrence conduct (e.g., systematic plan, running away together) undercut an inference of shared intention.
• Jainul Haque v. State of Bihar, AIR 1974 SC 1651:
  • Principle: Evidence of exhortation is inherently weak; courts must insist on clear, cogent, and reliable proof before fastening abetment liability.
  • Used to treat “Maro sale ko” as too generic and uncorroborated to found vicarious murder liability.
• Surendra Chauhan v. State of M.P., (2000) 4 SCC 110:
  • Principle: Section 34 requires (i) common intention and (ii) participation; common intention can form on the spot, but participation must exist.
  • Reinforced the necessity of some facilitative presence or action—mere co-location is insufficient.
• Suresh v. State of U.P., (2001) 3 SCC 673:
  • Principle: Participation may be an overt or even covert act; in some cases, an omission can suffice; however, some act/omission is indispensable.
  • The Court used this ceiling: where no such act/omission is proved, Section 34 cannot be invoked—even if an accused harboured similar intent internally.
• Ramesh Singh @ Photti v. State of A.P., AIR 2004 SC 4545:
  • Principle: Essence of Section 34 is joint liability grounded in common intention inferred from arrival, manner of attack, nature of injuries, and post-occurrence conduct.
  • Emphasised holistic assessment of circumstances—absent here.
• Nagaraja v. State of Karnataka, (2008) 17 SCC 277:
  • Principle: Presence alone does not attract Section 34; participation and common intention must both be established.
  • Parallels the Court’s finding that the appellant’s mere presence, without facilitative action, was not enough.
• Matadin v. State of Maharashtra, (1998) 7 SCC 216:
  • Principle: Words like “maro sale ko” are inherently ambiguous—could mean “beat” or “kill”; absent tone, context, or corroboration, they cannot ground a murder conviction via Section 34.
  • Directly analogous; the High Court relied on this to discount the probative force of generic exhortation.
• State of Orissa v. Arjun Das Aggarwal, (1999) 8 SCC 154:
  • Principle: Mere roadside instigation without participation or causal impact on the quantum of attack does not establish common intention to kill.
  • Strengthened the Court’s refusal to convert presence + generic instigation into vicarious murder liability.
• Parshuram Singh v. State Of Bihar, (2002) 8 SCC 16:
  • Principle: Even an alleged leader’s oral command (“order to kill”) cannot suffice absent surrounding circumstances showing genuine leadership and participation; non-use of available weapon undermines common intention.
  • Mirrors the appellant’s non-use of an alleged knife—telling against a shared murderous design.
• State of U.P. v. Farid Khan, (2005) 9 SCC 103:
  • Principle: Co-accused inflicting minor/non-vital injuries may not share intention to kill—conviction under Section 302/34 may be unsustainable.
  • Although not an exhortation case, it underscores calibration of liability based on nature of participation—a fortiori, where there is no assault at all.

B. The Court’s Legal Reasoning

The High Court built a careful, cumulative rationale:

• No premeditation; chance encounter: All eyewitnesses described a chance meeting followed by a spontaneous verbal altercation over Kanti. There was no evidence of the accused waiting in ambush or converging pursuant to a prior plan. This negated a priori common intention (para 21).
• Material improvements undermine reliability: The FIR, while not an encyclopedia, did not mention the appellant’s allegedly crucial acts (brandishing a knife, threatening intervenors). These surfaced at trial and were treated as material improvements going to the root of the case, especially because they directly bore on participation and facilitation (para 22).
• Presence proved; participation unproved: The Court accepted that the appellant was at the scene. However, Section 34 requires both common intention and participation by overt/covert act or omission. No such act/omission by the appellant was proved beyond reasonable doubt (paras 23–24, 31–32).
• Exhortation as weak evidence: Following Jainul Haque and Matadin, the Court characterised generic exhortations (“Maro sale ko” / “Sale ko khatam kar do”) as inherently weak; absent corroboration (e.g., actual facilitation, targeted instigation to kill, preventing rescue), they cannot sustain 302/34 liability (paras 31–33).
• Non-use of an alleged weapon: Even assuming the appellant had a knife (as later claimed), his failure to use it during a fatal attack was treated as a significant indicator against shared murderous intent (para 24; see also Parshuram Singh).
• Divergent personal motives: P.W.2’s cross-examination suggested the appellant spoke of marrying Kanti, whereas Narendra had an illicit relationship. The Court treated this as a further contextual reason to doubt a common design to kill Bashir (para 23).
• Failure to establish necessary inference: Applying Pandurang, the Court stressed that the inference of common intention must be a “necessary” one from the totality of circumstances—something missing here (paras 25, 31–32).

Put differently, the Court faithfully applied the Supreme Court’s two-element test for Section 34—common intention plus participation—and held that exhortation alone could not supply both in the absence of independent, corroborated facilitative conduct.

C. The Rule Clarified (Doctrinal Takeaway)

In practical terms, the decision crystallises the following rule for Section 302/34 IPC:

• Mere presence at the scene and a generic exhortation such as “Maro sale ko” are insufficient to establish common intention to kill, unless:
  • (a) the exhortation is shown by clear, cogent, and reliable evidence to be a targeted, killing-specific instigation; and
  • (b) the exhortation is accompanied by some overt or covert act or omission demonstrably facilitating the murder; and
  • (c) the surrounding circumstances (e.g., premeditation or on-the-spot concert; coordinated conduct; prevention of rescue; common movement pre/post incident) compel a necessary inference of shared design.

D. Impact and Implications

• Higher threshold for 302/34 based on exhortation: Trial courts in U.P. (and persuasively elsewhere) are likely to scrutinise exhortation-based prosecutions with added rigor. The State must present corroborative evidence of facilitation and a necessary inference of common intention.
• Investigative focus: Investigators must promptly capture specific instigation words (tone, context), any acts of blocking/interfering, pre/post-incident coordination, and physical evidence of facilitation. Omissions in the FIR concerning such core roles may be difficult to cure later.
• Charging strategy: In borderline exhortation cases, prosecutors may need to consider abetment charges (Sections 107–109 IPC) where evidence indicates instigation but not participatory facilitation, or calibrate liability to lesser offences where appropriate.
• Defence strategy: The decision strengthens defences that rely on the absence of premeditation, lack of overt/covert facilitative conduct, non-use of available weapons, material improvements at trial, and divergent motives among co-accused.
• Doctrinal consistency: The judgment harmonises High Court practice with controlling Supreme Court jurisprudence (Pandurang, Suresh, Matadin, Nagaraja, etc.), thereby enhancing predictability in group liability cases.

Complex Concepts Simplified

• Section 34 IPC (Common Intention): A person can be held guilty for someone else’s act if both shared a common intention to commit that crime and the person participated in some way (by act or omission) to make it happen.
• Common Intention vs. Similar Intention: Similar intention means two people independently want the same thing. Common intention means they act together under a shared design. Section 34 requires the latter.
• Overt vs. Covert Act (or Omission): An overt act is visible (e.g., holding the victim, blocking rescuers). A covert act is not obvious (e.g., a deliberate failure to warn the victim). Either can suffice if it demonstrably furthers the crime.
• Exhortation: Words of instigation (“hit him,” “finish him off”). Courts treat this as weak evidence unless it is specific, credible, corroborated, and causally tied to the offence.
• Material Improvement: When a witness adds crucial details at trial that were absent in the FIR or earlier statements, particularly on the core role of an accused. Courts view such improvements with suspicion.
• Premeditation vs. On-the-spot formation: Common intention can be pre-planned or can emerge suddenly during the incident. But even on-the-spot formation needs proof of participatory conduct.
• Vicarious Liability (under Section 34): Holding one person legally responsible for another’s criminal act due to shared intention and participation.
• Abatement of Appeal: If an accused dies during the pendency of his appeal, the appeal abates (is closed) as to him.
• Section 437-A CrPC: Even after acquittal, an accused must furnish a bond to ensure his availability in case the State seeks further appeal.

Case-Specific Observations Worth Noting

• FIR vs. Testimony: The FIR did not allege the appellant brandished a knife or threatened intervenors; this key facilitative role appeared later at trial. The Court treated that as a material improvement (para 22).
• Non-use of Weapon: The appellant allegedly had a knife but did not use it in the attack. This strongly weighed against a shared homicidal intent (para 24; reinforced by Parshuram Singh).
• Motivic divergence: Evidence suggested different personal motives towards Kanti between the co-accused, undermining the “common design” theory (para 23).
• Chance meeting and spontaneous quarrel: This cut against prior concert; and there was no compelling evidence that a common intention crystallised on the spot along with any participatory act by the appellant (paras 21, 25, 32).

Practical Checklists

For the Prosecution (to sustain Section 34 in exhortation cases)

• Record specific words of exhortation in the FIR with contextual detail (tone, target, timing).
• Prove at least one facilitator-type act/omission by the “exhorter” (e.g., blocking rescue, guarding, supplying weapon, coordinating attack, preventing escape).
• Show circumstances compelling a necessary inference of shared design: arriving together, acting in concert, fleeing together, division of roles, post-incident coordination.
• Avoid material improvements—ensure early statements capture core roles.
• Where facilitative conduct is absent but instigation is clear, consider abetment charges (Sections 107–109 IPC) instead of Section 34.

For the Defence

• Highlight absence of premeditation or concert; portray event as spontaneous and chance-based.
• Expose material improvements between FIR and testimony, especially on the accused’s role.
• Stress non-use of alleged weapons; emphasise passivity or lack of facilitation.
• Underscore divergent motives; contest the inference of shared intention.
• Argue that “maro” is ambiguous (“beat” vs “kill”) unless context clearly shows an intent to kill.

Conclusion

Vijai @ Babban v. State of U.P. is a rigorous restatement and application of Supreme Court doctrine on Section 34 IPC. The Allahabad High Court underscores that:

• Two elements are indispensable for Section 34: common intention and participation through some act or omission that furthers the offence.
• Mere presence and a generic exhortation like “Maro sale ko,” without corroborated facilitative conduct or compelling circumstances, cannot sustain a conviction for murder with the aid of Section 34.
• Material improvements at trial, especially concerning the core role of an accused, may be fatal in proving common intention beyond reasonable doubt.
• Non-use of an available weapon and divergent motives among co-accused are powerful indicators against shared homicidal design.

The decision is significant for its clarity: exhortation-only cases must be treated with caution; prosecutors must marshal corroborative evidence of facilitation or instigation specifically geared toward the homicidal outcome. The judgment will likely shape trial strategies and charge-framing in group offence prosecutions, ensuring fidelity to the exacting standard of proof that Section 34 IPC demands.