Merely Exhorting Co-Accused Not Enough To Sustain Murder Conviction: Allahabad High Court Acquits Life Convict After 42 Years

After 42 years long legal battle, the Allahabad High Court acquitted a man serving life term for a murder, stated to have been exhorted by him.

The bench of Justice Saumitra Dayal Singh and Justice Madan Pal Singh was of the view that general exhortation is a weak piece of evidence and unless the prosecution shows "meeting of minds" upon exhortation, which led the co-accused to stab the deceased, the former cannot be convicted for murder.

The Appellant was convicted under Section 302 (Murder) read with Section 34 IPC.

Section 34 deals with common intention in criminal acts. It states that when an act is done by several persons in furtherance of their common intention, each person is liable for that act as if it were done by them individually.

In the case at hand, the Appellant had allegedly shouted "Maaro saale ko" during an altercation between the co-accused and the deceased, allegedly prompting the accused to stab the deceased. The trial court had attributed common intention to kill between the Appellant and the co-accused.

However, the High Court found that the co-accused and the deceased had crossed paths while returning from work and heated words were exchanged between them which led to the incident. "It was not the case that the accused were waiting to kill the deceased." Therefore, no premeditation of mind between the appellant and co-accused was found.

The Court held that there were two conditions to be fulfilled to fasten liability under Section 34 of IPC; first, common intention, and second, 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.”

It further held thatT 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.

Since common intention was not proved and the only other accusation was exhortation, the Court held that evidence of exhortation, urging/ encouraging someone to do something, is a weak piece of evidence unless there is clear, cogent evidence that the person accused of exhortation has urged the actual assailant.

It said, “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.”

The Court held that exhortation by the appellant was not proved and the appellant could not be convicted on the test of beyond reasonable doubt. Accordingly, the conviction order of the Trial Court was set aside.

Case Title: Vijai @ Babban v. State of U.P. [Case :- CRIMINAL APPEAL No. - 2977 of 1984]

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