Mere Presence at Crime Scene Without Overt Act or Meeting of Minds Insufficient for Murder Conviction: Delhi High Court

This distinction becomes especially significant when the prosecution relies on circumstantial evidence. The presence of an accused near the scene, an earlier disagreement with the victim, or an attempt to flee may establish involvement in an incident. However, the question of whether such involvement extends to an intention to cause death demands a separate examination.

The Delhi High Court addressed this issue in Abhishek Sharma v. State NCT of Delhi (CRL.A. 1106/2025), decided on 28 October 2026. A Division Bench comprising Justice Prathiba M. Singh and Justice Vikas Mahajan examined whether an accused could be held guilty of murder under Section 302 read with Section 34 of the Indian Penal Code, 1860 (IPC) [Sections 103(1) and 3(5) of the BNS], when no specific overt act was attributed to him and the fatal weapon was recovered from his co-accused.

The Court found that although the appellant’s presence and involvement in the incident were established, the prosecution had failed to prove that he shared a common intention to murder the deceased.

Importantly, the High Court did not grant a complete acquittal. It modified the conviction from Section 302 IPC (now Section 103 BNS) read with Section 34 IPC [now Section 3(5) BNS] to Section 326 IPC [now Section 118(2) BNS] read with Section 34 IPC [now Section 3(5) BNS], while maintaining the conviction under Section 201 IPC [now Section 238 BNS] read with Section 34 IPC [now Section 3(5) BNS].

The judgment reinforces an important principle of criminal jurisprudence: the extent of an accused person’s criminal liability must correspond to the intention and participation established by the evidence, rather than merely the gravity of the eventual consequence.

Background of the Case

The prosecution case arose from the death of Manoj Kumar Jha on 31 January 2021 at approximately 8:00 PM in a vacant plot situated at Vijay Nagar, Uttam Nagar, Delhi.

According to the prosecution, an altercation had occurred on the previous evening, 30 January 2021, between the deceased and two individuals, including appellant Abhishek Sharma and a Child in Conflict with Law (CCL).

The deceased and Vinod Kumar Jha had reportedly objected to the two individuals consuming intoxicating substances in the vacant plot, which was being used for parking vehicles. Following the objection, the two individuals left the location.

On the following evening, Manoj Kumar Jha was sitting near a bonfire with his relatives. After receiving a telephone call, he walked towards the vehicles parked nearby. Shortly thereafter, his relatives heard his screams and rushed towards him.

They discovered him lying between two vehicles with serious stab injuries. Two individuals, subsequently identified as Abhishek Sharma and the CCL, were allegedly seen running away from the scene.

The injured was taken to Deen Dayal Upadhyay Hospital, where he was declared brought dead. An FIR bearing No. 52/2021 was registered at Police Station Uttam Nagar under Section 302 IPC [Section 103(1) BNS].

During the investigation, the police recovered CCTV footage showing the movements of the two individuals around the time of the incident. On 3 February 2021, the appellant and the CCL were apprehended. A button-operated knife was recovered from the CCL during his personal search. The investigation also resulted in the recovery of remnants of burnt clothing, allegedly destroyed by the accused to conceal evidence of their involvement.

The prosecution alleged that both individuals had participated in the murder and subsequently attempted to destroy evidence.

The CCL was proceeded against separately before the Juvenile Justice Board.

Trial Court Conviction and Sentence

The prosecution examined 24 witnesses, including relatives of the deceased, medical experts and investigating officers. The Additional Sessions Judge, Dwarka Courts, convicted Abhishek Sharma on 7 July 2025 for offences punishable under Sections 302, 201 and 34 IPC [Sections 103(1), 238 and 3(5) of BNS]

The Trial Court relied primarily on circumstantial evidence, including the previous altercation, the appellant’s presence at the crime scene, CCTV footage, witness identification, recovery of the weapon and burnt clothing, and medical evidence.

It concluded that the prosecution had established a complete chain of circumstances demonstrating that the appellant and the CCL shared a common intention to murder the deceased.

By its sentencing order dated 15 July 2025, the Trial Court imposed life imprisonment and a fine of ₹1,000 under Section 302 read with Section 34 IPC [now Sections 103(1), 3(5) BNS]. It also awarded three years’ imprisonment and a fine of ₹1,000 under Section 201 read with Section 34 IPC [Sections 238 and 3(5) BNS].

Both sentences were directed to run concurrently. Aggrieved by the conviction and sentence, Abhishek Sharma approached the Delhi High Court under Section 415 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

Issues Before the Delhi High Court

The appeal raised several interconnected questions concerning criminal liability based on common intention:

1. Whether the appellant’s presence at the crime scene and subsequent flight were sufficient to establish a common intention to commit murder under Section 34 IPC/ Section 3(5) BNS.
2. Whether an accused could be convicted under Section 302 read with Section 34 IPC[ Sections 103(1) and 3(5) BNS] without evidence of any specific overt act or participation in the fatal assault.
3. Whether the previous altercation, CCTV footage and recovery evidence established a shared intention to cause death.
4. Whether the appellant could instead be held liable for causing grievous hurt by a dangerous weapon under Section 326 read with Section 34 IPC [Sections 118(2) and 3(5) BNS].
5. Whether the conviction for causing the disappearance of evidence under Section 201 read with Section 34 IPC [now Section 238 and 3(5) BNS] was sustainable.

Circumstantial Evidence Established Presence, But Not Necessarily Common Intention to Murder

The High Court first examined the circumstances relied upon by the prosecution. The evidence established that an altercation had occurred between the deceased and the accused on the day preceding the incident. Witnesses also identified the appellant as one of the individuals seen running away immediately after the stabbing.

The CCTV footage, which was played before the High Court, showed the appellant and the CCL entering the vacant plot and subsequently fleeing at a fast pace.

However, the footage did not capture the actual stabbing. The Court also considered the testimony of PW-3 Vinod Kumar Jha, who had claimed during trial that he witnessed the accused stabbing the deceased.

This assertion was found to be an improvement over his earlier statement recorded under Section 161 CrPC (Section 180 BNSS), which contained no such allegation.

Consequently, the High Court agreed with the Trial Court that there was no eyewitness to the actual stabbing and that the prosecution case was based on circumstantial evidence. The Bench nevertheless accepted that the circumstances pointed towards the appellant’s involvement in the incident.

The decisive question was whether that involvement established the specific common intention necessary for a murder conviction.

The Court observed in paragraph 46:

“But the question which requires consideration is whether it could be said that the Appellant shared a common intention with the CCL to cause the death of the deceased, Manoj Kumar Jha, since there is not an iota of evidence to throw light on the role played by the Appellant in the commission of the offence.”

This observation marks the central distinction in the judgment. Evidence suggesting participation in a criminal occurrence does not necessarily establish participation in every offence committed during that occurrence.

The prosecution must prove that the criminal act for which joint liability is sought was committed in furtherance of the common intention shared by the accused.

Section 34 IPC [Section 3(5) BNS]: Common Intention Cannot Be Presumed from Mere Association

Section 34 IPC [Section 3(5) BNS] incorporates the principle of joint criminal liability where a criminal act is committed by several persons in furtherance of their common intention.

The provision does not require every accused to personally inflict the fatal injury. An accused who does not physically attack the victim may still be liable for murder if the prosecution establishes the necessary common intention and participation in the criminal act.

However, common intention and similar intention are legally distinct concepts. Two individuals may harbour resentment against the same person without necessarily agreeing to murder that person. Similarly, their presence together before or after an incident does not, by itself, establish a shared intention to cause death.

The High Court referred to the Supreme Court’s decision in Constable 907 Surendra Singh v. State of Uttarakhand, (2025) 5 SCC 433, which reiterated the requirement of a meeting of minds for invoking Section 34 IPC [Section 3(5) BNS].

The judgment also drew upon Laxmanji and Another v. State of Gujarat, (2008) 17 SCC 48, where the Supreme Court clarified that common intention may develop during the occurrence itself and does not necessarily require prior conspiracy or premeditation.

The crucial requirement is proof that the accused shared the relevant intention and participated in the criminal act. Thus, the absence of an individual overt act does not automatically exclude Section 34 IPC [Section 3(5) BNS], provided common intention is otherwise established. Conversely, even proof of physical participation cannot justify liability for murder when the necessary common intention to cause death remains unproved.

This distinction prevents the doctrine of constructive liability from becoming an instrument for attributing the most serious offence to every individual associated with a criminal incident.

No Overt Act Attributed to the Appellant

One of the most significant aspects of the judgment was the complete absence of evidence identifying any specific act committed by Abhishek Sharma during the fatal assault.

The prosecution established that the CCL possessed a knife. The weapon was recovered from the CCL during his personal search. The medical evidence indicated that the injuries sustained by the deceased could have been inflicted by the recovered knife.

Although the appellant had allegedly referred to using a blade in his disclosure statement, no such blade was recovered during the investigation.

The High Court observed that the medical evidence did not establish the use of any second weapon. There was also no evidence that the appellant had restrained the deceased, held his hands, inflicted any injury or otherwise physically facilitated the fatal stabbing.

The Bench noted that the earlier altercation did not involve any threat by the appellant to kill the deceased. According to PW-3, the two individuals had simply left the vacant plot when asked not to consume drugs there.

These circumstances weakened the prosecution’s contention that the appellant shared an intention to commit murder.

In paragraph 58, the Court emphasised:

“There is only one fatal injury i.e. injury no.1 and there is no evidence to show that the Appellant was carrying any weapon in his hand nor there is an iota of evidence to attribute any overt act to the Appellant”

The absence of an overt act was particularly relevant because the prosecution had also failed to establish any other circumstances conclusively demonstrating a shared intention to kill.

The Court therefore declined to infer an intention to commit murder merely from the appellant’s association with the knife-carrying co-accused.

Supreme Court Precedents on Common Intention and Vicarious Liability

The High Court examined several judicial precedents addressing the distinction between participation in an assault and common intention to commit murder.

Shambhu Kuer v. State of Bihar, (1982) 1 SCC 486

In this case, the accused had caught hold of the deceased and scuffled with him while a co-accused inflicted knife injuries. The Supreme Court held that such participation did not necessarily establish that the accused shared the intention to murder the deceased.

The conviction was accordingly altered to Section 326 read with Section 34 IPC [Sections 118(2) and 3(5) BNS]. The decision demonstrates that even physical involvement in an assault may not establish common intention to commit murder.

Laxmanji and Another v. State of Gujarat, (2008) 17 SCC 48

The Supreme Court considered a situation in which unarmed accused persons held the deceased while the principal offender inflicted fatal knife blows. The Court distinguished between participation in the criminal act and the intention accompanying that participation.

It clarified that common intention can develop during the occurrence itself. However, where participation is established but the common intention to murder is absent, Section 34 IPC [Section 3(5) BNS] cannot be invoked to sustain a murder conviction.

The decision is particularly important because it recognises that the doctrine of common intention cannot be applied mechanically to every participant in a violent incident.

Viji and Another v. State of Karnataka, (2008) 15 SCC 786

In Viji, the Supreme Court cautioned against indiscriminately extending criminal liability to all persons involved in an assault.

The Court explained that criminal courts must carefully examine the weapons used, the acts attributed to individual accused persons, the degree of force employed and the circumstances surrounding the occurrence.

The intention shared by a group may be limited to assault, even though one participant subsequently commits a more serious offence.

Consequently, courts must distinguish between the common intention of the participants and any independent act that exceeds its scope.

Darshan Singh and Another v. State, 2013 SCC OnLine Del 5047

Delhi High Court also referred to its earlier decision in Darshan Singh, where certain accused persons had exhorted the principal offender before the fatal stabbing.

Despite this conduct, the Court found insufficient evidence to establish a common intention to murder. The conviction was modified to Section 326 read with Section 34 IPC [Sections 118(2) and 3(5) BNS].

The precedent reinforced the requirement that the prosecution establish a genuine meeting of minds rather than merely similar intentions or association between accused persons.

Shri Kishan and Others v. State of Uttar Pradesh, (1972) 2 SCC 537

In Shri Kishan, the Supreme Court considered a case where several accused persons had assaulted the deceased, but the prosecution could not identify which individual inflicted the fatal blow. The Court distinguished the common intention to cause grievous injuries from the act of causing death.

It held that an individual exceeding the common intention could incur personal liability for the fatal injury, while the remaining participants could be held liable only for the offence committed in furtherance of their shared intention.

The High Court relied upon this reasoning to examine whether Abhishek Sharma’s liability could extend to murder.

Why the Murder Conviction Could Not Be Sustained

Applying these principles, the Delhi High Court concluded that the evidence was insufficient to establish that Abhishek Sharma shared a common intention to murder Manoj Kumar Jha.

Although his presence at the scene, his association with the CCL and his subsequent conduct were established, the prosecution had not demonstrated that he inflicted the fatal injury or participated in the assault with an intention to cause death.

The Court considered it significant that the knife was recovered from the CCL, while no weapon was recovered from the appellant. Furthermore, there was no evidence that the appellant restrained the deceased or performed any overt act facilitating the fatal injury.

The previous disagreement also did not establish a plan to commit murder. The Court therefore found that the Trial Court had erred in treating the circumstantial evidence as conclusively establishing a common intention to kill.

However, the Bench did not conclude that the appellant had no criminal liability. It held that the appellant’s accompanying the knife-carrying CCL, viewed in the circumstances of the incident, established a common intention to cause grievous hurt by a dangerous weapon.

Accordingly, the Court held that the appropriate conviction was under Section 326 read with Section 34 IPC [now Sections 118(2) and 3(5) BNS] rather than Sections 302 read with Section 34 IPC [Sections 103(1) and 3(5) of the BNS]. This distinction is fundamental to understanding the judgment. The ruling does not suggest that mere presence at a crime scene always results in acquittal. Rather, it requires courts to identify the precise offence supported by the proved common intention.

Conviction Under Section 201 IPC (Section 238 BNS) Upheld

The High Court separately examined the appellant’s conviction for causing the disappearance of evidence. The prosecution had alleged that the appellant and the CCL burnt their upper clothing after the incident to conceal their involvement.

The Court relied upon the testimonies of PW-22, PW-23 and PW-24, who established the recovery of burnt clothing remnants pursuant to the investigation. It found that the prosecution had successfully proved the appellant’s involvement in destroying evidence to screen himself from legal punishment.

Consequently, the conviction under Section 201 read with Section 34 IPC [Sections 238 and 3(5) BNS] was maintained. The sentence of three years’ imprisonment and a fine of ₹1,000 imposed for this offence also remained undisturbed.

The finding demonstrates that the failure to establish common intention to commit murder does not automatically eliminate liability for other independently established offences.

Final Decision of the Delhi High Court

The Division Bench partly allowed the appeal and modified the conviction of Abhishek Sharma. The Court substituted the conviction under Section 302 read with Section 34 IPC [Section 103(1) and 3(5) of the BNS] with a conviction under Section 326 read with Section 34 IPC [Sections 118(2) and 3(5) BNS].

The conviction under Section 201 read with Section 34 IPC [Sections 238 and 3(5) BNS] was upheld. While determining the appropriate sentence, the Court considered the appellant’s nominal roll, which showed that he had already undergone approximately five years and eight months of actual detention.

The Bench held that the period already undergone would meet the ends of justice for the offence under Section 326 read with Section 34 IPC [Section 118(2) and 3(5) BNS]. Since the three-year sentence under Section 201 read with Section 34 IPC [Section 238 and 3(5) BNS] had also been served, the Court directed the appellant’s release, provided he was not required in any other case.

The operative decision appears in paragraphs 61–66 of the judgment.

Significance of the Judgment

The judgment offers an important clarification of how courts should approach common intention in cases involving multiple accused persons and circumstantial evidence.

1. It reinforces the principle that proof of presence and involvement does not necessarily establish a common intention to commit murder. The prosecution must prove the particular intention required for the offence charged.
2. It recognises that criminal liability under Section 34 IPC [Section 3(5) BNS] is not dependent exclusively on the commission of an individual overt act. An accused may be liable without personally inflicting an injury, but only where the shared criminal intention and participation are established.
3. The decision illustrates the importance of distinguishing the intention to cause grievous hurt from the intention to cause death. Where one participant exceeds the scope of the common intention, the criminal liability of the others must be determined independently.
4. The judgment demonstrates the evidentiary limits of CCTV footage. Footage establishing the presence and movements of accused persons may be highly relevant, but it cannot automatically prove an act or intention that it does not depict.

Finally, the decision emphasises that criminal courts must avoid treating every participant in an incident as equally responsible for its most serious consequence.

The judicial inquiry must focus on the precise role, conduct and intention established against each accused.

Conclusion

The Delhi High Court’s decision in Abhishek Sharma v. State NCT of Delhi reiterates that the doctrine of common intention cannot be used to impose criminal liability beyond what the evidence establishes.

The appellant’s presence at the crime scene, association with the knife-carrying co-accused and subsequent flight were relevant circumstances. Nevertheless, they did not conclusively demonstrate that he shared an intention to murder the deceased.

By modifying the conviction from murder to voluntarily causing grievous hurt by a dangerous weapon while maintaining the conviction for destruction of evidence, the Court distinguished between the different levels of criminal responsibility established by the prosecution.

The judgment ultimately underscores that criminal liability must rest on proven participation and the legally relevant common intention, not merely on association, suspicion or the seriousness of the resulting offence.