Abhishek Sharma vs The State NCT Of Delhi

Vikas Mahajan, J.

This hearing has been done through hybrid mode.

The present appeal under Section 415 of Bharatiya Nagarik Suraksha Sanhita, 2023 [‘BNSS’] has been preferred by the Appellant, Abhishek Sharma, assailing the Judgment of Conviction dated 7^th July 2025 and the Order on Sentence dated 15^th July 2025 passed by the Ld. ASJ-02, South West, Dwarka Courts, New Delhi in Sessions Case No.728/2021.

Vide the impugned Judgment dated 7^th July 2025, the Appellant was convicted for the offences punishable under sections 302/201/34 of the Indian Penal Code, 1860, arising out of FIR No.52/2021, registered at Police Station-Uttam Nagar.

Vide the Order on Sentence dated 15^th July 2025, passed by the Trial Court, the Appellant was sentenced to undergo life imprisonment, with all sentences directed to run concurrently. The relevant portion of the said order is reproduced hereunder:

Briefly stated, the case of the prosecution, as borne out from the impugned Judgment, is that the Appellant was accused of committing the murder of one Manoj Kumar Jha on 31^st January 2021 at about 8:00 PM, at a vacant plot measuring 1300 square yards situated in front of House No. D-69, Vijay Nagar, (hereinafter referred to as the ‘Vacant Plot’), along with one CCL^{11.Child in Conflict with Law}.

It is further alleged that in order to screen themselves from legal punishment, the Appellant and the CCL burnt their upper clothes after the incident, thereby attracting Section 201 IPC.

The criminal law was set into motion with receipt of DD No. 78A on 31^st January 2021 at Police Station-Uttam Nagar. Pursuant thereto, SI Deepak Kumar along with SI Leela Ram reached the spot i.e. the vacant plot, where a wooden bed (‘takhat’) with bloodstains was found lying. No eyewitness was present at the spot at that stage. On enquiry, it transpired that the injured had already been taken to DDU Hospital by his relatives, where, as per MLC No. 887/21, he was declared brought dead, having sustained stab injuries from a sharp weapon. On this basis, FIR No. 52/2021 was registered at Police Station Uttam Nagar for the offence under Section 302 IPC.

On 1^st February 2021, the statements of PW-1 Tun Tun Kumar Mishra, PW-2 Krishna Nand Jha, PW-3 Vinod Kumar Jha and PW-5 Sulok Kumar Jha were recorded under Section 161 of the Code of Criminal Procedure, 1973 (herein after referred to as the ‘CrPC’).

PW Krishna Nand Jha, brother-in-law of the deceased, stated that on 31st January 2021, at about 8:00 PM, he had joined the deceased and one PW Vinod Kumar Jha, who were sitting near a bonfire at the said plot. The deceased walked away to attend a phone call.

Shortly thereafter, upon hearing the deceased’s screams, PW Krishna Nand Jha and PW Vinod Kumar Jha rushed to the spot and found him fallen between two cars, bleeding heavily from stab wounds. The accused Abhishek Sharma and the CCL were seen running away from the spot, which was subsequently corroborated by the CCTV footage.

On further enquiry, it emerged that on the previous evening i.e. 30^th January 2021, between 7:00–7:30 PM, an altercation had taken place at the Vacant Plot between the deceased on the one hand, and the Appellant and CCL on the other, over their consumption of intoxicants at the said plot.

The CCTV footage recovered from a nearby shop showed the Appellant and the CCL were running from the spot after the incident, the one holding the knife was identified as CCL, and the other as the Appellant.

On 1^st February 2021, the post-mortem was conducted by PW Dr. B.N. Mishra vide PM No. 209/21, and the cause of death was opined as cardiogenic shock caused by tearing of the right atrium, as a result of stabbing over the chest with a sharp-pointed weapon such as a knife. Injury no. 1 was found sufficient to cause death in the ordinary course of nature.

On 3^rd February 2021, the Appellant and CCL were apprehended from DDA Park, Hastsal, Uttam Nagar, on the basis of secret information received by the raiding team comprising HC Gopal Yadav and Ct. Ajay Kumar. The Appellant, being 18 years of age, was arrested, while CCL, being 17 years of age, was apprehended.

During personal search, a buttondar knife was recovered from the right pocket of CCL’s under-pant. The pant and shoes worn by the Appellant and CCL, as depicted in the CCTV footage, were seized. Both are alleged to have disclosed that they had burnt their upper clothes at a plot at Gali No. 12, near Balaji Road, Vikas Nagar, Uttam Nagar, to screen themselves from legal punishment, pursuant to which the remnants of the burnt clothes were recovered from the said spot.

CCL was sent to the Observation Home, Sewa Kutir, while the Appellant was remanded to police custody. It may be noted at this stage that, apart from the buttondar knife recovered from CCL, the Appellant has separately stated, in his own disclosure statement, to have used a blade in the assault, however, this second weapon i.e. the blade could not be recovered at any stage of the investigation.

The recovered buttondar knife was sent to the FMD Department, DDU Hospital, for a medical opinion. Vide subsequent opinion dated 2^nd March 2021, PW Dr. B.N. Mishra opined that the injuries found on the deceased could have been caused by the said knife. Age verification of both the Appellant and CCL was also conducted during investigation.

Upon completion of investigation, a chargesheet, and thereafter a supplementary chargesheet against the Appellant, were filed by the police under Section 173 CrPC, while the CCL was produced before the Juvenile Justice Board and continues to face trial before the said Board, as stated in the status report filed by the State.

Vide order dated 5^th May 2022, the Trial Court framed charges under Sections 302/201/34 IPC against the Appellant, to which he pleaded not guilty and claimed trial.

During the course of the Trial, and to prove its case, the prosecution examined 24 witnesses, of whom PW-2 Krishna Nand Jha, PW-3 Vinod Kumar Jha, PW-5 Sulok Kumar Jha, PW-6 ASI Satpal, PW-10 Dr. B.N. Mishra, PW-20 SI Leela Ram (first IO), PW-21 SI Deepak Kumar, PW-22 HC Ajay Kumar, PW-23 HC Gopal Yadav, and PW-24 Inspector Harpal Singh (second IO) were treated as the material witnesses. However, the prosecution’s case rests principally on the testimonies of PW-2, PW-3, PW-10, and PW-20 to PW-24.

Thereafter, the statement of the Appellant was recorded under Section 313 Cr.P.C., wherein he denied the evidence put to him and alleged false implication, but he did not lead any defence evidence.

On appreciation of the evidence on record, the Trial Court by its impugned Judgment dated 7^th July 2025 convicted the Appellant under Sections 302/201/34 IPC, holding that the prosecution had proved its case beyond reasonable doubt on the basis of the ocular and circumstantial evidence on record. The operative portion of the impugned Judgment reads thus:

(emphasis supplied)

We have heard Mr. R.S. Mishra, learned counsel for the Appellant and Mr. Ritesh Kumar Bahri, learned APP for the State and have perused the record.

The Trial Court after examining the CCTV footage has recorded that the act of stabbing is not captured in the CCTV footage. Further, on the basis of the evidence, it came to the conclusion that there is no eye-witness to the incident of accused stabbing the deceased, and the prosecution has sought to establish the case against the accused from the circumstantial evidence.

Upon examination of the testimonies of the witnesses, we also find that none of the prosecution witnesses have stated having actually witnessed the incident of stabbing of the deceased by the accused person. The Trial Court is, therefore, right in observing that the present case is based on circumstantial evidence.

The prosecution has pressed into service the following circumstances to bring home the guilt of the Appellant:

Insofar as the first circumstance i.e. motive is concerned, PW-3 Vinod Kumar Jha has proved the altercation that had taken place between the deceased and the Appellant. He, in his testimony, has stated that the Appellant on 30.01.2021 was smoking drugs along with his friend in the vacant plot which was used for parking vehicles. He and the deceased told the Appellant and his associate not to consume the drugs and they left the spot. However, on the very next date, i.e. 31.01.2021, the said boys who were told to go away from the vacant plot, stabbed the deceased Manoj Kumar Jha, and the Appellant was one of them. The relevant extract from the testimony of PW-3 Vinod Kumar Jha is set out hereinbelow for the sake of ready reference:

Insofar as circumstance no.(ii) viz. presence and identification of the Appellant is concerned, though it is correct that none of the witnesses had witnessed the actual incident of stabbing but PW-2 Krishna Nand Jha and PW-3 Vinod Kumar Jha have testified having seen the Appellant running from the spot immediately after the incident.

PW-2 Krishna Nand Jha, in his examination-in-chief, gave the description of the Appellant and the CCL stating that one was little taller and the other was of short height and the boy who was of shorter height was having knife in his hands. The Appellant was correctly identified by PW-2 during dock identification as one of the boys whom he saw in the CCTV footage. In his cross-examination, he stated that ‘it is correct that I did not see the faces of the boys, whom I saw running after the incident’. However, during his re-examination by the learned APP, he stated that he saw the faces of both persons when they looked behind while running from the spot. Likewise, in his further cross-examination, he stated that he saw the faces of the boys when they looked behind while running. The relevant extract from the testimony of PW-2 reads thus:

(emphasis supplied)

Likewise, PW-3 Vinod Kumar Jha testified that he had seen the boys, who were told to go away from the vacant plot, stabbing the deceased Manoj Kumar Jha. However, the witness was confronted with his statement recorded under Section 161 Cr.PC where it is not stated that he saw the accused stabbing the deceased. But, in his cross-examination, he again volunteered and stated only to the extent that he had seen the accused persons. The relevant part of the testimony of PW-3 Vinod Kumar Jha is reproduced hereinbelow:

The statement of PW-3 Vinod Kumar Jha to the extent he had seen the boys stabbing the deceased Manoj Kumar Jha is a clear improvement over his statement recorded by the police under Section 161 Cr.PC. Therefore, the Trial Court rightly came to the conclusion that there is no eye-witness to the incident of stabbing, however, the testimonies of PW-2 Krishna Nand Jha and PW-3 Vinod Kumar Jha clearly establishes that the Appellant was correctly identified as one of the two boys, who had come on 31.01.2021 and was seen running after the incident of stabbing. Further, no explanation has been offered by the Appellant about his presence at the crime spot, and he miserably failed to discharge the burden of explaining the circumstances in terms of Section 106 of the Indian Evidence Act, which were in his personal knowledge.

The Trial Court after examining the CCTV footage has made the following observations:

The CCTV footage was also played before us during the course of hearing of the present appeal. We fully agree with finding of the Trial Court that though the act of stabbing is not captured on the CCTV but other factors viz. (i) presence of Appellant and CCL in the vacant plot, (ii) the proximity of time between the incident of stabbing and their presence, (iii) the suspicious manner in which the two boys entered the plot, and (iv) the manner in which they ran at fast pace immediately after the incident, point towards their involvement in the incident of stabbing.

The circumstance no.(iii) is the recovery of offence weapon and the burnt clothes. The offence weapon i.e. knife, Ex.P-2, was recovered from the pocket of pant of the CCL during his personal search vide seizure memo, Ex.PW-23/A, by PW-24 Insp Harpal Singh in the presence of witnesses PW-23 HC Gopal Yadav and PW-22 HC Ajay Kumar. The said witnesses in their testimonies have also given justification for not joining independent witnesses. It is stated by them that the IO had requested 4-5 public persons but no public person joined investigation despite request. Their testimony is credible and there is nothing in their cross-examination which could raise doubt about the said recovery. It is trite that the recovery cannot be discarded merely because no independent witness was joined and the same has been effected in the presence of the police officials, especially when testimony of the police officials is found to be credible, and it has not been proved to the contrary.

As regards burnt clothes, PW-24 Insp Harpal Singh stated that the same were recovered on the basis of disclosure statements at the instance of the Appellant and the CCL who led the police to a vacant plot and pointed out towards the ash and disclosed that they burnt their upper clothes for destroying the evidence. Almost to the similar effect are the testimonies of PW-22 and PW-23. The remains/ash of burnt clothes were seized vide seizure memo, Ex. PW-22/B. Nothing could be elicited during the cross-examination of the said witnesses which could discredit the recovery of burnt clothes.

The Trial Court has thus, rightly recorded the following finding as regard the recovery of weapon and the burnt clothes:

As regards, circumstance no.(iv) viz. medical evidence is concerned, PW-10 Dr. B.N. Mishra, who conducted the post-mortem and prepared post-mortem report, Ex.PW10/A, testified that the cause of death was cardiogenic shock caused by tearing of the right atrium as a result of stabbing over the chest by a sharp pointed weapon like a knife, etc., and injury no. 1, as mentioned in the post-mortem report, was sufficient to cause death in the ordinary course of nature. He also stated that vide his subsequent opinion dated 2^nd March, 2021 (Ex.PW10/B), on the basis of nature of injuries sustained on the body of deceased and the nature of knife produced, he had opined that all injuries sustained on the body could have been inflicted by the weapon of offence i.e. knife. PW-10 was not cross-examined on the material aspects of his testimony despite opportunity.

As regards the blade which the Appellant mentioned in his disclosure statement, the same was never recovered at any stage as recorded in the police report filed under section 173 CrPC.

The medical evidence in the form of post mortem report (Ex.PW10/A), subsequent opinion (Ex.PW10/B) and testimony of PW-10 Dr. B.N. Mishra, clearly suggest that all the injuries on the body of the deceased could have been caused by the buttondar knife recovered from the CCL, and there is no evidence on record to show the use of any second weapon.

The Trial Court also dealt with the contention of the defence that no blood stains were found on the knife and no examination as to the finger prints was done at the behest of the I.O. It was rightly held by the Trial Court that this lapse on the part of the investigating agency cannot be considered to be fatal as the knife was recovered from the CCL during his personal search and it cannot be ruled out that the CCL and the Appellant might have washed the knife so as to remove the blood stains in the same way they had burnt their clothes.

Based on the above evidence, the Trial Court concluded that the testimonies of PW-2 Krishna Nand Jha and PW-3 Vinod Kumar Jha are credible and trustworthy and have also been corroborated by the prosecution witnesses as well as the medical/scientific evidence.

Further, there is also medical evidence in the form of post-mortem report prepared by PW-10 Dr. B.N. Mishra, who in his testimony opined that injury no. 1, which was the result of stabbing over the chest by sharp pointed weapon like knife, was sufficient to cause death in the ordinary course of nature.

Therefore, from the medical evidence on record it is clearly established that the injury was present on the dead body of the deceased. Further, since the CCL was carrying a knife, there was an intention to inflict bodily injury, that is to say, it was not accidental or unintentional. It has also been proved by PW-10 Dr. B.N. Mishra that the injury no.1 was sufficient to cause death in the ordinary course of nature. In the given circumstances, there is no doubt that an offence of murder has been committed attracting clause (3) of Section 300 IPC.

The prosecution has also succeeded in proving the motive. An incident had taken place on 30.01.2021 i.e. the day prior to the actual stabbing incident, when PW-3 Vinod Kumar Jha and deceased Manoj Kumar Jha had told the Appellant and his associate i.e. CCL not to consume drugs in the vacant plot where they would park their vehicles. There is also cogent evidence in the form of testimonies of PW-2, PW-3 and CCTV footage to show that the Appellant along with the CCL had come on the next day i.e. 31.01.2021 at about 8.00-8.30 pm, when the incident of stabbing took place.

Though there is no eye-witness to the actual incident of stabbing, but the Appellant and the CCL were seen running after the incident of stabbing and they have been correctly identified by PW-2 Krishna Nand Jha and PW-3 Vinod Kumar Jha, during dock identification. In the absence of any explanation offered by the Appellant for his presence at the crime spot on the date of incident and further no explanation being offered as regard his conduct i.e. to run away at fast pace immediately after the incident, definitely points towards the involvement of the Appellant.

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.

The legal threshold for invoking Section 34 IPC has recently been reiterated by the Apex Court in Constable 907 Surendra Singh v. State of Uttarakhand, (2025) 5 SCC 433, wherein it was observed:

The legal position regarding the application of Section 34 IPC in such factual scenarios is well-settled. In the case of Shambhu Kuer v. State of Bihar, (1982) 1 SCC 486, the Supreme Court dealt with a situation where the Appellant had caught hold of the deceased and scuffled with him, while the co-accused, Mandip, took out a knife and commenced the assault. The Court held that from the mere fact that the Appellant caught hold of the deceased and scuffled with him while the co-accused inflicted the knife blows, it could not be inferred beyond reasonable doubt that the Appellant shared the intention to murder the deceased. The Court concluded that, at most, the Appellant was vicariously liable for an offence under Section 326 read with Section 34 of the Penal Code, 1860. Relevant extract from the said judgment is reproduced hereinbelow:

Similarly, in the case of Laxmanji and Another v. State of Gujarat, (2008) 17 SCC 48, the Supreme Court evaluated a factual scenario where the Appellants were unarmed and caught hold of the deceased, while the principal accused, armed with a “Rampuri” knife, inflicted fatal knife-blows. The Court categorically ruled that the unarmed Appellant could not be attributed any common intention to cause the murder of the deceased. The Court observed that while common intention can be formed in the course of the occurrence, if the participation of the accused in the crime is proved but the common intention to murder is absent, Section 34 cannot be invoked to sustain a conviction under Section 302.

The Supreme Court further cautioned against the mechanical spreading of vicarious liability in Viji and Another v. State of Karnataka, (2008) 15 SCC 786, where Accused no. 1 had merely caught hold of the deceased while the co-accused inflicted the lethal blows. Altering the conviction of Accused no.1 to Section 326 read with Section 34 IPC, the Court held:

(emphasis supplied)

In Darshan Singh and Anr. v. State, 2013 SCC OnLine Del 5047, the Division Bench of this Court also took a similar view. The Court was dealing with a case where the Appellants exhorted the main accused by shouting "bach ke na jaane pave" before the fatal stab was dealt by the main accused. Despite such overt act, this Court ruled out the application of Section 302 read with Section 34 IPC and altered the conviction of Appellants therein to Section 326 read with Section 34 IPC, observing as under:

The principle that emerges from these decisions is that even physical participation in the assault does not by itself establish a common intention to murder where the fatal blow is dealt by a co-accused with a weapon. Before attributing common intention, the Court must look at the weapon used, the overt acts attributed and the other circumstances of the incident. In each of the above cases, the accused had at least exhorted or caught hold of the deceased, but despite that they were not held vicariously liable for the offence under section 302 IPC, instead they were convicted under section 326 read with section 34 IPC. Similarly, even in the present case, the evidence is completely lacking to attribute any overt act to the Appellant. The case for attributing a common intention to murder is therefore even weaker.

Reference may also be had to the decision of the Supreme Court in Shri Kishan & Ors. v. State of U.P., (1972) 2 SCC 537. In the said case, four accused persons had inflicted injuries to the deceased. Apart from the one injury on the head, which proved fatal, the other injuries were not of a very serious nature. The injuries suffered by another injured person were simple in nature. It was not clear from the prosecution evidence as to which one of the accused-appellants inflicted the fatal blow on the head of the deceased. In this factual backdrop, the Hon’ble Supreme Court held that the finding of the High Court in the circumstances go to show that the common intention of the accused was to cause grievance injury to the victim. The fact that one of them exceeded his bounds and gave a fatal blow on the head of the deceased would make him personally liable for the fatal injury, but so far as the other three are concerned, they can be held liable only for the injury which was caused in furtherance of the common intention and not for the fatal injury.

Further, it was concluded that as it is not possible from the material on record to find out as to which one of the accused gave the fatal blow, each one of the four accused were held guilty of the offence under Section 325 IPC and were sentenced to undergo rigorous imprisonment for a period of five years. The relevant extract from the said decision reads thus:

In the present case as well, the evidence is completely lacking as to who gave the fatal blow.

As per the case of the prosecution in the charge-sheet, the knife was seen by the PWs in the hands of the CCL. The recovery of the said knife was also effected from the CCL during his personal search. In the absence of any eye-witness to the actual incident of stabbing, and on the basis of the evidence on record, no finding can be recorded that the stab injury i.e. injury no. 1 which proved to be fatal was inflicted by the Appellant nor there is any evidence on record to show any overt act like holding of hands of the deceased by the Appellant, when the fatal injury was inflicted.

Even PW-3 Vinod Kumar Jha in his testimony has only stated to the effect that on 30.01.2021 when the deceased had asked the accused persons not to consume drugs in the vacant plot, they had simply left. In his testimony, he does not speak about any threat to kill the deceased having been extended by the Appellant wherefrom it could be inferred that the Appellant shared a common intention to cause his death.

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, therefore, it is also difficult to infer from the evidence that the Appellant shared a common intention to cause the death of deceased Manoj Kumar Jha.

However, the fact remains that the Appellant accompanied the CCL, who seems to be carrying a knife in his hand, which definitely establishes that the Appellant shared a common intention of causing grievous hurt by dangerous weapon to Manoj Kumar Jha deceased. The Appellant could, therefore, be held vicariously liable only for an offence under Section 326 read with Section 34 IPC, and not under Section 302 read with Section 34 IPC.

The Trial Court, while passing the impugned judgment, however, erred in concluding that the facts established by the prosecution left no hypotheses other than that the Appellant shared a common intention to kill the deceased, Manoj Kumar Jha.

We, accordingly, modify the impugned judgment to the extent it convicts the Appellant under Section 302 read with Section 34 IPC, and convict the Appellant for the offence under Section 326 read with Section 34 IPC.

The conviction of the Appellant under Section 201 IPC read with Section 34 IPC is upheld, as the prosecution has successfully proved through the testimonies of PW-22, PW-23, and PW-24 that the Appellant burnt his upper clothes to cause the disappearance of evidence and to screen himself from legal punishment. The sentence of 3 years imprisonment and fine of Rs. 1,000/- for the offence under Section 201/34 IPC shall remain undisturbed.

A perusal of the Nominal Roll reveals that the Appellant has undergone an actual period of detention of 5 years and 8 months (approx.). Thus, the sentence awarded for offence under Section 201/34 IPC, which was directed to run concurrently, has already been served by the Appellant.

For the conviction under Section 326 read with Section 34 IPC, the sentence for the period already undergone, according to us, will serve the ends of justice. Ordered accordingly.

The appeal is, therefore, partly allowed to the extent indicated above. The pending applications, if any, also stand disposed of.

The Appellant shall be released forthwith, if not required in any other case.

A copy of this judgment be transmitted to the concerned Jail Superintendent for necessary information and immediate compliance.

Order to be uploaded on the website of this Court forthwith.