It is entirely in the fitness of things and so also perfectly in order that the Delhi High Court while fastening liability even on those who merely stand on guard or omit to act when someone else commits an offence, the Delhi High Court in a most learned, laudable, landmark, logical and latest judgment titled Ashok Babu vs State Govt of NCT of Delhi in CRL.A. 141/2024 & CRL.A. 143/2024 and cited in Neutral Citation No.: 2025:DHC:7506 that was reserved on 28.08.2025 and then finally pronounced on 29.08.2025 has minced absolutely just no words to hold in no uncertain terms that merely standing guard or omitting to act when someone else commits an offence in furtherance of their common intention would be sufficient to attract liability under Section 34 IPC. It must be noted that while adding a caveat, the Bench also made it absolutely clear that, “However, the common intention, as well as some participation, both need to be proved.” What also must be borne in mind is that the Delhi High Court allowed the appeal and the appellants were acquitted because the prosecution miserably failed to prove the existence of a common intention to cause grievous hurt to the complainant and moreover they failed to detail any act, overt or covert, which helped in furtherance of any such common intention, even if it is presumed to have existed as was also pointed out so brilliantly by the High Court!
At the very outset, this robust, rational, remarkable, reassuring and recent judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Manoj Kumar Ohri of Delhi High Court sets the ball in motion by first and foremost putting forth in para 1 that, “By way of present appeals, the appellants seek to assail the judgement of conviction dated 17.10.2023 and order on sentence dated 18.01.2024 in Session Case No.110/2019 arising out of FIR No. 301/2016 registered under Sections 323/341/506/34 IPC at P.S. Karawal Nagar, Delhi. Vide the impugned judgement, appellants stand convicted for the offence punishable under Sections 325/34 IPC and vide order on sentence, the appellants were sentenced to undergo RI for 6 months with fine of Rs.20,000/- each, and in default of payment of fine to further undergo SI for 3 months. Benefit of Section 428 Cr.P.C. was given to the appellants.”
To put things in perspective, the Bench while elaborating on the facts of the case envisages in para 2 stating that, “The underlying facts leading to the registration of above FIR (Ex.PW2/A) noted by the Trial Court are as under: –
“The story of the prosecution, in brief, is that on 31.08.2016 at about 11:30 PM near Hanuman Mandir, Shiv Vihar Tirah, Delhi, while Munni Devi wife of Bhoop Ram was sitting on her cart for selling fruit. Rahul, Poti Ram, Ashok Babu, Sachin and V’ (juvenile), who used to put their fruits cart nearby started quarreling with Munni Devi. In the meanwhile, Bhoop Ram also reached there and they started quarreling with him and gave beating to him. During quarrel ‘V’ (juvenile) hit on the head of Bhoop Ram with a danda due to which he started bleeding from his head. The accused persons also attacked on his body with some pointed object. They extended threats to kill him. His sister Premwati also arrived there and she also started quarreling with him. Bhup Ram went to GTB hospital along with his son-in-law Ram.””
As it turned out, the Division Bench enunciates in para 3 laying bare that, “On completion of investigation, charges were framed. In the trial, the prosecution examined 5 witnesses. The complainant Bhup Ram was examined as PW1, Dr. Sandeep Kumar who proved the MLC was examined as PW4, ASI Radhey Shyam, the IO, deposed as PW5. Rest of the witnesses were formal in nature and deposed as to various aspects of investigation. Appellants in their statement under Section 313 Cr.P.C., took the defence of false implication because the complainant had taken money from the appellant/Ashok’s wife, which he was not returning. In defence, they examined 2 witnesses; Rohtash Singh who was an eyewitness to the incident as DW1 and Premwati, wife of the appellant/Ashok who happened to be sister of the complainant as DW2. During the pendency of trial, the proceedings were abated for co-accused Sachin and Poti Ram on account of their death.”
As we see, the Bench points out in para 6 that, “A perusal of the complainant’s testimony reveals that on 31.08.2016, at about 11.30 PM, the appellants alongwith other accused persons including one JCL, were quarrelling with his wife who was present on a fruit rehri. When the complainant reached there, the JCL inflicted danda blow on his head. He further deposed that one of the other four accused persons inflicted injury with pointed edge weapon. In his cross-examination, he admitted that he could not tell who inflicted injuries on him with the pointed edge weapon.”
Do note, the Bench notes in para 7 that, “The IO, ASI Radhey Shyam was examined as PW5. He stated that on 31.08.2016, upon DD No.77-B being marked to him, he reached the spot where no one was found and it was revealed that injured had gone to hospital. He met the complainant in the hospital on 01.09.2016, however the complainant refused to make the statement. Rather, he came to the police station on 02.09.2016 and then gave his statement (Ex.PW1/A). In his cross examination, he stated that at the spot neither any weapon of offence was found nor was any blood noticed. Though he stated that the incident had taken place at a public place, and that 5-10 people were present at the spot when he reached there from whom he had enquired about the incident, however, he did not note their names and addresses. Indisputably, no public witness has been cited.”
Most significantly, the Bench encapsulates in para 12 what constitutes the cornerstone of this notable judgment postulating precisely that, “Every person charged for an offence by invoking Section 34 IPC must participate in some form or other in the offence to make him liable. Giving the actual blow or even physical presence on the spot is not necessary. Merely standing guard or omitting to act when someone else commits an offence in furtherance of their common intention would be sufficient to attract liability under Section 34 IPC. However, the common intention, as well as some participation, both need to be proved. Reference in this regard may be made to the recent decision of the Supreme Court in Vasant v. State of Karnataka, 2025 SCC OnLine SC 337 wherein it was held as under: –
“75. It is, therefore, evident that every person charged with the aid of Section 34, must in some form or the other participate in the offence in order to make him liable thereunder…
76. The element of participation in the commission of the offence is the chief feature that distinguishes Section 34, IPC from Section 149, IPC and other kindred sections.
86. It is true that to convict any particular accused constructively under Section 34 of an offence, say of murder, it is not necessary to find that he actually struck the fatal blow, or any blow, but there must be clear evidence of some action or conduct on his part to show that he shared in the common intention of committing murder”, (pp. 457- 458).
87. The net result of the above discussion is that although Section 34 deals with a criminal act which is joint and an intention which is common, it cannot be said that it completely ignores or eliminates the element of personal contribution of the individual offender in both these respects.
88. On the other hand, it is a condition precedent of Section 34, IPC, that the individual offender must have participated in the offence in both these respects. He must have done something, however slight, or conduct himself in some manner, however nebulous whether by doing an act or by omitting to do an act so as to indicate that he was a participant in the offence and a guilty associate in it. He must also be individually a party to an intention which he must share in common with others.””
It is worth noting that the Bench notes in para 13 that, “Coming to the facts of the present case, the complainant deposed that all the accused persons including the appellants were quarreling with his wife, and when he intervened, they quarreled with him. He categorically states that the JCL inflicted the danda blow on his head and one person out of the four accused he named, inflicted injuries with a pointed edge weapon but he could not identify who that was. He has failed to attribute any act, overt or covert, to the appellants. It is not stated that they marched together, or that they were armed with weapons, or they were the ones who inflicted injuries with the danda or the pointed edge weapon. It is not even stated that they stood guard and prevented others from helping the complainant. The only common act the complainant had attributed to them is of quarrelling, but that does not by itself clothe them with the common intention of causing grievous hurt to the complainant. Quarrelling can be verbal as well, and in absence of any specific act being attributed to the appellants by the complainant, it was for the prosecution to bring forth other evidence or witnesses to fulfill the ingredients of the offence. The appellant’s presence at the spot was natural. Despite the incident taking place at a public place, no eyewitnesses were examined. The IO, PW5 had stated that when he reached the spot, he was informed that the complainant was taken to the hospital, and that there were around 5-10 people present on the spot. None of their statements were taken. Even the wife of the complainant, the quarrel with whom was the stated genesis of the incident, was not examined in trial. The incident occurred on 31.08.2016, the complainant was given on 02.09.2016 and the appellants were arrested on 03.09.2016. No weapon was recovered from them.”
It would be instructive to note that the Bench then hastens to add in para 14 noting that, “On the contrary, the defence produced DW1 and DW2, both of whom stated that they were present at the spot. Their stand was that an altercation had taken place between DW2 and the complainant, who are siblings, over the complainant borrowing some money from DW2 and not returning it. Their case was that the complainant slipped and fell, which caused his injury. DW2 further deposed that an FIR No. 270/2017, was registered at PS Karawal Nagar under section 323/354/506/34 IPC at her behest. As noted above, the appellants Ashok and Rahul are the brother-in-law and nephew of the complainant respectively, with Ashok being married to DW2/Premwati.”
Above all, it cannot be lost sight of that the Bench points out in para 15 that, “An overall view of the facts and circumstances reveals that the prosecution has miserably failed to prove the existence of a common intention to cause grievous hurt to the complainant and moreover they failed to detail any act, overt or covert, which helped in furtherance of any such common intention, even if it is presumed to have existed. The complainant further did not allege that the appellant had shared a common intent or that any exhortation was given by him before the JCL hit with the danda. In view of the above, Section 34 could not have been invoked to secure a conviction under Section 325 of the IPC. Resultantly, their conviction under sections 325/34 IPC cannot be sustained and therefore, the appellants are acquitted for the commission of said offences.”
As a corollary, the Bench then holds in para 16 that, “The appeals are allowed.”
What’s more, the Bench then directs and holds in para 17 that, “Since the sentence of the appellants was suspended vide order dated 14.02.2024, their bail bonds are cancelled and sureties stand discharged.”
Finally, the Bench then concludes by directing and holding in para 18 that, “A copy of this judgment be communicated to the concerned Trial Court as well as to the concerned Jail Superintendent.”
Sanjeev Sirohi