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CASE NO.: Appeal (crl.) 432 1999

PETITIONER: PIPAL SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT:       12/12/2000

BENCH: S.R.Babu, D.P.Mohapatro

JUDGMENT:

RAJENDRA BABU, J.: L.....I.........T.......T.......T.......T.......T.......T..J

     Pipal  Singh, appellant in Criminal Appeal No.  432 of 1999  and  Mukhtiar Singh, appellant in Criminal Appeal  No. 433  of  1999,  were accused along with several  others  for having  caused  the  death of Sardara Ram  and  injuries  to Sukhdev  Raj  when they were entering their own  land.   The learned  Sessions Judge sentenced the appellants along  with certain  others  to undergo life imprisonment and to  pay  a fine of Rs.  5000/- each or in default of payment of fine to further  undergo  rigorous imprisonment for one  year  under Section  302  IPC  read with Section 34 IPC for  murder  and further  sentence  to undergo rigorous imprisonment for  six months  for  simple  hurt under Section 323  IPC  read  with Section  34 IPC and both the sentences to run  concurrently. On  appeal  the High Court reappraised the evidence  adduced before  the trial court and came to the conclusion that  the appellants  had  a common cause and had come  together  duly armed  at  a place which was in possession of  the  deceased with  the common intention to commit the crime and they left the  scene  of  the  occurrence  also  together  with  their respective  weapons.   The  High   Court  recorded  the  two injuries  found on the dead body of the deceased, viz.,  (i) T-shaped incised wound 15 cms x 2 cms by 10 x 2 cms on right parietal  region, underlying bone, scalp and brain were cut, and  (ii) incised wound 5 x 1.5 cms, 5 cms behind injury No. 1  and  that injury No.  (ii) was bone deep and  the  doctor opined  that  injuries Nos.  (i) and (ii) were fatal in  the ordinary  course  of nature.  The evidence put forth  before the  court  was  that  while Pipal Singh  caused  the  first injury,  injury  No.   2  was said to have  been  caused  by Mukhtiar Singh.  That evidence had been believed by the High Court.

     The  learned counsel for the appellants put forth  two contentions,  namely,  (1) the effect of acquittal of  other accused  in the case on sentencing accused under Section 302 IPC  by  involving  Section 34 IPC, and (2) as  regards  the offence stated to have been committed by each of them.

     Even  where some out of several accused are  acquitted

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it  is  open  to  the court to  consider  whether  remaining accused  were  guilty of an offence by involving Section  34 IPC  by  reason of having committed the offence  along  with others  acquitted.   With  a view to  determine  the  common intention,  the  nature  of   injuries,  background  of  the incident and the nature of weapon used to cause the injuries besides other factors are needed to be considered.  There is no principle in law which prevents from adopting that course set  out  above by us.  In the circumstances arising in  the case  the  High  Court has done the  necessary  exercise  in finding out whether the accused needed to be convicted under Section  302  IPC  read  with Section 34 IPC.   We  find  no infirmity in the same.

     So  far as the evidence alleged against the accused is concerned  and  the manner in which they have committed  the same,  it is clear that Section 304 Part II would not  arise as  rightly  held  by  the High Court.  So  neither  of  the contentions raised by the learned counsel for the appellants can survive close scrutiny and stand rejected.

     The appeals are dismissed.