Waryam Singh vs The State

D.S. Tewatia, J.—Fox the murder of one Pritam Singh, aged 60 years, resident of village Kheri in district Ropar, and for causing grievous and simple injuries to his son Jagjit Singh, aged 23 years, three persons, namely, Waryam Singh, his brother Bakhtawar Singh, aged 65 and 70 years respectively, and the latter''s son Bachan Singh, aged 30 years, all residents of the same village Kheri, were tried. The trial Court, vide its judgment, dated 31st March 1970 acquitted Bachan Singh and his father Bakhtawar Singh accused, but convicted Waryam Singh under sections 302, 326 and 324, Indian Penal Code, and sentenced him to life imprisonment u/s 302, to seven years'' rigorous imprisonment and a fine of 1,000/- and in default thereof to further rigorous imprisonment for two years u/s 326, Indian Penal Code, and to two years'' rigorous imprisonment u/s 324, Indian Penal Code. The sentences of imprisonment awarded under sections 324 and 326, Indian Penal Code, were ordered to run concurrently with the imprisonment for life awarded u/s 302, Indian Penal Code.

The prosecution case, in brief, is that on 17th April, 1969 Jagjit Singh P.W. 4, his father Pritam Singh deceased and his uncle Sardara Singh P.W. 6 were working in their field known as ''Ujalwala'' at about 5-30 p.m., when two cows, two buffaloes, two Kattis and one goat belonging to the accused entered the sugarcane field of the complainants. The deceased and his two other aforesaid companions, when taking the aforesaid cattle to the cattle pond having reached the Cho, were joined in by Mehman Singh P.W. 5. At that time, Jagjit Singh P.W. 4 was carrying a Kulhari in his hands, while Pritam Singh deceased and Sardara Singh P.W. were unarmed. When they were in the middle of the said Cho, Bachan Singh, his father Bakhtawar Singh and, later on, the latter''s brother Waryam Singh, all armed with Kul-haris, came from the side of their Bara and shouted to teach the complainants a lesson for taking the accused''s cattle to the cattle pond and thereafter Waryam Singh opened the attack from the sharp side of his Kulhari hitting Jagjit Singh on his right hand. Bachan Singh and Waryam Singh also gave injuries to Jagjit Singh. Pritam Singh, who raised the Raula ''Mar Ditta, Mar Ditta'' attracted the wrath of the accused. Bachan Singh accused inflicted two Kulhari blows on the head of the deceased. Thereafter, Waryam Singh too inflicted an injury on the head of the deceased. Thereupon, the deceased fell down. The accused inflicted further injuries on his person when he was still lying down. The deceased became unconscious. Jagjit Singh P.W. 4 then wielded his Kulhari in self-defence and caused a few injuries to Waryam Singh accused. Thereafter, the accused went away from the plate of occurrence carrying their weapons with them.

The occurrence was witnessed by Sardara Singh and Mehman Singh also, Phuman Singh and Daulat Singh, who arrived immediately after the occurrence, were given an eye-witness account of the occurrence by Jagjit Singh. Daulat Singh brought a Gadda (bullock-cart) and he, along with Jagjit Singh and Mehman Singh, took Pritam Singh to the Civil Hospital at Ropar, where they reached at about 9-30 P.M. Both Pritam Singh and Jagjit Singh were medically examined there.

S.I. Mewa Singh P.W. 20, who went to the Civil Hospital, recorded the statement of Jagjit Singh, Exhibit P.A., at 1-15 A. M. on 18th April, 1969, on the basis of which formal F.I.R., Exhibit P.A. 1, was recorded in the police-station at 2 P.M. on the same day (18th April, 1969).

Dr. Kehar Singh P.W. 18, who examined Pritam Singh, referred him to the Post-graduate Medical Institute at Chandigarh, where he was operated upon by Dr. Gulati on the same day. However, he expired in the P.G.I. on 21st June, 1969 at 12-45 P.M.

Dr. Kehar Singh P.W. 18, who examined Pritam Singh, found six incised and two contused wounds on his person. The doctor opined that injury No. 1 was grievous and dangerous and injury No. 5 was grievous. The rest of the injuries were simple in nature. Out of the eight injuries, six were caused by a sharp-edged weapon and two by a blunt weapon. The duration of all the injuries were given as ''fresh''.

Dr. Kehar Singh PW18 also examined Jagjit Singh PW4 on 17th April 1969 and found three incised and one contused wounds on his person. Injury No. 3, which was kept under observation, was later on declared as simple. Injury No. 1 was opined to be grievous and injuries Nos. 2 and 4 simple. Injuries Nos. 1, 2 and 4 were stated to have been caused by a sharp edged weapon and injury No. 3 by a blunt weapon. All the injuries were stated to be ''fresh''.

Dr. Kehar Singh PW18 also examined, on police request. Exhibit P.N., Waryam Singh accused on 21st April 1969 at 11 a.m. and found on his person three contusions and two abrasions, as also tenderness on the right lower axillary and scapular region 2" x 2". Injuries Nos. 1 to 3, 5 and 6 were declared simple. Injury No. 4, which was kept under observation, was later on declared as grievous. All the injuries were caused by blunt weapon and the probable duration was given as ''4 days''. The doctor further opined that injuries No. 5 and 6 on the person of Waryam Singh accused could be self inflicted, injury No. 1 could be caused by striking against a bard substance and the rest could be caused with a Lathi blow and injury No. 3 could be caused with a Lathi or a fist blow.

In the meantime, Dr. Manmohan Goel PW3, Casuality Medical Officer, General Hospital, Chandigarh, who performed the post-mortem examination on the dead body of Pritam Singh on 21st June 1969 at 5-30 p.m., found the following injuries on his person:-

There was linear scar 6" on the scalp. 2.1" x 1" circular hole (wound) or right temporal region. Maninges was seen through the wound. There was fracture of parietal bone on right side.

Death, in the opinion of the doctor, resulted from haemorrhage in brain due to the head injury and the probable duration between injury and death was given as ''about 2 months and 3 days'' and that between death and the post-mortem as ''about 4 hours''.

After the completion of the investigation, the police challaned all the accused who later on were committed to stand their trial in the Court of Session at Ropar.

The prosecution, in support of its case, examined as many as twenty witnesses, including the doctors and the eye-witnesses, and also placed on the record the affidavits of Constables Amrik Singh PW12, Kehar Singh PW13, Baldev Krishan PW14, Maluk Chand PW15, Arjan Singh PW17 and Moharrir Head Constable Gurdev Singh PW16.

The trial Court, while believing the prosecution story, convicted and sentenced Waryam Singh vide its judgment, dated 31st March 1970, but acquitted Bachan Singh and Bakhtawar Singh after giving them the benefit of doubt. Hence the present appeal at the instance of Waryam Singh accused alone.

Mr. Har Parshad, Learned Counsel for the appellant, has urged that the conviction of the appellant u/s 302, Indian Penal Code, simpliciter, cannot be sustained in law. He has further urged that the sole testimony of P.W. 4, the eye-witness, is tainted and cannot be considered sufficient for grounding the conviction of the appellant.

Learned Counsel for the State, on the contrary, has maintained that the testimony of the two eye-witnesses, namely, Mehman Singh and Sardara Singh, is trustworthy and the same has been disbelieved by the trial Court for untenable reasons. Regarding the conviction of the appellant u/s 302, Indian Penal Code, the Learned Counsel for the State has asserted that the conviction of the appellant u/s 302, Indian Penal Code, can be maintained with the aid of section 34, Indian Penal Code.

After hearing the Learned Counsel on both sides, I am of the opinion that there is no merit in this appeal which should fail.

It may be stated at the outset that, in my opinion, the conviction of the appellant u/s 302, Indian Penal Code, simpliciter, cannot be maintained because the two injuries, one of which proved fatal and the other grievous, on the person of the deceased, have been attributed by the prosecution witnesses to Bachan Singh (since acquitted). Not only this, even the charge against the appellant was u/s 302, read with section 34, Indian Penal Code, and u/s 342, Criminal Procedure Code, the case put to him was that Bachan Singh gave the fatal blow and inflicted the grievous injury, while he (the appellant), with a common intention to kill the deceased, inflicted injuries to the deceased, which happened to be simple in nature. The defence taken up by the appellant in his statement u/s 342, Criminal Procedure Code, was that none of his other two co-accused was present, that he alone was present and he, in the right of self-defence, gave injuries to the deceased while the fatal blow intended by Jagjit Singh P.W. 4 against the appellant by accident fell on the head of the deceased which killed the latter.

It may be stated here that a person can be found guilty of an offence either on the basis of the prosecution evidence or on the basis of his own admission. In the present case, the prosecution witnesses have positively stated that it was Bachan Singh who struck the fatal blow to the deceased and the appellant only inflicted simple injuries on the deceased.

As regards the appellant''s own admission in his statement u/s 342, Criminal Procedure Code, therein he too did not own up the giving of the fatal blow to the deceased and attributed it to the son of the deceased, Jagjit Singh P.W. 4. So neither on the material provided by the prosecution nor by the appellant in his statement u/s 342, Criminal Procedure Code, it can be held that the appellant gave the fatal blow to the deceased. Hence, he cannot be held guilty of the charge u/s 302, Indian Penal Code, simpliciter.

Now the question that falls for consideration is as to whether the conviction of the appellant u/s 302, Indian Penal Code, can be maintained with the aid of section 34, Indian Penal Code. To counter this approach, the Learned Counsel for the appellant has raised the following two contentions.

(1) that the appellant was acquitted u/s 302, read with section 34, Indian Penal Code, by the trial court and be cannot be again convicted of the same charge; and

(2) that the appellant cannot be convicted u/s 302, read with section 34, Indian Penal Code, unless a finding can be given that he shared the common intention to commit the murder along with Bachan Singh and Bakhtawar Singh or some unknown persons. Since the latter two have been acquitted, the effect of which, according to their Lordships of the Supreme Court in Krishna Govind Patil Vs. State of Maharashtra, is that the acquitted person did not participate in the occurrence and there being no alternative charge nor any evidence on the record to the effect that the appellant shared the common intention to commit the murder with some unknown persons, the appellant cannot be held to have shared the common intention to commit the murder with his aforesaid acquitted co-accused.

As regards the first contention of the Learned Counsel for the appellant, I find myself unable to agree with him. This point came up for consideration before a Division Bench of this Court (Sandhawalia and Dhillon, JJ.) in Birbal v. State 2 Criminal Appeal No. 1006 of 1968, decided on 24th May 1971. That appeal first came up for hearing before my learned brother Sandhawalia, J., and he referred the point of law to the larger Bench. The point of law formulated by him was-

Is an appellate Court whilst entertaining an appeal against conviction u/s 423(1)(b) of the Code of Criminal Procedure entitled to apply the provisions of section 34, Indian Penal Code, where the trial Court has expressly held otherwise (though the accused person was charged with substantive offence read with section 34, Indian Penal Code) and the State has not moved by way of appeal against such a finding.

My learned brother Sandhawalia, J., who spoke for the Bench, referred to two judgments of their Lordships of the Supreme Court in B.N. Srikantiah and Others Vs. The State of Mysore, and Jaikrishnadas Manohardas Desai and Another Vs. The State of Bombay, wherein it was held that section 34 is only a rule of evidence and does not create a substantive offence; it merely enunciates a principle of joint liability for criminal acts done in furtherance of the common intention of the offenders. And then observed-

Once it is held that section 34, Indian Penal Code, does not constitute a substantive offence, it seems to follow logically that there can be no such thing as an acquittal under this section.................. This being so, the hypothetical contention of reversing an acquittal u/s 34, Indian Penal Code, cannot possibly arise. If as their Lordships of the Supreme Court have categorically laid down that section 34, Indian Penal Code, is a rule of evidence one cannot imagine an acquittal under a rule of evidence. It appears axiomatic that a finding of acquittal is visualised only in the context of a charge for a substantive offence. As section 34, Indian Penal Code, does not constitute a substantive offence there possibly can follow no acquittal thereunder.

Finding myself in complete agreement with the view propounded by the Division Bench in the aforesaid decision, to which my learned brother Sandhawalia, J. was also a party, I repel the contention advanced by the Learned Counsel for the appellant and hold that the appellate Court, after altering the finding of the trial Court regarding the absence of common intention, can convict an accused with the aid of section 34, Indian Penal Code.

It is the second contention advanced by the Learned Counsel for the appellant which presents some difficulty, in that so long as the finding of the trial Court that the two acquitted accused did not participate in the occurrence stands, it will not be open to me to hold that the appellant shared a common intention along with Bachan Singh and Bakhtawar Singh (his two co accused) to commit the murder of the deceased.

So two questions that arise for consideration are:

(1) Can we reverse the finding of the trial Court on the aforesaid two points? and

(2) If the answer to the first question is in the affirmative, can we give effect to the said reversed findings?

As regards the first, it has been ruled by their Lordships of the Supreme Court in Sunder Singh and Others Vs. The State of Punjab, that-

Where more persons than one are prosecuted and one of them is acquitted and others are convicted, the order of acquittal cannot be set aside unless an appeal had been duly preferred in that behalf against the said order. But the provisions of section 423(1)(a) do not create a bar against the appellate Court considering indirectly and incidentally the case against the person who was acquitted if that becomes necessary when dealing with the case in appeal presented on behalf of the other accused who are convicted. In considering the evidence as a whole the appellate Court may come to the conclusion that the evidence against the person acquitted was also good and need not have been discarded.

As regards the second, the Learned Counsel for the appellant has maintained that their Lordships of the Supreme Court in Krishna Govind Patil''s case (supra) have ruled that the finding of acquittal carries with it the meaning that the acquitted person did not participate in the occurance. And if there is no appeal against acquittal, then, argues the Learned Counsel, it will be futile to reverse the finding of acquittal, as the same cannot be given effect to in the light of the law laid down by their Lordships in the aforesaid case. In that case, the facts were that four accused persons were charged u/s 302, read with section 34, Indian Penal Code, for committing the murder of certain persons in furtherance of their common intention. The charge as well as the evidence was only directed against the four named accused as the participants in the common intention to commit the murder. They were also individually charged for the substantive offence u/s 302, Indian Penal Code. The learned Sessions Judge acquitted all the accused. The State did not appeal against each of the accused persons of the charge u/s 302, Indian Penal Code, but preferred an appeal against all of them in relation to the charge u/s 302, read with section 34, Indian Penal Code. The High Court in appeal upheld the acquittal of the three of the accused persons, but convicted one of them of the offence u/s 302, read with section 34, Indian Penal Code.

The aforesaid facts would show that the accused in that case was convicted with the aid of section 34, Indian Penal Code, in spite of the finding on the record that all his co-accused were acquitted and there was no further finding that, that accused had the common intention with some unknown persons to commit the crime. I am not satisfied that this authority lays down the proposition that even if the appellate Court reverses the finding of the trial Court regarding the non-participation of the acquitted accused, which led to the acquittal of that accused by it, the High Court cannot convict the only accused before it with the aid of section 34, Indian Penal Code. This question (in addition to another in this clear form (reported below) came up for consideration before a Full Bench of the Allahabad High Court in Gulab Vs. State, ,-

Whether in such a case it is open to the appellate Court to find, there being no Government appeal against the acquittal of such acquitted persons, that, although it cannot interfere with such acquittal, such persons or some of them had been wrongly acquitted and had in fact taken (sic) in the commission of the alleged act in association with the appellant and on this ground hold that the appellant was rightly convicted?

Sankar Saran, J., after noticing a catena of rulings, answered the aforesaid question as follows:-

It would thus appear that there is nothing to bar the Court from holding that the acquittal of some of the accused persons was wrong and that they or some of them had taken part in the crime in association with the appellant and that, therefore, the conviction of the appellant was correct.

Harish Chandra, J., while concurring in the view of his learned colleague Sankar Saran, J., observed thus:-

No doubt, and order of acquittal cannot be reversed except in an appeal from such order. But an appellate Court has fall liberty to maintain a conviction on grounds other than those upon which the conviction was based by the Court below and in doing so to alter its findings, if necessary, with respect to the other accused persons who may have been acquitted by it and to hold that the appellant who could not have been convicted except on a finding that he was associated with certain other persons in the commission of the crime had been rightly convicted.

Their Lordships of the Supreme Court, while considering the aforesaid decision of the Allahabad High Court in Gulab''s case (supra), left the question open as to whether the appellate Court, after reversing the finding of the trial Court, can convict the appellant of an offence with the aid of section 34, Indian Penal Code.

A Division Bench of the Gujarat High Court in Bhurabhai Mugarbhai v. The State of Gujarat ILR 1964 Guj 414, took, independently, without noticing the aforesaid decision of the Allahabad High Court in Gulab''s case, a similar view which it expressed in the following words:

An order of acquittal recorded against as acquittal person in such a case is only final in the sense that the order of acquittal against an acquitted accused cannot be disturbed in appeal by an appellate Court unless an appeal is preferred against an acquitted accused against the order of acquittal..................it is not legally impossible to found a conviction of a co-accused of an acquitted person on the basis that the acquitted person had participated in the crime if the High Court has not upheld the order of acquittal of the acquitted person..................... It will be open to an appellate Court in law to record a finding against a co-accused on the basis of the evidence which is rejected in relation to the acquittal person and to hold that the co-accused had committed the crime in conjunction with the acquitted person, though the Court would ordinarily be slow to record such a conclusion.

Miabhoy, J., while considering the impact of the decision of their Lordships of the Supreme Court in Krishna Govind Patil''s case (supra), made the following observations in Bhurabhai Mugarbhai''s case-

In our judgment, the aforesaid observations must be read in the context of the facts of that particular case and the principle for which Mr. Thakore contends cannot be extracted from the case unless the aforesaid passage is wrenched from the context in which the aforesaid observations were made.................. But a distinction must be made between the effect of the finding, on which finding the acquittal order is based, qua a person and its effect qua another person when the question is not what effect that finding has on the case of the acquitted person but on the case of a co-accused, which case is under consideration by not the same Court which records the acquittal order but by the appellate Court which has a duty to consider the whole record afresh and to reach its own conclusion untrammelled by the findings of the trial Court.................. In our judgment, when ''heir Lordships made the aforesaid observations, their Lordships were not lying down as to what was the effect of an order of acquittal when considering to evidence against the other accused persons. What their Lordships laid down was that if the Court acquits a person of a crime, then, that Court must give full effect to that acquittal and it should not convict his co-accused on the principle of vicarious liability if ultimately there is none with whom the co-accused could have shared the common intention...............

I find myself in respectful agreement with the view propounded in the aforesaid Full Bench decision of the Allahabad High Court (Gulab''s case), because once it is held that the appellate Court can reappreciate the whole evidence with a view to form an opinion of the criminal liability of the appellant before it, then the appellate Court cannot be denied to give effect to its finding so far as it concerns the appellant before it (the appellate Court) and so I hold that there is no merit in the second contention of the Learned Counsel for the appellant.

Now the question that survives for consideration is as to whether the findings of the trial Court are untenable and liable to be reversed.

The trial Court has discarded the testimony of Mehman Singh PW 5 for the following two reasons:

(1) that it cannot be imagined as to how the accused knew that the cattle were being driven to the cattle pond, and

(2) that it can further be not imagined as to how Bachan Singh (the co-accused of the appellant) who had attacked Jagjit Singh P.W. 4, did not receive even a scratch on his person.

Both these reasons, I find, are untenable and it shows lack of imagination on the part of the trial Court itself. There is no evidence on the record, as wrongly assumed by the trial Court, that the cattle of the accused were, obviously, being driven by Jagjit Singh P.W. 4, Pritam Singh deceased and Sardara Singh P.W. 6 towards the village and the aforesaid unwarranted assumption, I notice, has coloured its approach throughout. On the contrary, I find, the evidence on the record is that the cattle were being driven by the complainant-party to the cattle pond and it was not only not improbable for the accused to have come to know of that fact, but it would have struck them as the only, and the obvious, intention on the part of the complainants.

As regards the second assumption of trial Court that it cannot be believed that, although Bachan Singh participated in the fight, yet he would not receive even a scratch on his person, it may be stated that here is a case in which three armed persons attacked the complainant-party, out of which only Jagjit Singh P.W. 4 was armed with a Kulhari, and Waryam Singh (the present appellant) opened the attack on Jagjit Singh P.W. 4. He, obviously, could reply to the attack of one person and while he was engaged in warding off the assault on himself from Waryam Singh, the other co-accused i.e. Bachan Singh and Bakhtawar Singh had a free hand to strike Jagjit Singh and his unarmed father with impunity and so it is axiomatic in the circumstances that they could escape without risking any injury to their person and on the basis of the evidence it just cannot be held that they could not have escaped injury in the event of their participation in the fight.

Mehman Singh P.W. 5''s testimony was doubted on yet another score that Sardara Singh P.W. contradicted Mehman Singh''s assertion that Sardara Singh P.W. 6 did not accompany him and Jagjit Singh P.W. 4 and Pritam Singh deceased to the civil hospital. I find this reasoning rather illogical, especially when the testimony of Sardara Singh himself has been rejected on the ground that, although he maintained in the committing Court that he accompanied Pritam Singh to the civil hospital, yet on that point he has been contradicted by Mehman Singh and Jagjit Singh P.Ws. The trial Court could, in my view, at best discard the testimony only of one of them and certainly not of both. I am further of the firm opinion that Mehman Singh P.W. 5 could not be found to be untruthful on this point, because his testimony stands corroborated on this point by Jagjit Singh P.W. 4 also, and on the ground of this contradiction, if at all, it is the testimony of Sardara Singh P.W. 6 which could be considered suspect, as in the trial Court it was he who tried to bring his statement in line with the statements of Mehman Singh and Jagjit Singh P.Ws.

The trial Court has disbelieved the testimony of Sardara Singh P.W. also on equally untenable grounds such as that he gave out the length of Darga constructed (abutment) as 6'' while Jagjit Singh P.W. maintained its length to be 12'' or that Sardara Singh''s right side was paralysed and he could not be of any help to his other companions in the construction of Danga. These points of criticism of his testimony appear to me to be rather flimsy. Sardara Singh gave the length of Danga approximately, as he had not measured it, and so did Jagjit Singh. It is true that Sardara Singh''s right side is paralysed, but when the two other companions of his were constructing the Danga, the evidence on the record is that he was helping in picking up stones and filling the baskets and there is no evidence that he was trying to put stones on the Danga itself. So the learned trial Court is not right in inferring from this infirmity of his that his presence at the site of the construction of abutment cannot be considered probable. To my mind, his presence at the site of the construction of abutment is most probable and natural despite his said infirmity.

As regards the further criticism of Sardara Singh P.W. ''s testimony by the trial Court on the ground of his having improved in the trail Court upon his statement made in the committing Court with a view to bring the same in line with the testimony of the other two eye-witnesses with regard in the fact of his not having accompanied the deceased to the Civil hospital, it is no doubt true that his statement in the trial Court is at variance with his statement made in the committing Court, but it will not be right to say that he consciously tried to bring his testimony in line with the testimony of the other prosecution witnesses because the other two witnesses in the committing Court did rot take up the stand that Sardara Singh did not accompany Pritam Singh deceased to the Civil hospital. They stated so far the first time in the trial Court and unless one holds that Sardara Singh got the wind of there statements in the trial Court, it cannot be held that he changed his stand in question with a view to bring his testimony in line with the testimony of the other two eye-witnesses. That he could be apprised of the statements of the other witnesses by someone cannot be ruled out, but the same cannot be presumed and so what appears to me is that this witness changed his statement in the trial Court perhaps out of confusion, which is evident from the explanation he offered, when he was confronted with that statement, that he did not remember if he so stated in the committing Court. Be that as it may, I do not consider it sufficient by itself to hold that his testimony is unreliable.

Hence I find that the testimony of both the aforesaid eye-witnesses has been discarded by the trial Court on grounds, being insufficient and untenable.

The learned trail Court acquitted the two co-accused of the appellant on the ground that the presence of the aforesaid two eye-witnesses is not established and, secondly, had they been present, they would have received injuries in the fight at the hands of Jagjit Singh P.W. 4 and since they did not receive even a scratch, so their presence has not been established at the time of the occurrence.

As already discussed in the earlier part of this judgment that this assumption of the learned trial Court regarding the absence of injury on the person of the acquitted accused and the inference, that it has drawn from the same, is not justified in the circumstances of this case. The trial Court felt strengthened in so inferring the absence of the co-accused of the appellant by its finding that the presence of Mehman Singh and Sardara Singh, the two eye-witnesses, is not established. But as already pointed out, even regarding the absence of the aforesaid two eye-witnesses, the findings of the trial Court are totally untenable.

There is one more significant fact which has to be kept in view that on the persons of the deceased and Jagjit Singh PW4 there are as many as 12 injuries, 9 incised and 3 contusions, and the implication of these injuries is that they have been inflicted by two types of weapons, blunt and sharp, which fact definitely involves more than one person. It is true that Waryam Singh claims to have been armed with a Kulhari which can be used from sharp as well as from the blunt sides. If we are to go by his statement, then he has stated that he gave only one injury from his Kulhari to Jagjit Singh on his arm and the other injuries remained unexplained. So the medical evidence is in consonance with the prosecution case that two persons (Bachan Singh and Bakhtawar Singh) were armed with sharp-edged weapons i.e. Kulharis, and Waryam Singh appellant was armed with a blunt weapon. In any case, Waryam Singh appellant, an old man of 65 years, could not have inflicted as many as 12 injuries to Pritam Singh deceased and Jagjit Singh PW 4 and it is not a case where, there being just two/three injuries on the person of the deceased, the prosecution has attempted to dole out by assigning an injury to each of the accused with a view to implicate them all. There are as many as nine injuries from sharp-edged weapons and, apparently, it seems to be the work of two persons i.e. Bachan Singh and Bakhtawar Singh. Hence, to our mind, there is sufficient evidence on the record to equally implicate the co-accused of the appellant in the crime and so I find that the co-accused of the appellant, namely, Bachan Singh and Bakhtawar Singh had been wrongly acquitted by the trial Court. On the record, there is sufficient material to show that all the three participated in the occurrence gave injuries to the deceased and that the injuries inflicted by Bachan Singh proved fatal. And that all the three shared the common intention to commit the murder of the deceased. Hence the appellant, in view of the provisions of section 34, Indian Penal Code, is guilty of the charge of murder of the deceased, although the fatal blow was not struck by him.

For the reasons stated above, I alter the conviction of the appellant from one u/s 302, Indian Penal Code, to one u/s 302, read with section 34, Indian Penal Code, and maintain the sentence awarded to him by the trial Court. His conviction and sentence under sections 326 and 324, Indian Penal Code, are maintained.

S.S. Sandhawalia, J.

I agree.