Judgment

JUDGMENT:- The facts leading to the criminal appeal are shortly as follows:-

On April 24, 1976 at about 10 p.m., Hari Singh, Joginder Singh, Dara Singh and Daljit Singh alias Bir Singh went to the house of the deceased and Indeerjit Singh, P.W. 4. They started making noise, using abusive language. The deceased came out of the house and requested them not to use filthy language against him and P.W. 4. Immediately, thereafter, all these four accused went inside the premises let out to Han Singh and came out fully armed. Han Singh was armed with iron pipe, his son, Joginder, with Lathi while the other two, namely, Dara Singh and Daljit Singh alias Bir Singh were armed with Kirpan and Saria. They pounced on Gurbachan Singh, the deceased. Han Singh gave a blow on his head with iron pipe. On receipt of this blow, Gurbachan fell down on the street. Dara Singh gave a sword blow upon his right arm. Joginder gave a Lathi blow, Daljit gave a blow with iron rod on the left arm of the deceased. Ajit Singh, P.W. 2, son of the deceased went ahead to protect his father. At that time Hari Singh administered a blow on his head. Joginder Singh also gave a Lathi blow on his head Dara Singh gave him two blows With his Kirpan. He also fell down on the street and received further injuries at the hands of these four persons. P.W. 4. daughter of Gurbachan (Sarabjit Kaur), came forward to save her brother Ajit Singh, P.W. 2. She was given a sword blow by Dara Singh. Manjit Singh, Dalip Singh and Bansi Lal, who were living in the neighbourhood, came out their respective houses and witnessed the occurrence. After causing these in juries to the deceased as well as P.Ws. 2 and 3, the four persons, who are accused to 4, went away with their respective weapons.

2. P.W. l, the Medical Officer, examined Gurbachan Singh at about 11.15 p.m. He found four serious injuries on the person of the deceased. He was of the opinion that the three injuries could have been caused by a blunt weapon excepting the superficial skin deep incised wound on the right hand below wrist joint which could have been caused by a sharp edged weapon.

3. The defence was one of the denial. The learned Sessions Judge of Gurgaon vide judgment dated 23-4-1977 convicted all these accused Han Singh u/S. 302 while Joginder, Dara Singh and Bir Singh u/S. 302 read with 34 and accordingly sentenced them to undergo imprisonment for life. Further they were also charged for offence u/S. 324 read with S. 34 and were sentenced to undergo rigorous imprisonment for 6 months and for offence u/S. 323 read with 34, they were sentenced to undergo R.I. for two months. All these sentences were to run concurrently. Appeals were preferred on behalf of all the accused. The High Court in C. A. No. 708 of 1977 confirmed the conviction and sentence of Han Singh, Joginder Singh, Dara Singh while Daljit Singh (alias Bir Singh) was given the benefit of doubt. Accordingly, the appeal was allowed. A Special Leave Petition was preferred on behalf of all the three accused, namely, Han Singh, Joginder Singh and Dara Singh. This Court by order dated 6-3-1988 directed issue of notice in the case of Joginder Singh with regard to the nature of offence :and sentence. The special leave petition in respect of others was dismissed. Therefore, presently, we are concerned with the case relating to Joginder Singh.

4. The only question that arises for our consideration in order to sustain the sentence imposed on him by the learned Sessions Judge is to analyse the part played by him with regard to the nature of the offence and find out whether he had been sentenced properly.

5. As seen earlier this is a case in which Joginder Singh also stands charged u/S. 34. This is a vital point to be borne in mind because if Sec. 34 were to apply in this case then it does not matter as to what particular part he played. Therefore, our endeavour would be to find out whether there was a common intention.

6. It is one of the settled principles of law