ORDER

1. The appellant herein and one Kaka Singh faced trial before the Additional Sessions Judge, Patiala for murdering one Dildar Singh on the evening of 18-10-1990. Kaka Singh was held guilty of the offence under h Section 302 IPC and. the special leave petition filed by him in this Court was dismissed. We are told that Kaka Singh had served out the sentence. As far as the present appellant is concerned he was convicted under Sections 302/34 IPC. On appeal to the High Court the conviction of both the accused was affirmed.

2. According to the prosecution case, on the crucial date which happened to be a Diwali day, the deceased Dildar Singh together with his brother Dilbagh Singh (PW 2) and his son Tejinder Singh (PW 3 aged 11 years) were returning from the fields after lighting the earthern lamps at the tubewell at about 7 p.m. When they reached the spot near the village school, the appellant Paramjit Singh and the accused Kaka Singh were present there. The b appellant Kaka Singh being an Amritdhari Sikh was carrying a small kirpan. It is the case of the prosecution that about a year back the appellant was beaten up by Dildar Singh and others and a Panchayat was held at the village in connection with that incident and the matter was compromised. With this background of strained relations between the appellant and the deceased, the appellant instigated Kaka Singh not to allow Dildar Singh to escape. C Immediately thereafter, Kaka Singh took out the kirpan and inflicted injuries on the chest and the left arm of the deceased. By the time the deceased was carried to the hospital he succumbed to injuries. It is not necessary to go into the details of the investigation and the post-mortem as nothing turns out on that. The fact that Dildar Singh died on account of stab injuries on vital parts caused by Kaka Singh is not in dispute. The first information report was recorded at 10.15 p.m. on 18-10-1990 pursuant to the statement given by Dilbagh Singh (PW 2), the brother of the deceased. Dilbagh Singh and Tejinder Singh were examined as eyewitnesses.

3. The occurrence of the incident and the presence of the appellant in the company of Kaka Singh at the scene of offence has been established beyond doubt. In fact no serious attempt has been made to dislodge the findings of the trial court as affirmed by the High Court in this regard. The limited question that has been focused before us is whether on the facts established in this case, the appellant can be said to have shared common intention with the actual assailant to put an end to the life of Dildar Singh. It is seen from the evidence that the appellant was unarmed and even the other accused Kaka Singh did not carry any weapon other than the kirpan which he was having with him according to the tradition. The only evidence on the part played by the appellant -accused is the exhortation made by him not to allow the deceased to go away. There was no exhortation to kill or there is no other overt act attributed to him which can possibly lead to the reasonable inference that the appellant was keen that Kaka Singh should deal a fatal blow on Dildar Singh. In this fact situation as disclosed by the evidence of the eyewitnesses themselves, it is difficult to come to the conclusion that the appellant intended to kill the deceased taking the aid of Kaka Singh. The necessary nexus between the exhortation attributed to the appellant and the act done by the main accused is not, in our opinion, established. At any rate, there is a considerable doubt whether the appellant entertained such intention pursuant to an incident that took place one year earlier, that too when it ended in a compromise. At the same time the conduct of the appellant in exhorting Kaka Singh not to allow him to escape and in not stopping the accused Kaka Singh from attacking with knife more than once would unmistakably indicate that by his exhortation, the appellant wanted his companion Kaka Singh to cause harm to the deceased