The intention of the accused is a crucial factor in determining the offense committed. In the absence of a common intention to commit murder, the accused cannot be convicted of murder under Section 302/34, Indian Penal Code.

Judgment

M. K. MUKHERJEE, J.

( 1 ) JAGTAR Singh and Harbans Singh, the appellants herein, along with their another brother Makhan Singh and father Bhura Singh were tried by an Additional Sessions Judge of Bhatinda for committing murder and other cognate offences in furtherance of their common intention. The trial ended in conviction of Harbans Singh under Section 302, Indian Penal Code, Jagtar Singh under Sections 307 and 326 Indian Penal Code, Makhan Singh under Section 324, Indian Penal Code and Bhura Singh under Section 323, Indian Penal Code (two counts ). Assailing their convictions they preferred an appeal before the High Court; and the respondent-State, in its turn, filed an appeal against the acquittal of Bhura Singh, Jagtar Singh and Makhan Singh of the charge of murder. One of the injured, namely, Nidharak Singh also filed a revision petition against the above acquittal. By a common judgment the High Court disposed of the appeals and the revision petition by upholding the convictions of the appellants as recorded by the trial Court, further convicting the appellant Jagtar Singh under Section 302/34, Indian Penal Code and Harbans Singh under Sections 307/34 and 326/34, Indian Penal Code and acquitting the other two accused persons. Hence this appeal.

( 2 ) THE prosecution case briefly stated is as follows : (A) In the morning of 3/09/1991 Naib Singh (the deceased) and his son Nachhattar Singh (P. W. 3) had gone to Jaitu Mandi for selling cattle. In that night, at or about 9. 00 p. m. , Nidharak Singh (P. W. 2) and his uncle Ajaib Singh (brother of Naib Singh) went to the house of Naib Singh, to enquire whether they had returned from the Mandi. Reaching there they found them standing outside their house. A little later, the four accused persons came there armed with deadly weapons and started assaulting them. Jagtar Singh first gave a blow on the head of Nachhattar Singh with a khapra, as a result of which he fell down. Bhura Singh then gave him a kassauli blow and Harbans Singh a gandasa blow on the left side of the head of Naib Singh, who also fell down. When Nidharak Singh and Ajaib Singh tried to separate them Jagtar Singh gave one khapra blow to Naib Singh near his left ankle and Bhura Singh gave a kassauli blow to Naib Singh on his left thigh. Then Makhan Singh gave a blow with a sela on his left ankle and another blow on his left thigh. When Ajaib Singh raised alarms the four accused persons ran away from the spot. The motive ascribed for the assault was a dispute between the parties over a khal (water course) for which proceedings under Section 107, Cr. P. C. were initiated against both of them. (B) Ajaib Singh and Gurdev Singh (another brother of Naib Singh) took the three injured to Primary Health Centre, Goniana in a tractor-trolley where Dr. P. C. Singal (P. W. 7) examined them; and then sent a Ruqa to Nahianwala Police Station. On receipt thereof A. S. I. Tarsem Chand (P. W. 5) came to the Health Centre and recorded the statement of Nidharak Singh (P. W. 2 ). On that statement a case was registered and investigation taken up. In the meantime Naib Singh had been forwarded to P. G. I. Hospital at Chandigarh for better treatment where he succumbed to his injuries on 10-10-1991. (C) On completion of investigation the Police submitted a charge-sheet against the four accused persons and in due course the case was committed to the Court of Session.

( 3 ) THE accused persons pleaded not guilty to the charges levelled against them and contended that they had been falsely implicated.

( 4 ) IN support of their respective cases the prosecution examined ten witnesses of whom P. Ws. 2 and 3 figured as eye-witnesses, and the defence two.

( 5 ) IN the context of the unimpeachable and unimpeached evidence adduced by the doctors to prove that Naib Singh met with a homicidal death and P. Ws. 2 and 3 sustained grievous injuries caused by instruments for cutting, the crucial question that fell for determination before the learne