The central legal point established in the judgment is the assessment of common intention in cases of assault and murder, and the influence of such assessment on the conviction and sentencing of the accused.

ORDER :

Prosecution was launched against Bhagmal and Bhup Singh alleging that at about 8 p.m. on June 25, 1995 when P.W.12-Raj Bir, P.W.13-Kaushalya and Prem Singh (deceased) were sitting in the out-house in village Beriyawas, Bhagmal and Bhup Singh armed with lathis attacked Prem Singh (deceased) on the pretext that he had abused them; that Prem Singh begged their excuse with folded hands but Bhagmal caught hold of Prem Singh and Bhup Singh gave a lathi blow on his head as a result of which Prem Singh fell down on the ground; that Bhagmal gave several fists blows and kicks on the person of the deceased; that in the meanwhile Nihal Singh and Kaushalya (P.W.13) rescued Prem Singh from the accused and he was carried to the hospital at Rewari and, thereafter, to another hospital at Rohtak but he succumbed to the injuries. Thereafter, a first information report was lodged with the police and on investigation of the case charge-sheet was filed for offences punishable under Section 302/34 and 452 Indian Penal Code.

2. The trial Court examined 14 witnesses and relied upon the eye witness account of Raj Bir (P.W.12) and Kaushalya (P.W.13) that the incident had taken place in the village at the time and in the manner indicated earlier and the defence theory that a fight had taken place between Dharam Pal and Rajbir on the one side and Prem Singh on the other side was not believed. Ultimately, the trial Court came to the conclusion that the two accused are guilty of an offence punishable under Section 325 read with Section 34 Indian Penal Code and imposed upon each of them rigorous imprisonment for a period of five years with fine of Rs. 15,000/-

3. Both the state and the accused filed appeals. The High Court on examination of the material found no merit in the appeal of the accused. The High Court, however, allowed the appeal of the state particularly after referring to the nature of injuries sustained by the deceased and came to the conclusion that it is not number of injuries that would matter but the manner in which the same had been inflicted. It was noticed that Bhup Singh had given a lathi blow on Prem Singh's head with great severity. Bhagmal had given fist and kick blows on the various parts of the body of Prem Singh which had been proved from the medical evidence and, further, found that the ferocity of the attack made by Bhup Singh is evident from the damage caused to the skull (injury No. 1). It was also noticed that there were multiple fractures on the left frontal bone and left and right parietal bones and that some of fractured bone pieces were projecting underneath the brain tissues. The High Court, therefore, held that though injury No. 1 inflicted by Bhup Singh and only one it was with intention of causing his death in furtherance of his common intention along with his co-accused Bhagmal and, therefore, came to the conclusion that the accused must be convicted under Section 302 read with 34 Indian Penal Code and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 1000/- each and in default thereof to undergo further rigorous imprisonment for three months. It is against his order the present appeal has been filed.

4. During the pendency of the appeal, Bhup Singh-appellant No. 1 is stated to have died and appeals filed by him stand abated. Hence, appeals filed by Bhagmal-appellant No. 2 alone remain for consideration. What is necessary is to examine the role played by Bhagmal in the case and as to nature of offence committed by him. It is no doubt true that the injury inflicted by Bhup Singh on Prem Singh was with great severity by using a lathi whereas Bhagmal held Prem Singh when Bhup Singh inflicted injuries. Though, the witnesses stated that both of them had come on the scene with lathis, yet Bhagmal did not use the lathi at any stage of the incident. All that is stated against him is that he held the deceased-Prem Singh when injuries were inflicted by Bhup Singh and, thereafter, he gave several fist