OM PRAKASH SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The appellant stands convicted under Ss. 302,34, IPC for an occurrence which took place on 8/6/1999. The first accused has been convicted under Sec. 302 IPC. The two accused were fighting amongst themselves while playing cricket in the morning of the fateful day. The deceased tried to intervene to pacify. The same night at about 10:00 p.m. the deceased is said to have been assaulted with a kirpan by the first accused while the appellant held the deceased.

(2.) Shri Rishi Malhotra, learned counsel appearing on behalf of the appellant, submits that his conviction under Ss. 302,34 IPC is not justified as there is no evidence of any common intention to commit the assault. There cannot be an inference of common intention merely because the appellant was present or that he held the deceased. PW-5 and PW-6 deposed that the appellant had only stated that the deceased should be taught a lesson. There was no exhortation by the appellant to kill the deceased. The appellant only intended and meant that the deceased should be thrashed. The appellant was unaware that the first accused was carrying a kirpan. In any event a kirpan is not a weapon of assault, but is carried on person by individuals of a specific community as part of a religious belief. The murderous assault by the first accused was his individual act for which he has been singularly held liable. The appellant cannot be attributed either knowledge or intention, much less to have shared a common intention. Reliance is placed on Ajay Sharma vs. State of Rajasthan [1999 (1) SCC 174] and Matadin vs. State of Maharashtra [1998 (7) SCC 216]. At best the appellant may be liable to be convicted under Sec. 324 read with Sec. 110 of the Indian Penal Code.

(3.) Ms. Jaspreet Gogia, learned counsel appearing on behalf of the State, submits that the judgment sought to be relied upon are distinguishable on facts. A fracas had taken place in the morning. The two accused then came looking for the deceased near his fields at about 10:00 p.m. This shows a premeditated design which is nothing but evidence of having a common intention. The appellant held the deceased while the co-accused stabbed. If the appellant had not held the deceased, he could have possibly run away to save his life.