VIJAY KUMAR Vs. STATE OF PUNJAB

JUDGEMENT

(1.) WHEREAS Vijay Kumar, Sarwan Kumar and Kamal Kishore are aggrieved of the order of conviction and sentence recorded against them by the learned Sessions Judge, Gurdaspur, holding Kamal Kishore guilty of an offence under Section 302 IPC and ordering him to undergo imprisonment for life and to pay a fine of Rs. 2,000/-, or in default of payment of fine to further undergo rigorous imprisonment for a period of two years, as also holding Sarwan Kumar and Vijay Kumar guilty under Section 326 read with Section 34 IPC and ordering them to undergo rigorous imprisonment for three years and to pay a fine of Rs. 2,000/- each, or in default of payment of fine, to further undergo rigorous imprisonment for six months, the State of Punjab in Crl. Appeal No. 268-DBA of 1997 is equally aggrieved of the order referred to above, whereby the learned Sessions Judge has acquitted Vijay Kumar and Sarwan Kumar, of the charges under Section 302 read with Section 34 IPC. Obviously, therefore, the prayer of the appellants in Crl. Appeal No. 116-DB of 1996 is that they deserve a clean acquittal, thus, necessitating setting aside of the order of conviction and sentence recorded by the learned Sessions Judge, the State of Punjab seeks modification of the same order and, as referred to above, to convict Vijay Kumar and Sarwan Kumar under Section 302 read with Section 34 of the Indian Penal Code. It may be mentioned here that appellant Kamal Kishore was also held guilty and convicted under Section 25 of the Arms Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/-, or in default of payment of fine, to further undergo rigorous imprisonment for three months. Crl. Appeal No. 117-DB of 1996 has been filed by Kamal Kishore-appellant challenging his conviction and sentence under Section 25 of the Arms Act.

(2.) LEARNED counsel for the appellants in Crl. Appeal No. 116-DB/96 while arguing the matter, however, confined his arguments with regard to nature of offence committed by Kamal Kishore and non-sharing of common intention of Sarwan Kumar and Vijay Kumar with their co-appellant Kamal Kishore in causing the death of Makhan @ Bittu. The State counsel, on the other hand, has endeavoured to show that Sarwan Kumar and Vijay Kumar shared the intention of Kamal Kishore in causing the death of Makhan @ Bittu and, therefore, they too deserve to be held guilty under Section 302 read with Section 34 IPC. In the context of the contentions raised by learned counsel for the parties, there is only need to briefly notice the facts of the case.

(3.) WITH a view to substantiate its case, the prosecution examined Dr. J.S. Bhinder, Medical Officer, Civil Hospital, Pathankot as PW1, who conducted post-mortem on the dead-body of Makhan @ Bittu and found following injuries :-