Supreme Court of India

SURINDER SINGHversusTHE STATE OF PUNJAB

Citation: 2003 INSC 379
Decided: 8 August 2003
Disposal: Appeal(s) allowed
Bench: DORAISWAMY RAJU

Holding

In the absence of concrete evidence of a common intention to kill and given the final acquittal of the principal offender, the appellant cannot be convicted under Section 302 read with Section 34 IPC.

Summary

The case concerned the murder of Santokh Singh, in which five accused, including the appellant Surinder Singh, were tried. The main accused, Darshan Singh, was a proclaimed offender and was tried separately, later being acquitted. The trial court had convicted Surinder Singh and another accused under Section 302 read with Section 34 IPC, based on the contention that they shared a common intention to kill. On appeal, the Supreme Court examined whether the appellant’s act of holding the victim’s arms facilitated the fatal injuries inflicted by the main accused, and whether the acquittal of the main accused barred conviction of the appellant. The Court held that there was no concrete evidence of a common intention to kill and that the appellant’s conduct did not enable the fatal blows, especially in view of the final acquittal of the main accused. Consequently, the benefit of doubt was extended to the appellant and his conviction was set aside. The appeal was therefore allowed and the bail bonds discharged.

Issues considered

The presence of a common intention under Section 34 IPC among the accused despite the main accused’s acquittal
Whether the appellant’s act of holding the victim’s arms facilitated the fatal injuries
Whether the acquittal of a co‑accused automatically precludes conviction of other accused

Legislation cited

Code of Criminal Procedure, 1973s. 313, s. 511
Indian Penal Code, 1860s. 201, s. 302, s. 34, s. 511

Subjects

murdercommon intentionSection 34 IPCproclaimed offenderbenefit of doubtacquittalvicarious liabilitycriminal liabilityappeal

Judgment

SURINDER SINGH A
v.
THE STATE OF PUNJAB

AUGUST 8, 2003

[DORAISWAMY RAJU AND H.K. SEMA, JJ.] B

Criminal Trial: Murder-Five persons allegedly involved-Main accused
eluded arrest-Declared Proclaimed Offender-Trial in the absence of main
accused-Conviction of two accused uls 302 rlw Section 34 and acquittal of C
remaining two accused-Main accused apprehended, tried separately and
acquitted-No appeal preferred-However, appeal preferred by the convicted
accused-Held, acquittal of main accused, even though wrongly, does not
ipso facto impede the conviction of other accused and vice versa-Fatal injuries
on the body of the deceased inflicted by the main accused after appellant
released the hands ofthe deceased and thus not facilitating the main accused- D
Jn absence of any concrete evidence to prove any intention/pre-meditation to
commit murder and also on the ground ofacquittal of main accused, appellant
entitled to benefit of doubt and thus exonerated-Penal Code, I 860; Ss. 34,
201 and 511/Code of Criminal Procedure, 1973; Section 313.

According to the prosecution, on the fateful night when the deceased,
E
in a drunken condition, abused accused and others in filthy language,
accused, also in a drunken condition, had beaten him. PW7 and others
intervened and got them separated. Later, one of the accused dragged the
deceased to the house of another accused, the main accused. On hearing
the cry of the deceased, PW7 and others went inside the house of the main F
accused and saw him sitting on the chest of the deceased and throttling

- him whereas the accused-appellant, brother of the deceased, was holding
the deceased from his arms and other accused gave fist blows to the
deceased. PW7 also noticed that the main accused had given kick blows
on the testicles of the deceased. The deceased died on the next day.' An G
FIR was lodged against appellant and four others for having allegedly
committed the murder of the deceased. The main accused, eluded arrest,
and was declared a Proclaimed Offender (PO). Trial Court, in the absence
of the P.O., tried other accused and found only two of them, including
appellant, guilty of having committed offences u/s 302 r/w Section 34 IPC;
convicted and sentenced them accordingly and acquitted other two H
359
360 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A accused.
Later, the P.O. was also arrested and tried for offences under
Sections 302 and 34 IPC; however, prosecution witnesses turned hostile
in the trial. Hence, he was acquitted by the Trial Court. State did not
prefer any appeal. The other accused unsuccessfully preferred an appeal
B against their conviction before the High Court. Hence the present appeal
preferred by the two accused. Since one of them died, his name was
deleted.

It was contended for the appellant that when the main accused gave
C fatal blows on the testicles of the deceased and he was acquitted, conviction
of the appellant for offences u/s 302 r/w Section 34 IPC was not justified,
particularly in the absence of any premeditated scheme/design to kill the
deceased.

Allowing the appeal, the Court
D
HELD: 1.1. In a criminal act, where several persons are engaged or
concerned in the commission of it, they may be guilty of different offences
by means of their own acts. No doubt when such criminal act is done by
several persons in furtherance of the common intention of all, each of such
persons is liable for that act in the same manner as if it were done by him
E alone. If an· offence is committed by any member of an "unlawful
assembly" in prosecution of the common object of that assembly or such
as the members of that assembly knew to be likely to be committing of
that object, every person who at the time of committing of that offence, is
a member of the same assembly, is guilty of that offence. The fact that
p any one of them may at times even stood wrongly acquitted and no appeal
was preferred by the State against such acquittal does not ipso facto impede

-
the conviction of the other accused. Equally the conviction of one such
does not automatically result in the conviction of every one involved in
the occurrence, even de hors their actual role, the general and basic
pri9ciple of criminal liability being that only that person, who commits
G the crime, would be held guilty and punished, except in cases where the
concept of vicarious liability is recognized under law - to that extent and v
that too subject to the conditions therefor being strictly shown to exist in
a given case. (368-D, E, F, G)

1.2. In the instant case, accused Nos. l and 2 since dead, were
H convicted under Sedion 302 r/w Section 34 for causing the death of the
SURINDER SINGH v. STATE: OF PUNJAB 361
brother of accused No. 1, the deceased. The positive evidence firmly stated A
by PW7 and PW8 regarding the role of the appellant that he was holding
the hands of the deceased, when he was found lying down and the main
accused, proclaimed offender, sat on the chest of the deceased and was
trying to throttle him. PW7 pushed the main accused away from the chest
of the deceased and the appellant also seemed to have released the hands B
of the deceased. It was at that stage the main accused had given 3-5 kicks
on the testicles of the deceased. The death does not seem to have been
instantaneous as the occurrence was at 8-9 p.m., bt•t the death occurred
late in the night. Main accused only was said to have played the major
role and caused primarily the fatal injuries on the testicles and even the
injury found on the neck or on the chest. The kicks given on the testicles C
were after he was pushed away by PW7 from the chest and after the
present appellant also released his hands, which the appellant was initially
seen to be holding. (368-H; 369-A-D)

1.3. It could not be held that the appellant by holding the hands of
the deceased facilitated the main accused to inflict any of the fatal injuries D
since kicks on the testicles were said to have given and could normally be
possible only after the main accused was pushed away from the chest of
the deceased by PW7, when it is stated by the witnesses that simultaneously
the hands of the deceased also came to be released by the appellant. The
acquittal of the main accused has attained finality in the absence of any E
appeal by the State against his acquittal. The appellant cannot, therefore,
be indicted as having in any manner been responsible or having rendered
it possible for the other accused to inflict the fatal injuries. Section 34 IPC
seems to have been resorted to mechanically and merely because, the
assault was by the accused in a group, in the manner spoken to by the
witnesses and not on account of any other circumstance indicative of any F
common intention or presumption to commit such an act. In the teeth Qf
---f the acquittal of the main accused, and in the absence of any concrete
evidence to prove common intention to kill, the appellant is entitled to be
extended the benefit of doubt and exonerated. (369-E-H)
G
- CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 819
of 1996.

From the Judgment and Order dated 28.9.87 of the Punjab and Haryana
High Court in Crl A. No. 330-DB of 1986
H
U.R. Lalit, K.B. Rohtagi, Mahesh Kasana and Ms. Apama Rohtagi Jain
362 SUPREME COURT REPORTS (2003] SUPP. 2 S.C.R.

A for the Appellant.

Bimal Roy Jad and Ms. Sunita Pandit for the Respondent.

The Judgment of the Court was delivered by

B D. RAJU, J. The appellant-accused No. I and four others stood charged
for offences under Section 302 read with Sections 34, 20 I and 511 of the
Indian Penal Code (for short 'IPC') for having allegedly committed the murder .....
of one Santokh Singh alias Sokha on 28. I I. I 985 at about 8-9 p.m. One of
them, by name Darshan Singh said to be the Sarpanch of the village, could
not be apprehended and eluded arrest, necessitating in his being declared a
C Proclaimed Offender [for short "P.O."], resulting in the trial before the learned
Additional Sessions Judge, Jalandhar, being effectively proceeded in Sessions
Case No.8 of I 996 - Sessions Trial No. I I of I 986 only as against the appellant
and three others. The learned Trial Judge acquitted Bhajan Singh (A-3) and
Baksha (A-4) on the ground that there is no evidence against them for having
D played any role in the occurrence, having regard to the evidence let in by the
prosecution. Though the appellant and one Tarsem Singh (A-2) were convicted
for the offence under Section 302 read with Section 34, IPC, and sentenced
to life imprisonment, in addition to the payment of Rs.500 as fine and jointly
filed the appeal in this Court having lost their appeal before the High Court
of Punjab and Haryana at Chandigarh in Criminal Appeal No.399-DB of
E I 986. The second accused appears to have died and on recording the same,
his name was deleted from the array of appellants by an order dated
10.05. I 996, leaving the above appellant as the sole appellant to pursue this
appeal. The necessary and relevant facts, as projected by the prosecution,· are
as hereunder:-
F
On 28. l I .1986 at about 8.00 p.m., Harcharan Singh (PW-7) along with
Rattan Singh, Jhalman Singh and A vtar Singh were said to be present in the
chowk of Gurudwara, making arrangements for Bhog Ceremony of Gurudwara
Granth Sahib, which was to take place on 29.I l.1985, when the deceased
Santokh Singh appears to have come from the side of Tubewell in a drunken
G condition. He was said to have proceeded towards the street leading to the
house ofDarshan Singh (P.O.). At that time, the appellant, Tarsem Singh and
Darshan Singh (P.O.) also seem to have come in a drunken condition. The
deceased appears to have abused· them in the name of sisters and remarked
that the accused had disturbed his family life and subsequently they wanted
H to grab his land also. On hearing the same, the accused gave pushes to the
deceased and PW-7 and others seem to have intervened and made the accused
SURINDER SINGH v. STATE OF PUNJAB [RAJU, J.) 363

let the deceased go free. As per the further version of the prosecution, all the A
accused thereafter dragged the deceased to the house ofDarshan Singh (P.O.)
and after some time they heard the raula of 'Mar Ditta, Mar Ditta' from the
house of Darshan Singh (P.O.). Since the outer door of the said house was
open, PW-7 along with Rattan Singh, Avtar Singh and Jhalman Singh went
there and saw that Darshan Singh (P.O.) was sitting on the chest of the B
deceased, who was lying on the ground in supine position and Darshan Singh
was in the act of throttling the deceased, while the appellant, Surinder Singh,
I
was said to be holding the deceased from his arms. Tarsem Singh, the other
accused, was found to be giving fist blows to the deceased. Harcharan Singh
and others were said to have pushed Darshan Singh away from the chest of
deceased and the appellant also released the deceased from his arms. In the C
•process at that stage, Darshan Singh (P.O.) appears to have given 2-3 kick
blows on the testicles of the deceased stating that the deceased used to abuse
daily and the matter was to be settled once for all. The appellant appears to
have asked the others to go out of the house of Darshan Singh as the matter
was between the brothers. The appellant is said to be the real brother of the D
deceased and they had one more brother by name Mohinder Singh, who was
also said to be living with the brothers in their house where the father of the
deceased and the appellant by name Darshan Singh was said to be also living
with his wife. Thereafter, they seem to have dispersed and on the next day
it appears they came to know that Santokh Singh died. PW-7 and others seem
to have discussed the matter among themselves and thereafter PW· 7 went to E
Police Station at Banga and gave a Statement (Ext.P.2) before the Police, on
the basis of which a formal FIR (Ext. P.l) was said to have been recorded.

During the course of investigation, inquest was said to have been
conducted and the body sent to post mortem. Blood stained earth was also
said to have been lifted from the place of occurrence and a sketch of the F
place of occurrence was also said to have been prepared. After inquiring and
recording Statements from all concerned and arresting the accused and after
... receiving the post mortem report in which it was stated by PW-1, the Doctor
who conducted the post mortem examination, that the death was due to
Injury No.4 on the testicles of the deceased resulting in neurogenic shock G
cardiac arrest, combined with asphyxia due to injury to the neck by Injury
No. l; that those injuries were sufficient to cause death in the ordinary course
of nature. Thereupon, the charge was laid as noticed supra and in the absence
of Darshan Singh, the Sarpanch, who was declared to be a Proclaimed
Offender, the trial was continued and completed against the other accused. H
364 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A The learned Trial Judge was convinced of the case of the prosecution so far
as Accused Nos. I and 2 are concerned and convicted them, as noticed earlier,
but acquitted the remaining two, A-3 and A-4. Aggrieved, A-1 and A-2
pursued the matter on appeal before the High Court. The Division Bench of
the High Court concurred with the conclusions and findings recorded by the \..
B learned Trial Judge and found no substantial merit in the challenge made to
the same, resulting in the dismissal of the appeal. Hence, this appeal.

While matter stood thus, it appears that Darshan Singh, who could not \

be initially traced, arrested and brought to trial along with the other four, was
arrested, interrogated and challaned before the Trial Judge to face trial under
C Section 302, IPC, in Sessions Case No.98 of 1989 with reference to the
original FIR No.365 dated 29.11.1985. During the course of this trial against
Darshan Singh, the said accused pleaded not guilty. The prosecution seems
to have examined the Doctor, who conducted the post mortem, as PW-I as
in the case of the earlier trial, and one Avtar Singh (PW-2), Rattan Singh
D (PW-3), Harcharan Singh (PW-4) (who was PW-7 during the earlier trial),
Madan Lal Sharda (PW-5) and Sub-Inspector Jasbir Singh (PW-6). The Doctor
(PW-I) seems to have spoken in the same manner as he did on the earlier.
occasion in the other trial. Avtar Singh (PW-2) and Rattan Singh (PW-3),
who were alleged to be also the eyewitnesses to the occurrence along with
· PW-4, have not supported the prosecution story to any extent whatsoever
E since they seem to have stated that they do not know who committed the
murder of Santokh Singh alias Sokha. It is useful to point out at this stage
that A vtar Singh and Rattan Singh, who were examined in the subsequent
trial as PWs-2 and 3, were given up by the prosecution in the earlier trial as
having been won over by the accused. Harcharan Singh, who was examined
F as PW-4 in the subsequent trial, seems to have asserted that Darshan Singh,
Ex-Sarpanch, who was one of the accused and in whose house the occurrence
was said to have taken place, was a person different from Darshan Singh,
who is facing the second trial. On that premise of his, he appears to have
stated in the second trial that he never stated that the accused, then facing the
second trial as Darshan Singh, has caused the murder of Santokh Singh alias
G Sokha. All the said three private witnesses examined as P.Ws were got declared
as hostile and were cross-examined by thi! prosecution, with no favourable
response whatsoever to support the case of the prosecution. Jhalman Singh,
who was said to be one of the eyewitnesses to the occurrence and was
examined as PW-8 in the earlier trial, appears to have been given up by the
H prosecution in the second trial as having been won over by the accused. In
SURINDER SINGH v. STATE OF PUNJAB [RAJU, J.] 365

the light of such turn of events and total lack of legally acceptable evidence A
to implicate Darshan Singh during the second trial, the learned Additional
Sessions Judge, Jalandhar, by his judgment dated 4.3.1991, acquitted the said
Darshan Singh.

Materials have been placed on record, with the leave granted on
10.5.1996 to the counsel for the appellant to ascertain information about the B
filing of any appeal as against the acquittal of the co-accused Darshan Singh,
in the fonn of a communication dated 17 .6.1996 said to have been received
from the office of the Advocate General of Punjab at Chandigarh that according
to the record maintained in that office the State of Punjab had not filed any
appeal against the accused Darshan Singh in the case noticed in the subject C
read in the said letter as State v. Darshan Singh as FIR No.365 dated
29. l l.1985 under Section 302/34, IPC, decided by the learned Additional
Sessions Judge, Jalandhar, on 4.3.1991.

Before adverting to the relevant contentions of the parties, it is useful D
as well as necessary to refer to the relevant summary of the evidence tendered
by the prosecution in the earlier trial, which resulted in the conviction of the
appellant and another. As noticed earlier, PW- I was the Doctor, who conducted
the post mortem examination. He broadly spoke with certain essential details
as to the condition of the body when it was received for post mortem
examination, the nature of injuries found on external examination and after E
intern_al examination and the reasonable cause, in his opinion, for the death
of Santokh Singh, as disclosed in the post mortem report (Ext. P.21 ). Out of
those who were said to have witnessed the occurrence, Harcharan Singh and
Jhalman Singh were examined as PWs-7 and 8 and it is their evidence that
become not only relevant but gains importance, as alleged eyewitnesses to F
the occurrence. The other witnesses, PWs-2 to 6, were merely witnesses for
various steps taken in the course of investigation and PWs 10 and 11 were
respectively the ASI and SI, who conducted the investigation. PW-7, as could
be seen from the evidence given by him, stated that he and the others, as
noticed earlier, were standing when the deceased came that side abusing the
accused and about their separating the deceased and the accused thereafter G
dragging them inside the house of Darshan Singh and further as to what they
saw inside the house. So far as the appellant was _concerned when the deceased
was lying down with Darshan Singh sitting on his chest trying to throttle, he
was said to be holding the deceased from his arms. Neither this witness nor
PW-8 attributed any other overt act of either beating the deceased or causing H
366 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A any injury of any kind on any part of the body. The witness spoke about the
PWs pushing the accused Darshan Singh away from the chest of the deceased
and the appellant not only releasing the deceased from his arms, but also
asking the others to leave the place since it was a matter purely between the
brothers. This witness spoke very categorically that Darshan Singh was not
B only stating that the deceased used to abuse daily and the matter was to be
settled once for all, but apart from his sitting on the chest and trying to
throttle the deceased, gave 2-3 kick blows when he was released from the
chest of the deceased. It appears that this witness is not that well deposed
towards Darshan Singh as could be seen from some of the suggestions made
in the cross-examination, but that does not by itself indicate that he was
C talking any falsehood. PW-8, the other witness to the occurrence, though
broadly concurred with the version spoken by PW-7, stated that Santokh
Singh came from the side of the Tubewell leading towards the house of
Darshan Singh, the accused, and when Darshan Singh and others came from
the opposite direction the deceased abused them and then all the three accused
D caught hold of the deceased; that those, who were present including the
witnesses, released the deceased from the accused and that it is the deceased
who thereafter entered the house ofDarshan Singh following the other accused.
As to what transpired inside the house also, this witness affirmed the version
of PW-7 about the appellant catching the deceased from his arms and Tarsem
E Singh, the other accused, since dead, was found giving fist blows to the
deceased. All these persons were said to have pushed Darshan Singh from
the chest of the deceased and at that time the said Darshan Singh seems to
have given 4-5 kick blows on the testicles of the deceased. This witness also
deposed that on the next day on coming to know the death of Santokh Singh
during the night, the others including this witness deputed PW-7 to report the
F matter to the Police. It is in the light of such evidence the learned Trial Judge,
after concluding the earlier trial and after examining the accused under Section
3 I 3, Cr. P.C., analysed the materials on record and came to the conclusion
that the occurrence took place inside the house ofDarshan Singh (P.O.); that
even after separation of the deceased and the accused, when they quarreled
G outside, the accused took the deceased inside the house of Darshan Singh ~nd
that, at any rate, the deceased was found equally to have abused the others
as deposed by these witnesses. The learned Trial Judge further, in the
concluding portion after noticing the evidence of PWs-7 and 8, has held as.
follows :-

H "23. The learned counsel submitted that Surinder Singh accused was
SURINDER SINGH v. STATE OF PUNJAB [RAJU, J.] 367
only holding the arms of the deceased and that he be held guilty u/ A
s 323 IPC whereas Tarsem Singh was giving fist blows to the deceased
which resulted in fractures and that he would be responsible u/s 325
IPC. It was injury No.4 on the testicles, which resulted in neurogenic
shock, cardiac arrest, combined with asphyxia due to injury to the
neck. I agree with the contention of the learned counsel that since
Darshan Singh (PO) is not facing trial in this Court. To any allegations B
alleged to him are not to be adjudged at present. In the opinion of the
doctor, the injury to the testicles combined with asphyxia due to
injury to the neck corresponding to injury No. I was collectively
sufficient to cause death and injury No.4 could be sufficient to cause
death and other injury are contributory. But the earlier statement of C
the doctor shows that this injury No.4 on the testicles as also injury
No. I, which caused asphyxia had caused the death of Santokh Singh.
I hold Tarsem Singh and Surinder Singh, accused guilty u/s 302/34
IPC and convict them accordingly."

The consideration by the learned Trial Judge seems hardly to be an D
objective one judiciously made before indicting a person guilty charged with
a serious offence of murder.

The learned Judges of the Division Bench, after observing that they
have closely perused the evidence on record and the judgment recorded by
the Trial Court, were of the view that for the reasons stated in the judgment E
of the Trial Court, the prosecution was able to establish the motive for the
grouse against the deceased and since, in their view, PWs-7 and 8 gave a
consistent account as to what happened at the time of occurrence, their evidence
taken together with the medical evidence supported the case of the prosecution
and inasmuch as on the totality of the facts, the inference of common intention p
was found irresistible, conviction under Section 302 read with Section 34,
IPC, was justified.

The learned Senior Counsel for the appellant strenuously contended
that the action of the appellant in holding the arms of the deceased when he
was lying down with Darshan Singh sitting on his chest, could not justify any G
conviction against him and, at any rate, conviction under Section 302 read
with Section 34, IPC. The further submission very strongly made on behalf
of the appellant was that when the principal offender as could be seen to be,
namely Darshan Singh (P.O.), even as per the evidence of PWs-7 and 8 in
the present trial, which was earlier in point of time, who was attributed with H
368 SUPREME COURT REPORTS (2003] SUPP. 2 S.C.R.

A all overt acts of attempts to throttle as well as giving ultimately 3-5 kick
blows on the testicles of the deceased himself, came to be acquitted, it would
not only be unjust but contradiction in tenns to convict the appellant foi: an
offence under Section 302 read with Section 34, IPC. Argued the learned
counsel further that there cannot be two contradictory and inconsistent findings
in respect of the same occurrence to somehow convict the appellant, unmindful
B of the insignificant role that was attributed to the appellant, particularly in the
absence of any premeditated scheme or design to kill the deceased. Inviting
our attention to the nature of evidence actually let in, it was finally contended
on behalf of the appellant that the appellant could not be convicted for any
offence ·and ought to have been acquitted, in toto.
c The learned counsel for the respondent-State also invited our attention
to the relevant portions of the evidence and the judgments rendered by the
High Court in the present case and those rendered by the learned Additional
Sessions Judge, Jalandhar, both in the present case and the one after the
subsequent trial, in respect of Darshan Singh.
D
We have carefully considered the submissions of the learned counsel
appearing on either side. That in a criminal act, where several persons are
engaged or concerned in the commission of it, they may be guilty of different
offences by means of their own acts. No doubt when such criminal act is
done by several persons in furtheranc.e of the common intention of all, each
E of such persons is liable for that act in the same manner as if it were done
by him alone. If an offence is committed by any member of an "unlawful
assembly" in prosecution of the common object of that assembly or such as
the members of that assembly knew to be likely to be committed in prosecution
of that object, every person who, at the time of the committing of that offence,
F is a member of the same assembly, is guilty of that offence. The fact that any
one of them may at times even stood wrongly acquitted and no appeal was
filed by the State against such acquittal does not ipso facto impede the
conviction of the other(s) accused. Equally the conviction of one such does
not automatically result in the conviction of every one said to be involved in
the occurrence, even dehors their actual role, the general and basic principle
G of criminal liability being that only that person, who commits the crime,
would be held guilty and punished, except in cases where the concept of
vicarious liability is recognized under law - to that extent and that too subject
to the conditions therefor being strictly shown to exist in a given case.

So far as the case on hand is concerned, Surinder Singh (Accused
H
SURINDERSINGHv. STATEOFPUNJAB[RAJU, J.] 369
No. I) and Tarsem Singh (Accused No.2), since dead, were convicted under A
Section 302 with the assistance of Section 34 for causing the death of Santokh
Singh @ Sokha - the brother of Accused No. l. The positive evidence firmly
stated by PW-7 and PW-8 regarding the role of the appellant is that he was
holding the hands of the deceased, when he was found lying down and
Darshan Singh, Sarpanch, who was proclaimed offender, sat on the chest of B
the deceased and was said to be trying to throttle him. PW-7 was said to have
pushed Darshan Singh away from the chest of the deceased and the appellant
also seemed to have released the hands held by him. It was at that stage
Darshan Singh was said to have given 3-5 kicks on the testicles of the
deceased. The death does not seem to have been instantaneous and the evidence
on record is that the occurrence was at 8-9 p.m., but the death occurred late .C
in the night in his house. As per the evidence on record, accused Darshan
Singh only was said to have played the major role and caused primarily the
fatal injuries on the testicles and even the injury found on the neck or on the
chest. The kicks given on the testicles were after he was pushed away by
PW-7 from the chest and after the present appellant also released his hands,
which the appellant was initially seen to be holding. The said Darshan Singh D
was a proclaimed offender during the first trial with which we are directly
concerned, and in the second trial of Darshan Singh after he was apprehended,
the court acquitted him, in spite of examining the very witnesses PW-7 and
PW-8, in addition to Avtar Singh and Rattan Singh who were stated to be the
other eye witnesses to the occurrence. So far as the appellant is concerned, E
it could not be held that his holding the hands of the deceased facilitated
Darshan Singh to inflict any of the fatal injuries and kicks on the testicles
were said to have given and could normally be possible also to be given only
after Darshan Singh was pushed away from the chest of the deceased by PW-
7, when it is stated by the witnesses that simultaneously the hands of the
deceased also came to be released by the appellant. The acquittal of Darshan F
Singh has attained finality in the absence of any appeal by the State against
his acquittal. The appellant cannot, therefore; be indicted as having in any
manner been responsible or having rendered it possible for Darshan Singh to
inflict the fatal injuries. Section 34, IPC, seems to have been resorted to in
case mechanically and merely because, the assault was by the accused in a G
group, in the manner spoken to by the witnesses and not on account of any
other circumstance indicative of any common intention or premeditation to
commit such an act. In the teeth of the acquittal of Darshan Singh, the main
accused, and in the absence of any concrete evidence to prove common
intention to kill, the appellant is entitled to be extended the benefit of doubt
H
370 SUPREME COURT REPORTS (2003] SUPP. 2 S.C.R.

A and exonerated.
For the foregoing reasons, we set aside the conviction of the appellant,
accused No. I. The appeal in so far as he is concerned shall stand allowed.
The bail bonds shall stand discharged.

B S.K.S. Appeals allowed.

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