JUDGMENT Cr. 1st Appeal No. 26/88 1. This appeal is against the judgment of the 1st Additional Session Judge, Jammu dated 06.09.1988 by which the appellant has been sentenced to five years rigorous imprisonment with a fine of Rs. 1000/-. The appellant was charged for the offence of murder of one Raj Kumar alias Raju on 30.01.1985. The allegation against him and the co-accused is that one the morning of 30.01.1985 when P.W. Jugal Kishore and Sudhir Kumar were accompanied by Raj Kumar, reached Purani Mandi, suddenly the appellant alongwith Sanjay and Kamaljit Singh absconding accused appeared on the scene. While the appellant and sanjay caught hold of the deceased, Kamaljit Singh stabbed him with a "Shoora". On receipt of the injuries the deceased cried. Both the witness tried to catch hold of the assailant but ran away. The appellant was tried in the absence of main accused-Kamaljit Singh who was proceeded under section 512 Cr.P.C. the appellant was found guilty the convicted under section 326 R.P.C. by order dated 30.08.1988. The reasons which weighed with trial court for acquitting the accused under section 302/R.P.C. and convicting him under section 326/34 R.P.C. are found in para 37 of the judgment which is extracted below: "37. Last contention of the learned counsel for the accused is that there is no evidence on the file to show that all the three accused had the common intention of killing the deceased. It is true that there is no evidence to this effect. But at the same time it cannot be said that all the three accused had come there all of sudden and two of them caught hold of the deceased and the third inflicted knife injuries without any pre-planning. Their coming together and suddenly attacking the accused showed that they had the common intention was to kill the deceased or cause him some other injury is a matter to be considered. Both the present accused were without any weapon while the absconding accused had the knife. There is no evidence to show that all the three accused had preplanned to kill the deceased nor the present accused can be presumed to have the knowledge that Kamaljit Singh would inflict fatal injury. Inflicting of first injury on a non vital part, i.e., thing by Kamaljit Singh hits as if all the three accused did not have the common intention to kill the deceased. Inflicting of first injury on a non vital part, i.e., thing by Kamaljit Singh hits as if all the three accused did not have the common intention to kill the deceased. From the prosecution evidence the common intention of all the accused to cause death of the deceased has not been established beyond reasonable doubt. But it definitely makes out the common intention on their part to cause grievous hurt with a knife to the deceased." So the trial court appears to be of the opinion that only Kamaljit Singh had the intention to kill while the appellant could be said to have common intention of only causing grievous injury. 2. However, subsequently, Kamaljit Singh was also tried to the charge of murder. He was, however, acquitted by the same court by judgment dated 28.11.1994. Para 7 of this judgment reads as under: "7. Three persons had been cited as the witnesses of the occurrence. In the prior trial all the three had supported the prosecution story as against the convicts identified hereinforce. In this trial one of the alleged eye witness Mr. Vijay Kumar was given up by the prosecution as won over and the remaining two when put on the stand knocked out the story by saying that accused Kamaljit Singh was not the third person to have participated in the commission of that act which had resulted in the death of deceased Raj Kumar. Shocking is that the alleged witnesses of seizure who had supported the story in the first trial have now turned turtle to belies the story on the particulars of seizure allegedly affected in their presence. The other listed witness in the charge sheet were all police officials but they were not shown the witness stand despite opportunities and despite clear warning that any default in keeping the witnesses in attendance will result in closure of the evidence." 3. The question arises whether Kamaljit Singh gave the fatal blow to the deceased or someone-else. The fact is that Kamaljit Singh is named in the F.I.R. but since he has been acquitted, the conviction of the appellant cannot be sustained because of the acquittal of the main accused. They at best could be said to have wrongfully restrained the deceased without use of any force. The fact is that Kamaljit Singh is named in the F.I.R. but since he has been acquitted, the conviction of the appellant cannot be sustained because of the acquittal of the main accused. They at best could be said to have wrongfully restrained the deceased without use of any force. Since the charge against the main accused has failed, we allow this appeal and acquit the appellant by setting aside his conviction. We may, however, clarify that the judgment should not be construed to lay down any law that if a witness on whose testimony the conviction has been recorded subsequently resiles from his statement against another co-accused, the earlier order of conviction must also go, because this will depend upon the credibility of the witness. Since this larger question was not relevant for the decision of this case, therefore, we have avoided to answer this in either way. So for as Sanjay Chandel is concerned, he already dead and therefore he could not appeal against the judgment. We make the order accordingly. Cr. Acq. Appeal No. 39/1988 4. This appeal is against the judgment dated 06.09.88 whereby respondents 1 & 3 were convicted under section 326/34 R.P.C. by the learned 1st Additional sessions Judge, Jammu. Whole acquitting them under section 302/34 R.P.C. During the pendency of the appeal, Kamaljit Singh A-A was also tried and acquitted because the witness turned hostile. No appeal has been filed against his acquittal, him, so this appeal has become infructuous and is dismissed accordingly.