JUDGMENT Thomas, J.
1. Leave granted in SLP (Cr.) 297 of 1999.
A septuagenarian Ram Narain Singh was killed by cutting the throat on the night of 16th April, 1992. The ferocious act has been attributed to appellant Shambhu Nath Singh. He alongwith four other persons were convicted by the Trial Court under Section 302 read with 34 of the Indian Penal Code. The High Court confirmed the conviction and sentence of life imprisonment passed on them. These appeals are by Shambhu Nath Singh, Raj Gir Singh and Ram Narain who were arrayed as A3, A4 and A5 respectively. We are told that the other accused viz., Jag Lal Singh and Nokha Singh (who are arrayed as A1 and A2) died during the pendency of these appeals. Thus we have only to deal with the case of the three appellants named above.
2. The whole case depends upon the veracity of one eye-witness PW8-Kaushal Kishore Singh, the 19 year old son of the deceased. His narration, in brief, is the following. All the 5 accused met his father at the mango orchard. There was some property dispute between one of the accused and the father of PW8. A3-Shambhu Nath Singh asked the deceased something about the property and the deceased gave some reply, upon which A1- Jag Lal Singh made an exhortation "marne ka" (it is translated as kill him - it is also contended that those words can be translated as "beat him") The old man was pushed down. A5-Ram Narain Singh caught hold of his hands while A1 caught hold of his legs and it was A3, who sat on his chest, took out a sharp razor and cut his neck. A4 - Raj Gir Singh was standing nearby. When PW8 neared his father on seeing the incident A4 is said to have threatened him. As the Trial Court and the High Court placed reliance on the evidence of PW8 - Kaushal Kishore Singh which is corroborated by PW, PW4 arid PW5, it is not proper for us to re-evaluate the evidence of PW8 now. We proceed accepting his testimony on the broad probabilities.
3. The role attributed to A4 - Raj Gir Singh is not enough to fasten him with liability with the aid of Section 34 of the Indian Penal Code. The mere fact that he threatened PW8 need not necessarily indicate any common intention he would have shared with others. It could as well have been to scare the boy away from the scene lest he too would be attacked by the assailants. The other two persons (A3 - Shambhu Nath Singh and A5 - Ram Narain Singh) have no escape from conclusion that they intended to murder the deceased. A3 used a very lethal weapon and cut the neck of the deceased. The evidence show that A5 had shared the common intention with Shambhu Nath Singh in causing the murder, as he held the hands of the deceased evidently to facilitate the other accused to complete the operation.
4. In the result we allow the appeal of Raj Gir Singh and set aside the conviction and sentence passed on him. He is acquitted and direct him to be set at liberty forthwith unless he is required in any other case. But we confirm the conviction and sentence passed on A3 - Shambhu Nath Singh and A5 - Ram Narain Singh and dismissed the appeal filed by them.
Appeal allowed in part.