CHATTER SINGH Vs. STATE

JUDGEMENT

(1.) THIS is an application in revision by one Chattar Singh who has been convicted by a learned magistrate, First Class, of Tarabganj, Gonda, under Section 323, I. P. C. and sentenced to undergo one year's rigorous imprisonment. The conviction and sentence have been affirmed on appeal by the learned Sessions Judge of Gonda.

(2.) IT appears that a complaint was-filed by one Munna against the applicant and one Samokhan, charging both of them with offences punishable under Sections 326 and 325, I. P. C. The prosecution case, which both the Courts below have found, proved, is that the applicant and his companion, Samokhan, went in the night between 4th and 5th January 1951, to Munna's house and attacked him. Samokhan was armed with a spear and the applicant with a lathi. Samokhan was convicted by the learned Magistrate under Section 326, I. P. C. and the applicant under section 323, I. P. C. Samokhan's conviction has also been upheld oh appeal by the learned sessions Judge and has apparently become final.

(3.) IT may be pointed out that the circumstances were such that the applicant also could be convicted under Section 326 by invoking the aid of Section 34, I. P. C. But that was not done and the applicant is certainly entitled to argue that, as the judgments of the Courts below stand he had been guilty of an offence punishable under Section 323, I. P. C. only and the case is to be decided on the assumption that the offence committed by him was not one more serious than that punishable under Section 323, I. P. C.