RAM NARAIN Vs. STATE

JUDGEMENT

(1.) The applicant Ram Narain, along with 11 other persons, was charged Under Section 379 read with Section 149 I.P.C. for committing the theft of the crop of one Smt. Pargasi. Ram Narain and Kamta were further charged Under Section 323 and with Section 34 I.P.C. for beating her and inflicting simple hurt on her. The trial court after a consideration of the entire evidence convicted the accused Under Section 379 I.P.C. read with Section 149 I.P.C. and sentenced each of them to 3 months' rigorous imprisonment and a fine of Rs. 100. It further convicted Ram Narain Under Section 323 read with Section 34 I.P.C. Kamta was acquitted of this charge. An appeal was filed against this decision before the learned Sessions Judge of Allahabad which was decided by the learned Assistant Sessions Judge. He was of the opinion that the charge Under Section 379/ 149 I.P.C. had not been established against the accused. He, therefore, allowed the appeal and set aside their conviction and sentence under this section. He was, however, of the opinion that the applicant Ram Narain had been rightly convicted Under Section 323 read with Section 34 I.P.C. He, therefore, maintained his conviction and sentence and dismissed his appeal. Ram Narain has come up in revision against this order.

(2.) It has been contended before me on his behalf that in view of the finding of the courts below that Kamta was not concerned in the offence Under Section 323 I.P.C. and had been acquitted of that charge, and there being no definite finding by the courts below that Ram Narain was the person who had beaten Smt. Pargasi, the conviction of Ram Narain Under Section 323 read with Section 34 I.P.C. could not be maintained. It appears from a perusal of the judgment of the court below that there is no definite finding that it was Ram Narain applicant who had beaten Smt. Pargasi and had inflicted simple injuries on her. It appears that the conviction of Ram Narain has been made on the basis of his constructive liability. In view of the fact that only 2 persons, Ram Narain and Kamta, were charged Under Section 323 read with Section 34 I.P.C. and that Kamta has already been acquitted by the courts below, there is no question of any common intention between the applicant and Kamta, and in absence of such common intention Section 34 will not apply and the conviction of the applicant with the aid of this section cannot be maintained. It has not been alleged On behalf of the prosecution that besides Kamta there was any other person with whom the applicant Ram Narain had a common intention of beating Smt. Pargasi. In this connection reference may be made to a decision of the Supreme Court Prabhu Babaji Narle v. State of Bombay, 1956 AIR(SC) 51 It was held in this case that where the Appellant was charged Under Section 302 read with Section 34 I.P.C. for having shared the common intention of four named persons and for having participated in the crime, and the four persons were all acquitted, the element of sharing a common intention with them disappeared and unless it could be proved that he shared a common intention with the actual murderer or murderers he could not be convicted with the aid of Section 34. In view of this decision there is no doubt that the conviction of the applicant with the aid of Section 34 I.P.C. is incorrect and cannot be maintained.

(3.) This revision is, therefore, allowed and the conviction and sentence of the applicant Under Section 323 read with Section 34 I.P.C. is set aside. As he is on bail he need not surrender; his bail bonds are discharged.