BASUDEO MISTRY Vs. MAHENDRA THAKUR

JUDGEMENT

(1.) This application is directed against the concurrent findings of the two courts below, by which the petitioners have been found guilty for the offence punishable under Sections 323/34 of the Indian Penal Code (hereinafter to be called as the said Code) and each has been sentenced to pay a fine of Rs. 5001-, in default to undergo simple imprisonment for 20 days each.

(2.) The prosecution case briefly stated is that while, the complainant was going to his shop the petitioners surrounded him. Thereafter Ram Khelawan Mistri (petitioner No.4) ordered to assault the complainant, upon which all the petitioners assaulted him by fists and slaps.

(3.) The learned counsel for the petitioners has mainly confined his argument on the appreciation of the evidence. It has been rightly argued that for an offence under Section 323 of the said Code, application of Section 34 of the said Code does not appear to be correct. It is because when there is assault on the back of the complainant, which is an offence under Section 323, the question of common intention in furtherance of assault did not arise at all. In order to apply Section 34 of the said Code which is for common intention posture and gesture are essential. However, I am inclined to accept that the occurrence has not been stated correctly. It is because the was no occasion for the petitioner Ram Khelawan Mistri to assault the complainant if he had ordered to assault. There was also no occasion for starting assault only after the order to assault.