MOHAN SINGH AND OTHERS Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) These two criminal appeals No. 357/74 filed by the accused-appellants and 812/1975 filed by the State of Rajasthan, arise out of a common judgment dated May 18, 1974, delivered by learned Additional Sessions Judge, Gangapur City and as such they are being disposed of by a common judgment.

(2.) The facts giving rise to these appeals are that a quarrel took place between the parties on 17th June, 1973. During the course of that occurrence Ram Bharosey, Kailash Chandra, Brij Mohan and Babu Shyam sustained injuries on the side of the complainant whereas on the side of the accused Mohan Singh, Kishan Singh, Gopal Singh and Shiv Singh sustained injuries. Shiv Singh succumbed to his injuries whereas rest of the injured are appellants before us. All the three accused appellants in Appeal No. 357/1974 were tried by the learned Additional Sessions Judge, Gangapur City under Sections 307, 325, 323 read with Sec. 34 IPC. The learned Additional Sessions Judge after appreciation of the evidence on record came to the conclusion that a case of common intention for causing injuries to the members of the complainant party was not made out and each accused could be held responsible for the injuries caused by him. He further held that there was cogent and reliable evidence on record to hold as to which of the accused inflicted the grievous hurt on the person of Ram Bharosey. On the basis of the above findings he acquitted all the appellants of all the charges except under Sec. 323 IPC. They were convicted under Sec. 323 Penal Code and each one of them was sentenced to six months' rigorous imprisonment by his judgment dated May 18, 1974. Being aggrieved with the above judgment both the parties have come up in appeal.

(3.) We have heard learned Public Prosecutor for the State at considerable length and have examined the judgment of the trial Court on the line of arguments advanced before us. Admittedly both the parties sustained injuries during the course of same quarrel. Nothing has been urged before us on the basis of which it can be said that the members of the accused party formed a preconcert to attack the members of the complainant party. There is always a distinction between a common intention and similar intention. The distinction is thin but real. The common intention can develop during the course of an occurrence. But there has to be content material on the basis of which the court can arrive at that finding and upheld an accused vicariously liable for the act of the other accused by invoking Sec. 34 IPC. We are of the opinion that the learned trial Judge was correct in holding that the prosecution has not been able to make out a case by which it can be said that the accused formed a common intention to commit assault on the person of the above noted injured viz., Ram Bharosey, Kailash Chandra, Brij Mohan and Babu Shyam.