AMARLAL AND ANR. Vs. THE STATE OF RAJASTHAN

JUDGEMENT

(1.) The prosecution case as disclosed at the trial is that a day prior to the date of the occurrence accused Chatra uprooted the gram crop from the field of Gordhan. Gordhan went to make a complaint about the act of Chatra to his father Moti, which infuriated the accused Chatra. It is alleged that on Feb. 11, 1973 when Gordhan was passing in front of the house of Chatra, the two petitioners along with their father Motilal with a common intention to assault, rushed towards Gordhan and Chatra inflicted a lathi blow on the head of Gordhan as a result of which he fell down. Prabhu, brother of Gordhan came to rescue him, but he was also not spared and as many as seven injuries were inflicted on his person, out of which two were found to be grievous. The learned Magistrate placing reliance on the statements of the two injured persons corroborated by the statements of Kalyan, Peeru and Kedar and Dr. Virendra as well as the injury reports convicted the three accused namely, Moti, Chatra and Amara under Sections 325 rendered with Sec. 34 and Sec. 323 Penal Code and sentenced each them to one year's rigorous imprisonment and a fine of Rs. 500/ each under section 325/34 Penal Code and to 3 months' rigorous imprisonment and a fine of Rs. 100.00. each under Sec. 323 Penal Code by his judgment dated May 23, 1977. The substantive sentences of imprisonment under both the counts were ordered to run concurrently.

(2.) Being aggrieved with the conviction and sentence all the three convicts went up in appeal, which came up for decision before the learned Additional Sessions, Judge, Baran, who by his judgment dated Oct., 12, 1977 partly accepted the appeal. He acquitted accused Moti of all the charges framed against him. The conviction of accused Chatra and Amara under Sec. 325/34 Penal Code was maintained, but the sentence awarded to them was reduced from one year's rigorous imprisonment and a fine of Rs. 500.00. which to six months' simple imprisonment and a fine of Rs. 500.00. As both the accused were convicted under Sec. 325 Penal Code the learned Sessions Judge did not award any sentence to them under section 323 IPC. Hence this revision.

(3.) The learned counsel appearing on behalf of the petitioners has urged that accused Moti was acquitted by the learned Additional Sessions Judge. The evidence against accused and the petitioners being of the same persons cannot be termed to be sterling worth. The evidence of the injured witnesses is of interested persons and their statements cannot be held to be sufficient for convicting the accused under Section, 325/34 IPC. There is no evidence on record to hold that grievous hurt was caused by both the accused in furtherance of the common intention. Similar intentions are required to be distinguished with common intention and as such both the accused. petitioners can at the most be convicted under Sec. 323 Penal Code and not under Sec. 325/34 IPC.