JAIMANGAL Vs. EMPEROR

JUDGEMENT

(1.) This is an application by Jaimangal and three others for revision of an order passed by the learned Additional Sessions Judge, Gorakhpur, upholding their conviction and sentences under Section 325, I.P.C. The facts, concurrently found by the lower Courts, may be briefly stated. In village Gulahala, there are two factions, one headed by Ram Prasad and his brothers, and the other by Jaimangal. The parties are descendants of the same common ancestor, and are related to each other. They have been at loggerheads for a considerable length of time. On 11 November 1935, at about 11 a.m., there was an altercation, followed by a fight, in village Gulahala. Some men on both sides received injuries. Ram Prasad was not present at Gulahala, and one Ram Lakhan went to inform him of what had happened. Ram Prasad and Ram Lakhan proceeded to the Padrauna police station on bicycles. Two first information reports were made at the thana, one by Janu, who belonged to the party of Ram Prasad, and the other by Jaimangal. Ram Prasad left the thana after having had a talk with the Sub-Inspector. It is not clear whether the two reports, above referred to, had already been recorded before Ram Prasad left. He was accompanied by Ram Lakhan, as before. They were going to Gulahala. They were met on the way by Jaimangal and the other applicants, who delivered an attack on Ram Prasad with lathis. Ram Prasad received numerous injuries, including a grievous hurt. Ram Lakhan also received some injuries. Thereupon a third report was lodged at the thana. It was followed by police investigation resulting in the prosecution of the applicants who were convicted by the trying Magistrate of causing grievous hurt to Ram Prasad. Their appeal to the Sessions Judge was dismissed.

(2.) It may be noted that the gravamen of the charge against the applicant has no reference to the fight which took place in the village at. 11 a.m. It is confined to the assault on Ram Prasad. There was ample evidence in support of the story for the prosecution. In the trial Court the applicants denied having assaulted Ram Prasad, but in appeal they attempted to make out a case of right of private defence. The learned Sessions Judge has effectively disposed of this plea. The principal contention, put forward on behalf of the applicants by their learned Counsel before me, is that all the applicants cannot be considered to be guilty of causing grievous hurt to Ram Prasad, inasmuch as the evidence does not show which of the four applicants caused grievous hurt, which was the result of a single blow, and as, on the own showing of the prosecution, there was no premeditated design to cause grievous hurt. The lower Courts have had recourse to Section 34,I.P.C., to convict all the applicants under Section 325. Their view is based on the language of Section 34, which has been so construed as to apply to a case in which several persons combine to attack with lathis a common enemy and a blow dealt by one causes grievous hurt. It is argued by learned Counsel before me that, unless the evidence establishes that the applicants had conspired to cause grievous hurt to Ram Prasad, Section 34, cannot apply, and the only offence of which they can be convicted is one under Section 323, I.P.C. He has relied on some cases in support of his contention, to which I shall presently refer.

(3.) In my opinion, it is not necessary for the application of Section 34 to find that there was a pre-arranged plan of doing something which amounts to an offence. Common intention may be conceived of immediately before or at the time of the assault. In general, the precise intention of several persons acting in concert is a matter of inference from their conduct. In the case before me, the applicants attacked Ram Prasad as soon as they sighted him; all of them used their lathis. I think that it should be inferred that all of them became of one mind when they suddenly saw Ram Prasad and entertained the common intention of beating him with lathis. It is perfectly clear that they were animated by a common desire to beat Ram Prasad, with whose party there had recently been a fight and with whom they were on the worst of terms. The next question is whether it can be inferred from the conduct of the accused that their common intention was to cause grievous hurt to Ram Prasad, as distinguished from simple hurt. It is difficult to say that in the heat of the moment any of them applied his mind to the nature of the hurt which they should cause.