JUDGMENT 1. - This is a revision application directed against the judgement of the learned Additional Sessions Judge No. 2 Jaipur City, dated August 3, 1971 whereby he partially maintained the judgement of the learned Additional Munsif Magistrate No. 4, Jaipur city, convicting the two applicants Kana and Ramnath before me, as under:- 1. Kana : u/s 325 IPC sentenced to 3 months RI and a fine of Rs. 100/-, in default, one month RI u/s 451, Indian Penal Code sentenced to 3 months RI and a fine of Rs. 100/-, in default, one month RI. 2. Ramnath : u/s 323, Indian Penal Code sentenced to 1 month RI and a find of Rs. 100/-, in default, one month RI u/s 451, Indian Penal Code sentenced to 1 month RI and a fine of Rs. 100/-, in default, one month RI. 2. The circumstances which have led to this revision application briefly stated are these. 3. The ladies belonging to the party of the applicants and that of the complainant had some quarrel on November 5, 1965 but it was a mere wordy warfare and that arose on account of the fact that certain cattle had trespassed, but this was enough to provide the bone of contention. At about 10-11 p.m. in the night when complainant Chootu and his son were sleeping Bhola and his sons Kanaram, Ramnath, Ramnarain and Bhoora went to their house shouting abuses and when they were asked not to abuse they stated beating them with farsi and lathis. Ram Sahai and complainant's wife and others are said to have intervened but they are also said to have been injured. Consequent to first information report a case was registered by the police and the learned Additional Munsiff Magistrate No. 4 Jaipur City found all the five persons guilty under sections 323, 325 and 451, Indian Penal Code. An appeal was taken which came to be decided by the learned Additional Sessions Judge who acquitted Bhola, Ramnarain and Bhoora accused but maintained the convictions and sentences of Kana and Ramnath as already stated at the out set. Aggrieved, they are before me. 4. Mr. Garg appearing for the applicants urged firstly that infliction of grievous injury is not proved against Kana. Aggrieved, they are before me. 4. Mr. Garg appearing for the applicants urged firstly that infliction of grievous injury is not proved against Kana. The reason, urged the learned counsel, is that Kana was armed with a farsi and the grievous injury has been caused on left hand 2nd meta carpel shaft which had no lacerated wound not withstanding the fact that the witnesses are clear that farsi was used from its edged side. 5. Learned Additional Advocate General urged that who ever may have caused the injury but by virtue of section 34, Indian Penal Code, Kana can be held to be guilty under section 325, Indian Penal Code. 6. There was no charge for common intention. In the circumstances, I am unable to conclude common intention for a variety of reasons, the primary being that after all it was women' quarrel and there could have been different intentions in the minds of different persons. The positive evidence is that people other than Kana had hurt Bhoora on his hand and caused fracture of 2nd meta carpel shaft, but in the absence of positive evidence it will be extremely difficult to hold Kana guilty under section 325, Indian Penal Code, and I accordingly, acquit him of that charge. 7. The charge under section 323, Indian Penal Code, abundantly proved. The evidence is consistent that Kana had gone there armed with a farsi and had used it and normally one does not go with a farsi at late hours in the night for innocent purposes. I therefore, maintain his conviction under section 323, Indian Penal Code. 8. Likewise, Ram Nath was also one of the companions who had gone armed with a lathi at 11 P.M. is no time make any friendly visit unless it was a case necessitated on account of some domestic distress. The prosecution evidence is consistent against him and I, therefore, maintain his conviction under section 323, Indian Penal Code. 9. Now, remains the conviction under section 451, Indian Penal code. Learned counsel for the applicants argues that a 'gowari' is not a house because the one in the instant case, was not used as dwelling house or for the custody of the property. 9. Now, remains the conviction under section 451, Indian Penal code. Learned counsel for the applicants argues that a 'gowari' is not a house because the one in the instant case, was not used as dwelling house or for the custody of the property. According to Wali Mohammed v. Emperor, AIR 1929 Sind 17 (2) "a building within the meaning of Sections 380 and 452 includes a structure whether covered or not and made of any materials whatsoever. It will be, therefore, difficult to escape the conclusion that it was a case under Sections 451, Penal Code, and I am not going to reappraise the evidence as suggested by the learned counsel for the applicants. I accordingly, maintain the conviction under section 451, Indian Penal Code. 10. Now, remains the question of sentence Both the applicants have already undergone about 29 days imprisonment. I think, if they are sentenced under sections 323 and 451, Indian Penal code to the period of sentence already undergone by them it will amply serve the ends of justice, because in view of the glaring fact that the incident took place as far back as 1935 no useful purpose would be served in sending them back to jail for a while ten years after the incident. So far as the question of fine is concerned, fine under section 323, Indian Penal code, is set aside. Fine under section 451, Indian Penal Code is however, maintained. Kana and Ram Nath shall deposit the amount of fine (Rs. 100/- Rupees One hundred each) within one month from today in the Court of the Additional Munsiff Magistrate No. 4 Jaipur City, Jaipur, failing which they shall undergo 15 days rigorous imprisonment each. 11. The revision is thus partially accepted an indicated above. *******