JUDGMENT 1. - This appeal by the accused is directed against the judgment dated October 13, 1978, of the Sessions Judge, Jalore, convicting and sentencing the appellants for the offences under Section 367/34 and 326/34 Indian Penal Code to five years' rigorous imprisonment and a fine of Rs. 500/-, in default of payment of fine to six months' further rigorous imprisonment under each count and for the offence under Section 441/34, Indian Penal Code to one month's simple imprisonment and under Section 323/34, Indian Penal Code to six months' rigorous imprisonment. All the sentences have been ordered to run concurrently. 2. The case relates to the incident which took place in the night intervening 12th and 13th August, 1977 in village Narsana, District Jalore. The prosecution case, in brief, was that Bhera Rajput of Narsana, on the night of occurrence, was sleeping outside his Jhoonpa, accused Jelpa came there and woke him up and asked him as to why he was demanding money from him. Bhera told him not to pay the money but Jelpa sat on his chest. Accused Kalia, Dhalki and Japli also reached there. The prosecution case further was that Jepla tied an Angochha round his face and then took him to Jepla's house. There he was tied with a Thambli, and then Jepla inflicted a cut on his nose by a knife. A knife blow was inflicted on his ears and he was beaten with Halwani and also with lathis. On hearing the alarms of Bhera Chhogalal came to Jepla's Jhoonpa and then reported the matter to the police Constables Balwanta Ram and Dana Ram were sent there. They freed Bhera and took him to the Police Chowki. There a report was written and Bhera was sent to the hospital where his injuries were examined by Dr. Purshottam Dass Purohit. 10 injuries were found on his body, out of which two were by a sharp edged weapon and the rest were by a blunt weapon. The report was lodged at police station, Bhagoda on August 13, 1977 at 2.00 p.m. On this a case under Sections 326, 342 and 323, Indian Penal Code was registered. During investigation the accused were arrested. On August 15, 1977, on the information and at the instance of accused Jepla a knife was recovered and on the Information and at the instance of accused Kalia a lathi was recovered. During investigation the accused were arrested. On August 15, 1977, on the information and at the instance of accused Jepla a knife was recovered and on the Information and at the instance of accused Kalia a lathi was recovered. After investigation the police submitted a charge-sheet in the court of Judicial Magistrate, Bhinmal against the appellants and Mst. Dhalki. It is alleged that Mst. Jepla died a homicidal death. The learned Magistrate committed the accused to the court of Sessions for trial, where they were tried for the offences under Section 367/34, 341/34, 326/34 and 323/34, Indian Penal Code. When their plea was recorded the accused pleaded not guilty and claimed to be tried. 3. After trial the learned Sessions Judge, by the judgment dated October 13, 1978 convicted and sentenced the appellants as under: Under Section 367/34 5 years' R.I. and a fine of Rs. 500/- in default of payment of fine to 6 months' further RI; Under Section 326/34 5 years' RI and a fine of Rs. 500/- in default of payment of fine to 6 months' further RI; Under Section 341/34 One month's simple imprisonment; Under Section 323/34 Six months' RI. All the sentences were ordered to run concurrently. The learned Sessions Judge held that the version given by Bhera that the occurrence took place as he was demanding money from the accused was not acceptable. According to the learned Sessions Judge the real cause of the incident was that Bhera was having illicit relations with Jepli wife of accused Jepla. The learned Sessions Judge held that the injuries to Bhera were inflicted at the house of accused Jepla but he believed the prosecution story that Bhera was brought by the accused from his house to the house of Jepla. Aggrieved by the conviction and sentences passed by the learned Sessions Judge against the accused the present appeal has been filed in this Court. During the pendency of the appeal Mst. Dhalki expired and by the order dated August 3, 1987, this Court directed the appeal filed by her to have abated. 4. Appearing for the appellants Jepla and Kalia, learned Counsel Shri Bhandari has at the outset urged that the prosecution case that the accused went to the house oe Bhera and brought him to their own house during the night of occurrence is not at all believable. 4. Appearing for the appellants Jepla and Kalia, learned Counsel Shri Bhandari has at the outset urged that the prosecution case that the accused went to the house oe Bhera and brought him to their own house during the night of occurrence is not at all believable. There is force in the arguments of learned Counsel for the appellants. This part of the prosecution case is sought to be proved by the evidence of Bhera injured alone. No site plan in respect of the incident alleged to have taken place at Bhera's house was prepared during investigation. No supporting evidence is forthcoming. Bhera was a young man of 25 years of age. The distance between the house of Bhera and Jepla is about 100 Pawandas i.e. 500 ft. and the area is thickly populated. It is difficult to believe, argues learned Counsel, that while a young man would be forcibly carried, no one would hear and come to his rescue. It is also difficult to accept the prosecution version that two ladies, more particularly Mst. Jepli, would accompany the accused for bringing Bhera to their house. The prosecution case that the accused wanted to beat Bhera as the later was demanding money was not accepted by the learned Sessions Judge and rightly as it was an obvious improvement made in the court by Bhera. In his police statement, he had stated that he was having illicit relations with Mst. Jepli and had earlier taken her and kept her at Ahmedabad. This part was abondoned in the court and a new story regarding the demand of money was introduced. More over according to the prosecution all the accused went to the house of Bhera armed with Dhariyas and lathies and if so, why would they spare him while he was asleep and would take him to their house and inflict injuries there. To me, the prosecution story that the accused including the two ladies went to the house of Bhera and brought him forcibly to Jepla's house, does not appear to be free from suspicion. One cannot lose sight of the fact the deceased was earlier having illicit relations with Mst. Jepli and had taken her and kept her at Ahmedabad and there is nothing unusual if he again made an attempt to reach Jepli, and with that intent went to Jepla's house and was caught there by the accused. One cannot lose sight of the fact the deceased was earlier having illicit relations with Mst. Jepli and had taken her and kept her at Ahmedabad and there is nothing unusual if he again made an attempt to reach Jepli, and with that intent went to Jepla's house and was caught there by the accused. If this story of the accused going to the house of Bhera and bringing him forcibly to their house is disbelieved, the offence under Section 367/34, Indian Penal Code would fail against both the accused and to this extent I accept the contention of the learned Counsel for the appellants. 5. Taking the case of accused Kalia, learned Counsel has argued that the offence under Section 326 read with Section 34, Indian Penal Code is not made out against him. As per the prosecution allegations Kalia used a lathi in causing injuries to Bhera. I have already held that the prosecution case that the appellants brought Bhera from his house to the house of Jepla and then caused injuries to him is not acceptable. Jepla may have acted on his own in causing the knife injuries to Bhera but Kalia cannot be held by invoking the doctrine of vicarious liability. The provisions of Section 34, Indian Penal Code are not attracted as it is difficult to hold that Kalia shared the common intention with Jepla in causing the knife injuries to Bhera. The offence under Section 326/34 is, there fore, not made out against against the appellant Kalia. While not challenging the conviction of the appellant Kalia for the offence under Section 341 and 323 read with Section 34, learned Counsel urges that the sentence undergone by him i.e. one month 26 days should be treated as sufficient. I agree. When prosecution has not placed the real version how the occurrence started and how Bhera was found at Jepla's house the sentence already undergone by Kalia for the offence under Sections 341/34 and 323/34 will meet the ends of justice. 6. Lastly, taking the case of Jepla, counsel for the appellant, submits that Jepla has already remained in jail for over 8 months and it should be deemed sufficient. He does not challenge his conviction for the offences under Sections 326/34, 341/34, 323/34, Indian Penal Code but argues the question of sentence only. 6. Lastly, taking the case of Jepla, counsel for the appellant, submits that Jepla has already remained in jail for over 8 months and it should be deemed sufficient. He does not challenge his conviction for the offences under Sections 326/34, 341/34, 323/34, Indian Penal Code but argues the question of sentence only. In the facts and circumstances of the present case, more so, when that part of the story which says that the appellant brought the injured from his house is rot believed, and Bhera had earlier kidnapped the wife of the accused and kept her at Ahmedabad and may have entered the house of the accused himself, the sentence already undergone by him will serve the cause of justice. The occurrence took place as back as August, 1977. It is more than 10 years now. He has already undergone 8 months' 14 days. No useful purpose will be served to send him back to jail again. 7. Accordingly, the appeal filed by the accused appellants is partly allowed, the conviction of the appellants for the offence under Section 367/34, Indian Penal Code and the sentence awarded to them for the same are set aside, the conviction and sentence of accused Kalia for the offence under Section 326/34 are also set aside. The conviction of the appellant Jepla for the offences under Sections 326/34, 341/34 and 323/34, Indian Penal Code is maintained but the sentence awarded to him on these counts is reduced to the one already undergone by him, the conviction of appellant Kalia for the offence under Sections 341/34 and 323/34, Indian Penal Code is maintained, but his sentence for these offences is reduced to the one already undergone by him. The judgment passed by the learned Sessions Judge shall stand modified accordingly. The accused are on bail and need not surrender to their bail bonds which are, hereby, discharged.Appeal partly allowed. *******