JUDGMENT 1. - The four appellants before us have been convicted for the offences under Sections 326/34 and 323/34 IPC and sentenced as under:- U/s. 326/34 IPC Three years rigorous imprisonment and a fine of Rs. 500/- cash and in default of payment of fine to further undergo 3 months rigorous imprisonment. U/s. 323/34 IPC Six months rigorous imprisonment each. 2. Both the sentences have been ordered to run concurrently. Against this conviction and sentence passed by the learned Additional Sessions Judge Dewas (Camp Jaipur) on 1st Sept. 1989, these appellants have preferred this appeal. 3. The facts in brief may be looked into first and they are that the accused as well as the injured Top Singh (PW 1) and Hanuman Singh (PW 4) are the decedents of one Bagh Singh and there are property disputes between them. Litigation in this regard is also pending between them. On 9th July, 1979, the incident occurred, First the appellants abused Hanuman Singh at about 12.00 noon while he was returning from the market. Thereafter in the evening on the same day at about 7.00 P.M. Top Singh asked the present appellants as to why they were abusing Hanunam Singh and they said that they would give 'Prasadi' to him (Top Singh) also. Then at 11.00 PM. on the same night when Top Singh and Hanuman Singh were sleeping in their houses, the four appellants came there, shouted abuses and challenged them to come out. Upon this, Top Singh and Hanuman Singh opened the door and came out. They found that the appellant Gulab Singh and Mahendra Singh were armed with `Fareias', Sumar Singh had a sword hanging an his neck while he had a lathi in his hand and the appellant Mahendra Singh had a lathi in his hand. All of them started beating Top Singh and Hanuman Singh. A farahi blow was given by Gulab Singh on the head of Top Singh while the appellant Mohan Singh gave a farshi blow on the head of Hanuman Singh. The others gave lathi blows. On the intervention by some persons, the accused persons ran away and the injured were taken to the hospital. 4. The injuries of Top Singh and Hanuman Singh are as under:- X X X X The injuries have been proved by P.W. 2, Dr. Shendra Shekhar Sharma who examined the injured and PW 2, Dr. The others gave lathi blows. On the intervention by some persons, the accused persons ran away and the injured were taken to the hospital. 4. The injuries of Top Singh and Hanuman Singh are as under:- X X X X The injuries have been proved by P.W. 2, Dr. Shendra Shekhar Sharma who examined the injured and PW 2, Dr. Radhey Shyam Modi Radiologist, who took the X-rays and found that the injury No. 1 of both the injured were grievous as they had caused fractures. 5. Three eye witnesses have been examined in the case but it may be stated here that the learned trial court has not given much credence to their statements as according to him they were not eye witnesses but had come after the incident had taken place. These witnesses were also found to be interested witnesses. It has been stated for the witnesses that they tried to become eye witnesses, though they were not there when the beating took place. 6. On the basis of the testimony of Top Singh (PW 1) and Hanuman Singh (PW 4), the learned Sessions Judge arrived at the following conclusions : (1) that incident took place before the house of Mangoo Singh. (2) that accused Mohan Singh gave only one Farshi blow on the head of PW 4, Hanuman Singh and accused Gulab Singh on the head of PW 1 Top Singh and these two blows have caused fractures in their heads. (3) rest of the accused gave lathi blows to both of them. (4) that all the accused came together to the house of PW 1 Top Singh armed with weapons and before the actual incident of beating some altercations between accused persons and PW 1 Top Singh and PW 4 Hanuman Singh had already taken place; (5) that the alleged eye witnesses have not seen the occurrence though they could be regarded as witnesses to subsequent facts; (6) that the accused did not use the sword; (7) that in that beating the accused Gulab Singh also received injuries: (8) that the accused Gulab Singh and Mohan Singh after giving on farshi blow each retreated back; and (9) that there is no verbal statement from the side of the accused before the beating in the term that these injured be killed. The learned Sessions Judge also held that all the accused persons came armed and participated in the beating given to the injured persons therefore, all would be liable for the act of each accused. A charge against the accused for the offence under Section 307 IPC was also framed but this was held to be not proved. Instead the appellants were found guilty of the offences under sections 326/34 and 323/34 IPC & stated above. 7. The learned counsel for the appellants has contended that the incident is said to have taken place at 11.00 PM when the night was dark and it was not possible to see as to which accused gave the blows. It is argued that there were no independent witnesses of the incident and as such, the version of the injured persons without reiteration by some other evidence, should not be believed. In this respect, special reference has been made of the injuries of the appellant Gulab Singh, for which no explanation has been offered by the witnesses. Besides this, it is contended that no weapons have been recovered from the accused so as to hold that they had used Farahias and lathies in giving beating to Top Singh & Hanuman Singh. Referring to the statements of these witnesses, wherein they have deposed that Sumar Singh had a sword hanging on his neck, it has been contended that this sword was not used, therefore, it cannot be said that there was prior consent of mind or common intention of all the accused to cause grievous injuries. On this point it has been contended that Sumar Singh and Mahendra Singh cannot be convicted for the offence under Section 326/34 IPC. 8. Much has been argued about the place where the incident took place. The front of the house of the P.W.5 (Mangoo Singh) can be said to be the place some what equi-distant from the houses of the accused party and the complainant party. Exact distance has not been shown in the side plan Ex. P. 5 but from the statements of the witnesses it can be said that it is 100 yards away from the house of the complainant and the houses of the appellants. Exact distance has not been shown in the side plan Ex. P. 5 but from the statements of the witnesses it can be said that it is 100 yards away from the house of the complainant and the houses of the appellants. It has been contended that the story, that the appellants had gone to the house of the injured to give them beating cannot be supported because the injuries were inflicted infront of the house of Mangoo Singh. 9. The learned Public Prosecutor has supported the findings arrived at by the learned Sessions Judge and has contended that both Top Singh & Hanuman Singh had incised wounds on their heads which resulted in fractures and these blows have been attributed to Mohan Singh & Gulab Singh and this stands proved by the statement of witnesses. It has been contended that there are no material contradictions in the statements of witnesses and there is no cover implication or false allegation in the case. As for the injury of accused Gulab Singh it is stated that non-explanation of the same does not go to show that the incident did not take place at all. According to him this is immaterial in this case as the injuries of Gulab Singh are only two out of which one is a lacerated wound on the parietal region and another is contusion on the left scapular region. 10. I have examined the record of the case and the contentions raised from both the sides and it can be said that the statement of PW 1, Top Singh and PW 4, Hanuman Singh are quite consistent in proving as to how the incident occurred. They came out of their house when the appellants shouted. If the blood stained soil was found at the house of Mangoo Singh the whole incident would not become false as the person assaulted would try to save one self and would naturally move about and try to escape the assailants likely follow them. There is no suggestion any where that it was the complainant party which had gone to the house of the appellants to give beating to Gulab Singh and thereafter the appellants acted in self defence. The suggestion put to PW 1, Top Singh is that Gulab Singh was beaten by farehies when he has not received any blow by a sharp edged weapon. The suggestion put to PW 1, Top Singh is that Gulab Singh was beaten by farehies when he has not received any blow by a sharp edged weapon. In this case it cannot be said that non-explanation of the injuries of Gulab Singh goes to the very root of the case and the result is that the persecution has suppressed the genesis and opinion of the occurrence. Before looking into the decisions which have been cited by the parties, it can be said that the present case is not a case where any person died and the injured persons are available for making their statements and to face cross-examination. When their testimony has not been shaken in their cross-examination, their version cannot be discarded merely because they have not admitted or explained the injuries of Gulab Singh. The place of occurrence can be said to be very material for any incident and in the present case it is not the house of either the appellants or the complainant party and on the basis of conjecturen it cannot be submised that the complainant party was aggressor and the appellants acted in self defence. 11. The next question which arises is whether all the accused can be said to be liable for the act of Gulab Singh and Mohan Singh. For the appellant Sumar Singh it is contended that he had as word with him but this sword was not used, hence it cannot be said that he had the intention of causing grievous injury by sharp weapon. He has used a less dangerous weapon viz. lathi and the blows were also not inflicted on vital porte. Considering this aspect thus this accused did not himself attempt a blow with sharp weapon. I am inclined to accept this contention and I hold that the appellant Sumar Singh is guilty of the offence under section 323 IPC only and he cannot be said guilty under section 326 IPC with the aid of Section 34 IPC. 12. The common intention of the parties can be judged on basis of the injury caused or on the basis of evidence about prior consent or on the basis of something which is said at the time of occurrence. Without specific evidence it cannot be said that the common intention of the accused was to cause grievous injuries by sharp weapon. The common intention of the parties can be judged on basis of the injury caused or on the basis of evidence about prior consent or on the basis of something which is said at the time of occurrence. Without specific evidence it cannot be said that the common intention of the accused was to cause grievous injuries by sharp weapon. The accused caused grievous injuries and the others did not attempt in do so. The main accused Mohan Singh and Gulab Singh did not repeat the attack after inflicting one blow each. Without elaborating it can be said that the common intention could be to give simple beating and Mahendra Singh would also fall in the category of having intention to cause simple injuries. 13. The result is that the conviction of the appellants Gulab Singh and Mohan Singh for offence under section 326 IPC is maintained and the conviction of Sumar Singh and Mahendra Singh for the offence under section 323 IPC is maintained. 14. Now, comes the question of sentences. The learned counsel for the appellants has stated that the accused appellant Gulab Singh has remained in custody for more than four months and the other appellants have also remained in custody for some time. Gulab Singh is employed in the Indian Army. The accused appellant Mohan Singh is also employed in the Central Government. In this connection, reliance has been placed on Ganesh Lal v. State of Rajasthan, 1985 WLN (UC) 497 where for the offence under section 326 IPC, the accused was let of on the period for which he had already remained in custody and had faced trial for nine years. 15. Similarly in Damodar Prasad v. State of Rajasthan, 1989 RCC 22 sentence under section 326 IPC was reduced to the term already undergone. 16. In Naib Singh v. State of Punjab, 1986 Cr. L.R. 468 (SC) , the conviction of the appellant for the offences under section 326 IPC was maintained but considering the fact that he was a teacher in a Government School, the sentence was reduced to imprisonment till the rising of the court and a fine of Rs. 5,000/- was imposed. In Naib Singh v. State of Punjab, 1986 Cr. L.R. 468 (SC) , the conviction of the appellant for the offences under section 326 IPC was maintained but considering the fact that he was a teacher in a Government School, the sentence was reduced to imprisonment till the rising of the court and a fine of Rs. 5,000/- was imposed. On this basis the learned counsel for the appellants has contended that Gulab Singh is employed in the army and Sumar Singh is a Government servant while Mohan Singh is in para-military services and if they are sent in custody would effect their services. Considering the circumstances as a whole, the sentence can be passed after taking a lenient view. 17. The conviction of Gulab Singh and Mohan Singh under section 326 IPC is maintained. Their sentences are reduced and they are sentenced to imprisonment till the rising of court and a fine of Rs. 2,000/- on each is imposed. This fine shall be deposited within the period of three months from today failing which each of them has to undergo three months simple imprisonment. The conviction of Sumar Singh for the offence under section 323 IPC is upheld and he is acquitted of the offence under section 326 IPC. He is sentenced u/s. 323 IPC to a fine of Rs. 500/- to be deposited within three months from today failing which he shall undergo simple imprisonment for one month. 18. The accused-appellant Mahendra Singh is acquitted for the offence under section 326 IPC but his convincation for the offence under section 323 IPC is maintained. He was about 16 years of age at the time of incident. He is therefore, released on probation of good conducts. He shall enter into a bond with one surety in the sum of Rs. 3,000/- to appear and receive sentence when called upon during the period of two years and in the mean time he shall keep peace and be of a good behaviour. He shall execute the bond within three months from today. 19. With these observations this appeal is disposed of. The appellants are on bail and they need not to surrender. *******