JUDGMENT The appellants have moved this Court feeling aggrieved by the judgment and order passed by Additional Sessions Judge-2 in Sessions Case No. 133 of 2010 of Amravati Sessions Division. Appellant No. 3 Sau. Gokula Ramchandra is wife of appellant No. 1 and appellant No. 2 Nitin Mankar is nephew of appellant Nos. 1 and 3. 2. Appellant Nos. 1 and 3 have been convicted for the offences punishable under Section 452 read with Section 34 and Section 307 read with Section 34 of the Indian Penal Code. Appellant No.1 is sentenced to suffer rigorous imprisonment for five years and fine of Rs.1,000/- in default to undergo simple imprisonment for one month for the offence punishable under Section 452 of the Indian Penal Code. Appellant No.2 is sentenced to suffer rigorous imprisonment for three years for the said offence and appellant No.3 is sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs.1,000/- for the said offence. As far as offence punishable under Section 307 is concerned, appellant Nos.1 and 3 have been sentenced to suffer rigorous imprisonment for ten years each and to pay fine of Rs.5,000/- each and appellant No. 2 is sentenced to suffer rigorous imprisonment for three years. Appellant No. 1 is also convicted for the offence punishable under Section 323 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for one year. All the substantive sentences are directed to run concurrently. 3. The prosecution story, in brief, before the trial Court was that Shrawan Murlidhar Mankar along with his children was staying at Sarmaspur, Tahsil and District: Amravati. Complainant Ujjwala is his daughter. Witness Atul Mankar is his son. The appellants were staying in the same locality in front of the house of Shrawan Murlidhar Mankar. One Ramrao Bhande was also staying in the same locality. It is alleged that appellant No. 1 was in a habit of drinking liquor regularly. Old quarrel between the appellants' family and family of Shrawan Mankar appears to be the cause for present incident. 4. It is alleged that appellant No. 1 on 9th February, 2010 some time after 6.00 p.m. had visited the house of Shrawan Mankar and had assaulted him by means of a stick. Appellant No. 1 inflicted stick blows on both the hands of Shrawan Mankar. Immediately thereafter wife of appellant No. 1 viz. Mrs. 4. It is alleged that appellant No. 1 on 9th February, 2010 some time after 6.00 p.m. had visited the house of Shrawan Mankar and had assaulted him by means of a stick. Appellant No. 1 inflicted stick blows on both the hands of Shrawan Mankar. Immediately thereafter wife of appellant No. 1 viz. Mrs. Gokula (appellant No. 3) had also came there armed with sickle and inflicted injuries on both the legs of Shrawan Mankar. She was followed by her nephew (appellant No. 2) who was holding a stick. He had allegedly inflicted stick blows on Shrawan Mankar. Shrawan Mankar had sustained injuries on his legs and hands. He could not be taken to hospital or Police Station for want of conveyance. The matter was reported to police on next day. It appears from record that the police had got intimation of the incident before the same was reported to the police by the complainant. Injured Shrawan was removed to hospital. His daughter Ujjwala had gone to Police Station and had lodged complaint against the police. Offences punishable under Sections 452, 326 and 307 and other sections of the Indian Penal Code was registered against the appellants and further investigation continued. During the course of further investigation statements of witnesses were recorded. Opinion of the medical officers in respect of injuries sustained by Shrawan was taken. At this stage it may be stated here that Atul the son of Shrawan Mankar, had also sustained minor injuries during the course of the incident. He was also medically examined during the course of investigation. After completion of investigation charge-sheet was filed in the Court of Magistrate and the case was committed to the Court of Session. Charge for the offences punishable under Section 307 read with Section 34 of the Indian Penal Code and Section 452 read with Section 34 of the Indian Penal Code was framed against all the appellants. Charge under Section 323 of the Indian Penal Code was framed against appellant No.1. All the appellants had pleaded not guilty to the charge and had claimed to be tried. 5. The prosecution had examined in all 11 witnesses during the course of trial in support of its case. Charge under Section 323 of the Indian Penal Code was framed against appellant No.1. All the appellants had pleaded not guilty to the charge and had claimed to be tried. 5. The prosecution had examined in all 11 witnesses during the course of trial in support of its case. P.W. 1 is complainant Ujjwala, P.W. 2 is injured Shrawan, P.W. 3 is Medical Officer who had examined P.W. 2, P.W. 4 is also Medical Officer who had examined P.W. 8 Atul, P.W. 5 is one of the neighbours of appellants and the complainant, P.W. 6 was present when spot panchnama was drawn, P.W. 7 is also panch witness, but he has not supported the prosecution case, P.W. 8 is son of P.W. 2, P.W. 9 is Police Officer who had visited the village and had taken P.W. 2 to hospital, P.W. 10 is one of the eyewitnesses staying in the same locality where the complainant and appellants were staying and P.W. 11 is Investigating Officer. 6. P.W. 1 in her evidence has narrated the incident in the manner stated in the first information report. She has stated that appellant No. 1 had entered their house and had inflicted stick blows on P.W. 2. Appellant No. 3 had inflicted sickle blows on the legs of P.W. 2. Appellant No.2 had inflicted minor injuries on P.W. 2. Similar evidence is given by P.W. 2 himself who was injured in the assault. Evidence of P.W. 1 was corroborated by P.W. 2, P.W. 8, who is brother of the complainant, is also an eyewitness. His evidence corroborates with the evidence of P.W. Nos. 1 and 2. There is one independent witness viz. Balu Raurale, who has been examined as P.W. 10, has not described the incident as detail as has been described by P.W. Nos. 1 and 2. He has stated that P.W. 2 was assaulted by the appellants. It is also stated by him that appellant Nos. 1 and 3 were holding sticks and appellant No.2 was holding sickle at the time of the incident. 7. During the course of arguments on behalf of the appellants, it was submitted by Dr. Kalsi that P.Ws. 1 and 8 are relatives of injured P.W.2. They are members of one and the same family and therefore, their evidence is considered to be the evidence of interested witnesses. 7. During the course of arguments on behalf of the appellants, it was submitted by Dr. Kalsi that P.Ws. 1 and 8 are relatives of injured P.W.2. They are members of one and the same family and therefore, their evidence is considered to be the evidence of interested witnesses. It was pointed out that P.W. 10 Balu Rourale is neighbour of the complainant and therefore his evidence also will have to be scrutinized with great caution and care. Dr. Kalsi has further submitted that it has come in the cross-examination of the witnesses that many persons had gathered on the spot after the alleged incident of assault and that the prosecution has not examined independent witnesses who had gathered on the spot during the course of the incident. It is also submitted by Dr. Kalsi that there are lot of omissions in the earlier statement of P.W. 1 recorded by the police. She has invited my attention to the cross-examination of P.W. 1 in which she was not able to give any explanation as to why the facts narrated by her do not find place in the report. 8. In the first place, let it be stated here that the omissions brought to the notice of P.W. 1 by the learned counsel for the appellant before the trial Court have not been proved as the investigating officer was not' cross-examined in respect of those omissions. Therefore, the omissions brought in the cross-examination of P.W. 1 cannot be taken into consideration as they have not been proved. 9. As far as contention of Dr. Kalsi that the witnesses are interested witnesses is concerned, it may be stated here that appellant Nos. 1, 2 and 3 had entered the house of P.W. Nos. 1, 2 and 8 and had assaulted P.W.2, Presence of P.W. Nos. 1 and 8 in the house was natural as both of them were children of P.W. 2. They are, therefore, natural witnesses to the incident. Their evidence cannot be discarded only on the ground that they are children of P.W. 2. If one goes through the evidence of P.W. Nos. 1, 2 and 8, it will be seen that they have described the incident absolutely in the natural way and there are no serious embellishment in their evidence. I do not see any reason to reject the evidence of any of these witnesses. If one goes through the evidence of P.W. Nos. 1, 2 and 8, it will be seen that they have described the incident absolutely in the natural way and there are no serious embellishment in their evidence. I do not see any reason to reject the evidence of any of these witnesses. As far as injuries are concerned, the evidence of P.W. 3 Medical Officer corroborates the evidence of P.W. Nos. 1 and 2 and 8. All the witnesses have stated that appellant No. 3 Gokula had inflicted sickle blows, appellant No. 1 had inflicted stick blows on hands of P.W. 2. The injuries noted by P.W. 3 are described in his evidence as under: 1. Cut size injury with fracture on right leg near fibula with tibia bone. Fracture near patella lower side, size 2" x 1" with 1" deep with bleeding fast Bone open fracture. 2. Cut size injury with fracture on left leg near fibula with tibia bone, fracture near patella (knee joint), size 2" x 1" with 2" deep with bleeding fast, bone open fracture. 3. Fracture humerus bone left hand near shoulder joint, lower side, no opening injury and bend bone. 4. Fracture humerus bone, right hand near shoulder joint lower side no opening injury and bend bone. 5. All over body mild blunt injury. The description of the injuries given by P.W. 3 in his evidence clearly establishes that the cut injuries were caused on both legs of P.W. 2 by means of weapon used for cutting. The oral evidence establishes that the sickle was used by appellant No.3. Therefore, the injuries described at Sr. Nos. 1 and 2 in the evidence of P.W. 3 have been caused by appellant No. 3. The injury at Sr. Nos. 3 and 4 i.e. fractures are caused by assault on the part of appellant No. 1. As far as appellant No. 2 is concerned, in my considered opinion, none of the injuries described at Sr. Nos. 1, 2, 3 and 4 had been caused by appellant No. 2. 10. All the appellants have been convicted for the offence punishable under Section 452 read with Section 34 of the Indian Penal Code. As far as appellant No. 2 is concerned, in my considered opinion, none of the injuries described at Sr. Nos. 1, 2, 3 and 4 had been caused by appellant No. 2. 10. All the appellants have been convicted for the offence punishable under Section 452 read with Section 34 of the Indian Penal Code. As far as conviction of the appellants for the offence punishable under Section 452 read with Section 34 of the Indian Penal Code is concerned, they cannot be convicted for the offence punishable under Section 452 read with Section 34 of the Indian Penal Code. However, they can be convicted for the offence punishable under Section 452 individually without the aid of Section 34 of the Indian Penal Code. Section 452 of the Indian Penal Code provides punishment for housetrespass committed after making preparation for causing hurt, assault or wrongful restraint to any person. In the present case, all the appellants had entered the house of the complainant which amounted to house trespass. All the appellants were armed with some or other weapon, therefore it can be said that they had made preparation for causing hurt. Therefore, their conviction for the offence punishable under Section 452 of the Indian Penal Code will have to be upheld, without aiding Section 34 of the Indian Penal Code. 11. As far as conviction of the appellants for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code is concerned, it may be mentioned here that though P.W. 2 was under control of the appellants for a considerable long time none of the appellants had made any attempt to cause any injury on any vital part of the body of P.W. 2. It, therefore, can safely be stated that there was no intention on the part of either of the appellants to cause death of P.W. 2 had suffered injuries for more than 24 hours. He was at his residence without any medical aid till next evening. Therefore, it cannot be said that the injuries sustained by P.W. 2 were sufficient to cause death in ordinary course of the nature. Though appellant Nos. He was at his residence without any medical aid till next evening. Therefore, it cannot be said that the injuries sustained by P.W. 2 were sufficient to cause death in ordinary course of the nature. Though appellant Nos. 1 and 3 had caused injuries which can be described as grievous hurt within the meaning of Section 320 of the Indian Penal Code, it is difficult to say that the appellant had intention to cause injury to P.W. 2 which was sufficient to cause death in ordinary course of the nature. Therefore, in my considered view, the conviction of the appellants for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code cannot be sustained. 12. Next question which arises for determination of the Court is, as to whether the appellants had shared common intention. After having examined the evidence of P.W. Nos. 1 and 2 carefully it can be said that there does not appear to be anything on record to show that there was meeting of minds of the appellants before entering the house of P.W. Nos. 1 and 2. There is no evidence to show that there was meeting of minds after entering the house of P.W. Nos. 1 and 2. It is clearly seen from the evidence that appellant No. 1 entered the house of P.W. 1 and 2 independently without knowledge of appellant Nos. 2 and 3. Therefore, the acts committed by appellant No. 1 cannot be attributed to appellant Nos. 2 and 3 with the aid of Section 34 of the Indian Penal Code. Appellant Nos. 2 and 3 cannot be vicariously held liable for the acts committed by appellant No.1. Similarly, the evidence further shows that the appellant No. 2 had entered the house independently without knowledge of appellant No. 3. It is also seen that appellant No. 1 had no knowledge or circumstances do not indicate that the stick was brought by appellant No. 2 with the knowledge or consent of appellant No. 1. Therefore, it can be said that the injuries inflicted by appellant No. 2 by means of sickle were without knowledge of appellant No. 1. Appellant No. 1 had not shared the intention of appellant No. 2 when appellant No. 2 had inflicted sickle blows on P.W. 2. Therefore, it can be said that the injuries inflicted by appellant No. 2 by means of sickle were without knowledge of appellant No. 1. Appellant No. 1 had not shared the intention of appellant No. 2 when appellant No. 2 had inflicted sickle blows on P.W. 2. At the same time, appellant No. 3 also cannot be said to have shared the intention as he had entered the house later in time. Appellant No. 2 is responsible for causing simple hurt to P.W. 2. 13. As such, since the common intention is not established it can be said that appellant No. 1 had caused grievous hurt to P.W. 2 by means of stick which is an offence punishable under Section 325 of the Indian Penal Code. Appellant No. 3 had caused grievous hurt to P.W. 2 by means of sickle which is a weapon used for cutting and therefore, she has committed offence punishable under Section 326 of the Indian Penal Code. As far as appellant No. 3 is concerned, he has committed offence punishable under Section 323 of the Indian Penal Code. The appellant No. 1 has independently been convicted for the offence punishable under Section 323 of the Indian Penal Code for having caused simple hurt to P.W. 8, P.W. 8 has stated in his evidence that appellant No.1 had inflicted a stick blow on him. The conviction of appellant No. 1 for the offence punishable under Section 323 of the Indian Penal Code is, therefore, maintained. 14. The conviction of appellants for the offence punishable under Section 307 read with Section 34 as well as Section 452 read with Section 34 of the Indian Penal Code wil1 have to be set aside. The appellants wil1 have to be convicted for the offence punishable under Section 452 simplicitor for independently having committed trespass in the house of P.W. Nos. 1 and 2 after having made preparation for causing hurt. Appellant No. 1 Ramkrushna Raurale will have to be convicted for the offence punishable under Section 325 of the Indian Penal Code and appellant No.3 Gokula will have to be convicted for the offence punishable under Section 326 of the Indian Penal Code. Appellant No. 2 is found guilty of the offence punishable under Section 323 of the Indian Penal Code simplicitor. Appellant No. 2 is found guilty of the offence punishable under Section 323 of the Indian Penal Code simplicitor. Appellant No. 1 is also found guilty of the offence punishable under Section 323 of the Indian Penal Code for having caused simplicitor hurt to P.W. 8. In view thereof, I pass the following order. 15. The appeal is partly allowed. The final order of the learned trial Court is modified as under: i) Appellant No. 1 Ramkrushna Purnaji Raurale, appellant 2 Nitin Ramesh Mankar and appellant No. 3 Sau. Gokula Ramkrushna Raurale are convicted for the offence punishable under Section 452 of the Indian Penal Code and are sentenced to suffer imprisonment for a period of three months each and to pay fine of Rs.500/- each, in default to undergo simple imprisonment for one week. ii) Appellant No. 1 Ramkrushna Raurale is convicted for the offence punishable under Section 325 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs.5,000/- in default to undergo simple imprisonment for one month. iii) Appellant No. 2 Nitin is convicted for the offence punishable under Section 323 of the Indian Penal Code and is sentenced to suffer imprisonment already undergone by him. iv) Appellant No. 3 Smt. Gokula Ramkrushna Rourale is convicted for the offence punishable under Section 326 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for a period of 30 months and to pay fine of Rs.5,000/- in default to undergo simple imprisonment for one month. v) Appellant No. 1 is further convicted for the offence punishable under Section 323 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for one month and to pay fine of Rs.100/- in default to undergo simple imprisonment for eight days. vi) The substantive sentences imposed on the appellants shall run concurrently. vii) Fine, if paid, in excess' of the fine imposed by this Court shall be refunded to the appellants. viii) Set off be given for the period already undergone by the appellants. ix) The order of the learned trial Court in respect of payment of compensation to P.W. 2 Shrawan Mankar is maintained. As such the fine amount received from the appellants shall be paid to P.W. 2 by way of compensation. The appeal stands disposed of accordingly. Appeal partly allowed.