- (1.) S. R. Bhargava, J. In this revision incident is alleged to have taken place on 2nd September 1977 at about 8 p. m. in a sehan of a house. Prosecution story was that on 31st August. 1977 in the absence of Mohd. Rafi, Ale Nabi, Mohd. Mian, Nanhey Mian and Muriney Mian asked the sons of Mohd. Rafi, who was a tenant in the house, to vacate the house failing which they will be finished. Hence, on the day and time of incident the four revisionists entered the house. Munney Mian was armed with knife. He inflicted knife blow injuring Mohd. Nabi. According to medical evidence adduced in the case by the prosecution injury of the injured was incised wound 2" x 1/10" x scalp deep of the top of head, and could have been caused at the time of incident. There was a cross case also. Defence case was that the revisionists were attacked and injuries were caused to Munney Mian. But evidence was not adduced for proving the injuries of Munney Mian.
(2.) BOTH the lower courts accepted the evidence adduced by the prosecution and convicted the revisionists with offence under Sections 452 and 324/34 I. P. C. The trial court sentenced the revisionists to rigorous imprisonment for one year and fine of Rs. 1000. 00 under Section 324/34 I. P. C. and further sentenced them to rigorous imprison ment for two years and fine of Rs. 1500. 00. In appeal conviction and sentences of the revisionists were confirmed. Being aggrieved revisionists came to this Court in the present revision. Learned counsel for the revisionists argued the case on merits and contended that conviction of the revisionists is not sustainable. He emphasized injuries alleged to have been received on the side of the revisionists. He argued vehemently about self defence. But it is unfortunate that the case of the revisionists was not properly conducted before the Magistrate. It is unfortunate to that the injuries of the injured on the side of the revisionists were not proved according to law. Hence the case of self defence is not open to the revisionists. But I have seen the site-plan, Exhibit Ka 2, prepared by Investigating Officer. It is evident from the evidence that the complainant side was tenant and the revision able side was the landlord of the same house and the two sides occupied different portions of the same house. The open land shown in the house was evidently the common sehan. The incident is alleged to have taken place in that sehan. When assault takes place in open land in joint possession of both the parties or in common use of both the parties there can be no question of trespass. I hold that the revisionists could not have been convicted with offence of trespass under Section 452 I. P. C.
(3.) A single injury was inflicted on the head of the injured by revisionists Munney Mian. No role was assigned to the other revisionists. I hold that even for offence under Section 324 I. P. C. common intention could not be attributed to revisionists Nanhey Mian, Mohd. Mian and Aley Hasan. Hence they could not be convicted with offence under Section 324/34 I. P. C. Only revisionists Munney Mian could be convicted with offence under Section 324 I. P. C. Hence conviction of all the revisionists for offence under Section 452 I. P. C. must be set aside. Conviction of revisionists Nanhey Mian, Mohd. Mian, and Aley Hasan for offence under Section 324/34 I. P. C. should also be set aside. Then question of sentence to be awarded to revisionists Munney Mian for offence under Section 324 I. P. C. arises. The dispute was between landlord and tenant. Incident took place about 14 years ago. Munney Mian hotly contested the case in two lower courts. There was also a cross case. Considering all these circumstances I am of the opinion that now sentence already undergone and fine of Rs. 50. 00 shall serve the ends of justice.;