M.C.JAIN, J. - (1.) ALL these three appeals arise from the judgment and order dated 16 -9 -1981 passed by the then III Additional Sessions Judge, Bijnor in ST No. 352 of 1980. The three accused appellants in represented appeal are Gambhir Singh and his two sons Sukhey Singh and Vijai Singh who had been convicted under Section 324 IPC read with Section 34 IPC and sentenced imprisonment till rising of the Court as also to pay a fine of Rs. 400 each and in default, they were ordered to undergo three months' rigorous imprisonment. It was further directed that out of the total amount of fine of Rs. 1,200 a sum of Rs. 200 would be paid as compensation to the injured Natthu Singh. They were acquitted of the charge under Section 307 read with Section 34 IPC.
(2.) AGGRIEVED by their conviction and sentence, they have come up before this Court of appeal. Government Appeal No. 2863 of 1981 has been filed by the State for enhancement of the sentence and Government Appeal No. 3164 of 1981 has been filed against their acquittal under Section 307 IPC read with Section 34 IPC. The three appeals are being decided by this order. The prosecution case was that the complainant Ram Singh PW 3 belonged to village Firozpur Mubarak alias Naya Gaon to which the accused belonged. Manure pits of each of the parties were adjacent to each other. On 10 -8 -1979 at about 4.00 p.m. accused were taking out manure from the complainant's pit and dumping the same in their own manure pit. When the complainant raised objection, the accused -Gambhir Singh armed with lathi and his two sons Sukhey Singh and Vijay Singh, each armed with spade fell upon him and his father Natthu Singh causing injuries to them. The witnesses Sumer Singh PW 4 and Satvir Singh both residents of village reached on the shouts of the victims and then the accused ran away. The FIR was lodged by Ram Singh injured, the same day at 5.25 p.m. The case was registered. Ram Singh and his father Natthu Singh (both injured) were medically examined at the behest of the police at 6.10 p.m. and 6.20 p.m. respectively by Dr. B.B. Sharma PW 1. Ram Singh had received three minor injuries in the form of two abrasions and one abraded contusion which were superficial. Natthu Singh had received five injuries one incised wound, one lacerated wound, one contusion and two swellings. The last injury which was a swelling on the left hip joint was kept under observation and X - ray was advised. The rest were simple, the incised wound having been caused by a sharp edged weapon and others by blunt object. After investigation by Gajraj Singh PW 2, charge -sheet was submitted. The defence was of denial.
(3.) AT the trial, Ram Singh PW 3 injured and Sumer Singh PW 4 were examined as eye -witnesses apart from Doctor and Investigating Officer. The trial Court concluded that the injuries of Ram Singh were superficial and could be self -inflicted also. However, Natthu Singh had received five injuries. Though no X -ray was produced in respect of injury No. 2, kept under observation, nevertheless one of the injuries had been caused by sharp edged weapon. The prosecution case was accepted that the three accused shared common intention of each other and two of them were armed with spades (sharp edged). The injuries of Natthu Singh being also simple, having regard to the evidence as also the seat of the injuries, the trial Court found the accused to be guilty of offence under Section 324 IPC read with Section 34 IPC and convicted and sentenced them as stated hereinabove.;