Ranawat, J. - (1.) THIS appeal has been filed on behalf of the accused Sakhat Singh, Harnath Singh, Prahlad Singh and Umrao Singh against the judgment of the Sessions Judge, Alwar, dated the 20th March, 1950 by which all the four accused appellants were convicted of an offence under sec. 325 read with sec. 34 I. P. C. and sentenced to seven years' rigorous imprisonment each.
(2.) IT was alleged on behalf of the prosecution that on the 29th of September, 1949 at about 10 P. M. while both the parties were drinking wine on the eve of Dasehra in village Chenpura a quarrel arose between Imrat Singh and Gobind Singh. Imrat Singh's mare ran away and he cried that he was helpless and if the mare trespassed into the fields belonging to any one he might take care of it. Gobind Singh who was also present there took objection to this and told Imrat Singh that he had intentionally let loose the mare and was then raising a false cry. Both of them exchanged abuses and then began fighting with each other. In the mean time having heard the shout of Gobind Singh 10 persons Sakhat Singh, Harnath Singh, Umrao Singh and others came on the spot armed with lathis, pharsis, jelis etc. , and they began beating Imrat Singh and his party. Kishan Singh also came there and he tried to stop the fight but the accused persons and their companions took no notice of his request and began to belabour him with lathis. He received two injuries, one on his head and the other on his wrist. As a result of the head injury, he died on the spot. First information report was lodged at the Police Station, Naraina. The next morning at about 10 A. M. by one Ramchandra Singh. The police after completing investigation challaned 11 persons, all of whom were committed to the court of Sessions by the Magistrate. The accused have pleaded that they know nothing of this occurrence and in defence they have produced certain witnesses to prove alibi. The trial court has put reliance on the statements of two witnesses Sardar Singh and Gahar Singh, who are said to be independent witnesses. The other four witnesses who were also injured in this incident have not been believed in entirety on the ground that they were interested persons. In view of the injury that was received by Kishan Singh and in view of the fact that there was no evidence as regards the accused who inflicted the fatal injury, the trial court came to the conclusion that all the four accused appellants should be convicted of an offence under sec. 325 read with sec. 34 I. P. C. The learned counsel of the accused appellants has contended that there was no material on the record of this case to justify a finding of the trial court against the accused that there was common intention, in pursuance of which the accused gave a beating to Imrat Singh or Kishan Singh or to his other companions. He has in support of his plea in this behalf cited Mahbub Shah vs. Emperor (A. I. R. 1945 P. C. 118) and Mukhsur Kahman and another vs. The King (A. I. R. 1950 Assam 98 ). It may be observed that even though Ramchandra Singh and Imrat Singh give a different version as regards the occurrence the other witnesses have all stated that the party of the accused came out instantaneously when they heard the shout of Gobind Singh. Taking this to be correct, there was hardly any opportunity for the accused persons to confer among themselves and to plan an attack against the party of Imrat Singh. What appears to have happened is that as soon as the accused persons heard the shout they ran to the spot and took with them such weapons as they could lay their hands on at that time. The accused persons may have been inspired by similar motives to help the person who was shouting for help but this cannot be taken to mean that they were inspired by a common intention. Common intention always presupposes some plan or some design to commit an act, which has not been proved in the present case. The statements of Ramchandra Singh and Imrat Singh are to the effect that some boy was sent with the information that Gobind Singh was being beaten and the accused persons came out armed with weapons and on the command of Gobind Singh all of them began beating Imrat Singh and his party. This version of the story has not been supported by the rest of the prosecution witnesses including the two independent witnesses. There is no finding of the lower court on this aspect of the question, but on reading the entire evidence at the same time it becomes clear that the story given by Ramchandra Singh and Imrat Singh cannot be relied upon. Taking the version as given by the two independent witnesses, it becomes obvious that there was no reason for holding that the accused persons conferred together in order to take part in this occurrence. The very fact that they came out immediately when they heard the shout shows that they were not inspired by a common intention. In the judgment of the trial court, there is no discussion on the point why sec. 34 I. P. C. was considered applicable to the facts of the present case. Under the circumstances of this case we are of opinion that no common intention is proved against the accused and even though the accused may have been inspired by a similar intention no constructive liability can be imposed on any one of then? on account of sec. 34 I. ?. C. The learned Government Advocate has simply laid stress on the fact that the accused persons were all armed with lathis and that they all simultaneously attacked the party of Imrat Singh in order to show that there was common intention on the part of the accused persons. It may be noted that this alone is not sufficient to support the case of the prosecution in this behalf, specially when it is not disputed by the prosecution that the accused persons came out instantaneously after hearing the shout of Gobind Singh. The learned Advocate of the accused persons has also argued that since the statements of Sardar Singh and Gahar Singh were recorded under sec. 164 Cr. P. C. they should not be relied upon. He has cited Emperor vs. Manu Chik and another (A. I. R. 1938 Tat. 290) in support of his contention. It may be noted that 1938 Pat. 290 is based on Queen Empress vs. Jadub Das (I. L. R. 27 Cal. 295) and in both the cases witnesses had retracted their previous statements. On this ground, it was held in those cases that the previous statements of those witnesses were not to be relied upon. Such is not the position in the present case. The two witnesses who were examined under sec. 164 Cr. P. C. have persistently adhered to their previous statements throughout when they were examined before the Committing Magistrate and the Sessions Judge. Further there is nothing on the record in the present case to show that the two witnesses Sardar Singh and Gahar Singh had any enmity with the accused persons, nor is there any other motive attributed to them to show that they had any reason to give false statements. There is, therefore nothing to warrant the idea put forth by the counsel of the accused that these witnesses had given a false version of the prosecution story. The trial court has believed their statements and it has been said in the judgment of the trial court that both the witnesses are independent witnesses having no interest with any one of the parties in the case. The counsel of the accused has also laid stress on the point that the names of these two witnesses were not mentioned in the first information report and on this account he wants that these witnesses should be treated as made up witnesses, but in the first information report no names of the prosecution witnesses were given and it was mentioned in it that the entire village had seen the occurrence. Had any names been mentioned specifically in the first information report such an argument would have been available to the defence that since the names of these two witnesses did not appear in the first information report their statements should be looked at with suspicion. The cases cited are distinguishable and they do not help the counsel of the accused in his plea on this point. Even though evidence was led as regards the plea of alibi the counsel of the accused did not want to take up his stand on that aspect of the case. In the end Ramsaran and others vs. Rex (A. I. R. 1949 All. 594) was referred to on the side of the applicants to show that when the prosecution witnesses have named all the accused persons and some of them were proved not to have taken part in the occurrence, the evidence of such witnesses should be rejected and the accused should be given the benefit of doubt. The authority in that case is distinguishable on the basis of facts of that case, which are not present in this case. In the present case, some of the accused persons received injuries in the occurrence which was considered sufficient to enable the court to hold that they took part in the occurrence and on the basis of this presumption taken along with the evidence of the prosecution witnesses the accused persons were held guilty of the offence, while the other persons who did not receive any injuries were acquitted. The lower court his convicted the accused under sec. 325 on account of sec. 34 I. P. C. but, as has been discussed above, sec. 34 is not applicable to the facts of the present case. There is evidence that the accused appellants took part in beating. They can therefore be held guilty of an offence under sec. 323 I. P. C. only. We are therefore of opinion that the offence against the accused should be changed from sec. 325 to one under sec. 323 I. P. C. This appeal is, therefore, partially allowed and the offences of the accused appellants are reduced as stated above. Their sentences shall be reduced from seven years to one year's rigorous imprisonment only in each case. They are on bail and will surrender at once. .;