JAIN, J. - (1.) - These revision petitions are directed against a common judgment of learned Sessions Judge, Balotra dated 19. 6. 84, so, they are disposed of by this order. (2) The petitioners were convicted by the order of learned Munsif and Judicial Magistrate, dt. 8. 11. 82 in original case no. 95/83 State Vs. Ramzan and others. Against that order, two appeals were filed one by Kutub (No. 113/82) and other by the petitioners no. 1 to 7 (No. 109/82), before the learned Sessions Judge. Both the appeals were dismissed and the order passed by learned Munsif and Judicial Magistrate was confirmed by the learned Sessions Judge vide his judgment dated 20. 6. 84 by which the petitioners were convicted and sentenced as under : - 1. For the offence u/ss. 147 and 323 IPC each of the petitioners has been sentenced to one month's R. I. alongwith a fine of Rs. 100/- on each count and in default to further undergo 15 days S. I. on each count.
(2.) FOR the offence u/s. 325 IPC accused-petitioner Ramzan has been sentenced to six months R. I. alongwith a fine of Rs. 200/- and in default to further undergo one month's S. I. For the offence u/s. 325 read with 149 IPC all the petitioners except Ramzan have been sentenced to six month's R. I. alongwith a fine of Rs. 200/- on each count and in default of payment of fine to further undergo one month's S. I. on each count. All the sentences were ordered to run concurrently. 3. Brief facts of the prosecution case are that one Razak lodged a report on 8. 6. 78 at 7 a. m. at P. S. Chohatan with the allegation that on 7. 6. 78 at 10 p. m. when his horse was drinking water a lathi blow was inflicted on his head by Peeru. Sadak also inflicted lathi blow on his head and Ramzan inflicted lathi blows on his head and nose. Whereupon he ran away towards the hotels. It was alleged that some more accused came and gave beating to him. On hue and cry Noor Mohammed and Isara Ram came there and intervened. A case u/s. 307, 147 and 323 IPC was registered against one Kutub alongwith the other petitioners and investigation was started. They were convicted and sentenced as mentioned above. Mr. M. M. Singhvi, learned counsel for the petitioners was frank enough to concede and have not challenged the findings of the trial court except the conviction of the petitioner Ramzan u/s. 325 IPC and of the other petitioners no. 2 to 7 alongwith Kutub u/s. 325 IPC read with 149 IPC. He has relied on Ganpat Lal Vs. State (1) and Golu & Ashok Kumar & others Vs. The State of Raj. (2), and in alternative submitted that a lenient view may be taken since the incident is of the year 1978. Mr. D. R. Bohra, learned Public Prosecutor has supported the judgments and submitted that Ramzan u/s. 325 IPC and the above accused persons no. 2 to 7 and Kutub have been rightly convicted u/s. 325 IPC with the aid of Sec. 149 IPC. I have heard learned counsel for the parties and perused the record. The injured Razak was examined by P. W. 6 Dr. Mohanlal and he found 11 injuries in all on his person, three lacerated wound, one abrasioa and seven swellings. The Dr. has admitted that he has not taken the X-Ray though advised. He has stated that he is not aware who produced the X-Ray report. The Dr. on the basis of X-Ray report Ex. P-7 found that injuries no. 4,5 and 7 are grievous and further stated that injuries no. 7 to 11 were wrongly mentioned as swellings whereas in fact they were bruises. The Doctor has also admitted that injury no. 1 to 4 could be caused by forceful impact (Ragad) and injuries no. 5, 6 and 7 could be caused by fall on hard object. The Radiologist has not been produced by the prosecution nor it has come on record that who had conducted the X-Ray. The X-Ray was taken on 9. 6. 78 and X- Ray plate No. 216 and 217 of nose, do not show any fracture as it is not visible as per the statement of P. W. 6 Dr. Mohanlal. Nothing has been stated as regards the X-Ray plate no. 218 of scapula. The injuries sustained by injured Razak on his nose have been attributed to Ramzan. The Doctor who has conducted the X- Ray, has not been produced to prove the X-Ray report, therefore, it cannot be held that the prosecutor has proved the injuries on the person of Razak and the accused cannot be convicted u/s. 325 IPC. That apart, it is well settled that if once formation of unlawful assembly with common object is proved and non-participation is the assault does not necessarily mean non-sharing of common object, if the common object is otherwise clear and avowed. To determine common object of unlawful assembly, the conduct of each member of the assembly is material. It is to be seen that at which point of time they have common object and to what extent i. e. beyond which they may differ in their objects and knowledge possessed by each member of what is likely to be committed in prosecution of their common object. Thus, the common object has to be determined with reference to the facts and circumstances of each case. In the instant case, as per the prosecution the incident has taken place at the tubewell and at that time only three persons viz. Peeru, Sadak and Ramzan were there, out of them Ramzan inflicted injury on his head and nose, Sadak and Peeru inflicted blows on his head. The injured ran away towards the hotel and as per the statement of injured Razak P. W. 1 himself Saradin, Immadin, Janab, Gulam and Kutub came there from the opposite side. He has also stated that he was caught hold by Janab and over powered and was pushed down on the ground and thereafter they gave him beating. But in the case in hand, the injury sustained by Razak are mentioned in the injury report and explained by P. W. 6 Dr. Mohanlal. On the basis of statement of P. W. 1 Razak, therefore, it cannot be said that the other accused persons who came from the opposite side had common object of the earlier assault at tubewell, and engaged in prosecuting the same object and the question of sharing common object from the very inception has not been established by the prosecution. The learned Public Prosecutor has not been able to point out any evidence to this effect. As I have already held that the conviction of the petitioners u/s. 325 IPC cannot be upheld in the absence of Doctor's evidence. Consequently, the applicability of Sec. 149 IPC and conviction of the petitioners no. 2 to 7 and Kutub u/s. 325 IPC read with 149 IPC is also illegal and deserves to be set aside.
(3.) HAVING given my earnest consideration to the facts and circumstances, of this case, in my opinion, since all the petitioners are only liable to hold guilty u/s. 323 and 147 IPC, the argument of Mr. Singhvi for taking a lenient view has force. In view of this, I am of the view that since the incident is of 7. 6. 78 and all the accused have remained in jail for some time, no useful purpose will be served, if the petitioners are sent to jail again to serve out the remaining period of sentence. In this view of the matter, the ends of justice will be served while maintaining the conviction of the petitioners u/s. 323 IPC and 147 IPC, their sentence of imprisonment is reduced to the, period already undergone. In the result, these revision petitions are partly allowed. The conviction of the petitioner Ramzan u/s. 325 IPC is set aside but his conviction u/s. 323 and 147 IPC is maintained. The conviction of the petitioners no. 2 to 7 and Kutub u/s. 325/149 IPC is quashed. Their conviction on other count u/s. 323 and 147 IPC is maintained. The sentence of imprisonment of all the petitioners are reduced to the period already undergone. Their sentence of fine on both the counts, u/s. 323 and 147 IPC are maintained Two months time is allowed to the petitioners to deposit the same, failing which the trial court will proceed according to law against them, out of amount of fine so deposited by the petitioners Rs. 1000/- shall be paid to the injured Razak. The petitioners are already on bail, so they need not surrender and their bail bonds are discharged. .;