M. C. JAIN, J. - (1.) THE appellants were convicted of the offences u/sec. 307/ 34 IPC and were sentenced to 4 years rigorous imprisonment and to pay a fine of Rs. 200/ -. Two appellants namely Jeetasingh and Charansingh were convicted of the offence u/sec. 379 IPC and were sentenced to one year's rigorous imprisonment and to pay a fine of Rs. 100/ -. Both the sentences were ordered to run consecutively. On the first count, in default of payment of fine the appellants were ordered to undergo 2 months rigorous imprisonment and in default of payment of fine on the second count, the two accused persons were ordered to undergo one month rigorous imprisonment.
(2.) BALWANTSINGH P. W. 5 lodged the report Ex. P. 11 at the police station. G. R. P Hanumangarh on 18. 7. 73 at 11. 30 p. m. regarding the occurrence, which is alleged to have taken place at 9 p. m. The version given by him, was that he along with his uncle Fojasinghhad gone to the Railway Station, Talwara. Foja-singh was to leave for Amritsar. He further stated that after the purchase of the tickets when he reached at the platform, the accused persons came there. Jeetasingh, Charansingh were armed with gandasa and Jantasingh and Balwinder-singh had lathis. First Jeetasingh inflicted gandasa blow on the head of Foja-singh and Charansingh then inflicted the blow on the left arm with gandasa. The other two accused persons inflicted lathi blows. On sustaining of injuries, Fojasingh fell down. Jeetasingh then took away the 12 bore double barrel gun of Fojasingh and Charansingh took away the bag containing the licence, cartridges and money. Thereafter all the accused ran away from the spot. A case u/-sec. 394, 324, 323 IPC and Sec. 120 of the Indian Railway Act was registered. Necessary investigation was conducted and after completion of the investigation, charge sheet was presented and the accused persons were committed for trial. At the trial, the accused persons pleaded not guilty and claimed trial. As many as, 8 witnesses were examined by the prosecution. After recording the statement of accused persons, the accused persons examined two witnesses in defence. The learned Sessions Judge after hearing the argument, convicted and sentenced the accused persons as aforesaid. I have heard Shri M. L. Garg, learned counsel for the appellants and Shri Gautam Mal Bhandari, learned Public Prosecutor for the State. At the outset, Shri M. L. Garg stated that Balwindersingh has expired, so his appeal has abated. On merits, Shri Garg submitted that the learned Sessions Judge seriously erred in applying sec. 34 IPC and in holding the appellants guilty of the offence u/sec. 307/34, I. P. C. He urged that no enmity is alleged between the accused persons and the victim and besides that their meeting was a chance meeting. There was no prior meeting of mines of the accused-persons to avail the victim with an intention to take away his life. If the accused-persons had intended to do away with the victim, they could have and would have dealt with severe blows resulting into the death of the victim. For the applicability of Sec. 34, IPC, prior meeting of minds is essential and in the circumstances, according to the learned counsel for the appellants, it cannot be said that such meeting of minds had developed at the spur of the moment I find force in the above submission of the learned counsel for the appellants. The manner in which the occurrence has taken place, does not suggest that there was any prior meeting of minds. If there had been any prior meeting of minds, then the victim would have been dealt with in a different manner. There are three incised wounds and three bruises on the person of Fojasingh Bruises have been attributed to Janta-singh and Balvindersingh and two incised wounds have been attributed to Jeeta-singh and Charansingh. One fracture has been found on the right parietal bone on the external table. Thus, the number and nature of injuries also do not suggest that the accused-persons had any intention to deal with the victim severely, so as to take away his life. In the facts of the case, in my opinion. Sec. 34 IPC can hardly be made applicable and. so, I hold that with the help of Sec. 34 I. P. C. , the learned Sessions Judge wrongly convicted the accused persons. Now the question arises, as to what offence is made out against the accused-persons. If sec. 34 I. P. C. does not apply then the accused persons can be held liable for their individual acts. They cannot be made responsible constructively. The lathi blows have been attributed to Jantasingh and Balwindersingh and the incised wounds have been attributed to Jeetasingh and Charansingh. The witnesses do not ever say who is the author of the grievous injury on the head caused by sharp weapon. Fojasingh only states that Jeetasingh inflicted a blow on his head with gandasa and Charansingh also inflicted a gandasa blow on his left arm. Fojasingh does not state about the said injury inflicted by Jeetasingh. He does not even state that two injuries were caused on his head. From his statement, it cannot be found as to who caused the grievous injury on his head. He was even silent about his other injury on the head. Taking into consideration the statement of Balwant singh it may be stated that he has given different versions and no definite finding can be reached, on the basis of his statement regarding the authorship of the grievous injury. In the F. I. R , he stated that Jeetasingh inflicted gandasa blow on the head of Fojasingh On which part of the head, the injury was inflicted, was not stated by him in the F. I. R. He improved upon his statement and attributed two head blows. In examination in-chief he stated that Jeetasingh inflicted a blow on the head of Fojasingh. Charansingh then inflicted gandasa blow on the left hand. According to Balwantsingh, it was Jeetasingh who first inflicted the gandasa blow but in cross examination this witness stated that the first injury on the head was on the front side and the second injury was on the right side. If viewed, in the light of this cross-examination, then grievous injury on the head becomes attributable to Charansingh and not to Jeetasingh. Thus, nothing definite can be said about the authorship of the grievous injury on the head. Therefore, none of them can be held liable for the grievous injury. So both these accused persons can only be held responsible for causing simple hurt by sharp weapon for the offence u/sec. 324 IPC. Thus Jeetasingh and Charansingh are liable for the offence u/sec. 324 IPC Jantasingh and Balwinder Singh are liable for the offence u/sec. 323 IPC. Coming to the offence u/sec. 379 IPC it may be stated that this part of the prosecution case does not appear to be credible. There was no occasion for removal of the gun and the bag. Even if, it is found that factually, it was taken away. There does not appear any dishonest intention as it is shown by the prosecution that these articles were produced before the police. According to the prosecution these articles were produced by Gurdevsingh but Gurdevsingh has not supported the prosecution. If there was any intention to take away the gun and the bag with dishonest intention then their production in this fashion would not have been possible so, in my opinion, conviction u/sec. 379 IPC cannot be maintained. Coming to the question of sentence it may be stated that more than 13 years have already been passed so it is not a case for further sentence. The appellants have remained in custody for some-lime. The appeal of Balwinder-Singh has already abated. The appellant Jeetasingh, Charansingh and Jantasingh remained in custody for 10 days to 15 days. So it would be proper to reduce their sentence to their period of custody.
(3.) ACCORDINGLY the appeal is partly allowed. Convictions of the appellants Jeetasingh and Charansingh for the offences u/sec. 307/34 and 379 IPC are set-aside. However, Jeetasingh and Charansingh are convicted of the offence u/sec. 324 IPC and Jantasingh of the offence u/sec. 323 IPC. They are sentenced to the period of their custody. They are already on bail, so they need not surrender. Their bail bonds are discharged. .;