K. S. LODHA, J. - (1.) THIS revision has been filed by eight accused persons against the judgment of the learned Addl. Sessions Judge, Sirohi dated September 20, 1980 by which their appeal against the judgment of the learned Judicial Magistrate, Sirohi dated 2. 8. 78 had been partly dismissed.
(2.) IN view of the short contention raised before me by the learned counsel for the petitioners, I shall state the facts of the case in very brief. According to the prosecution case, on 3. 12. 74, at about 10. 00 A. M. injured Deepa was going towards his house. When he reached near Harji's house, he saw Harji, Naga, Sonia, Hariya, Daula and Udia sitting there with lathis in their hands and on seeing him, Daula gave a lathi blow on his back. Then, Harju followed. Deepa started running, as a result of which his bale of rijke and his turban fell down. He entered his house. At that time one of the accused Daula said that he was running away, he should be killed and that he (Daula) will bear the expenses. Thereupon, Sonia, Nagiya, Harji, Daniya and Sadiya entered the house of Deepa following him and there, Nagga gave an axe blow on his left knee and Sonia gave a Dhariya blow on his right leg. Harji gave a lathi blow on his head and Nagga gave another blow with axe on his face. He raised hue and cry, whereupon, his uncle Gamna came there but went away out of fear Then, Padma, Nava and Narsa came there followed by Vaja and rescued him. By that time, Gamna again came there. A first information of this incident was lodged by Gamna at Police Station, Eranpur at about 7. 15 P. M. After investigation, the police put up challan against eight petitioners and one Daula, who later died pending the trial. The accused pleaded not guilty of the various charges framed against them, but on trial, the learned Magistrate convicted Nagiya under sec. 148, 452 and 326, I. P. C; Soniya under sec. 148, 452 and 324, I. P. C; Harji, Dona and Sadiya under sec. 147,452, 323, 324/149 and 326/149, and 454, I. P. C. and Nava, Hariya and Udiya under sec. 147, 324, 326/149 I. P. C. by his judgment dated 2. 8. 78. Aggrieved of it, the petitioners filed an appeal before the learned Additional Sessions Judge, Sirohi. The learned Additional Sessions Judge partly accepted the appeal of Soniya, Harji, Dana, Sadiya, Nava, Hariya and Uda and acquitted Soniya of the charges under sec. 324,1. P. C. and others under sec. 324/149, I. P. C. He, however, maintained the convictions and substantive sentences of the petitioners for the other offences, but reduced the sentence of fine from Rs. 200/- to Rs. 50/- and consequently, the sentence in default of payment of fine was also reduced to 15 days' simple imprisonment. Similarly, he reduced the sentence of fine of Nagiya under sec. 326, I. P. C, Harji, Dana, sadiya, Nava, Hariya and Uda under sec. 326/149 from Rs. 500/-to Rs. 100/- only and sentenced in default of payment thereof was reduced to one month's simple imprisonment. Aggrieved of the part dismissal of the appeal, the petitioners have come up in revision before this Court. I have heard learned counsel for the petitioners and the learned Public Prosecutor. So far as accused Nagiya is concerned, the only contention raised by the learned counsel for the petitioner is that his sentence under s. 326, and 452 I. P. C. should be reduced to that already undergone inasmuch as he has already suffered more than 3-1/2 months's imprisonment. So far as the other accused persons, other than Sonia, are concerned, he has submitted that their convictions under sec. 326 read with sec. 149-1. P. C. is not maintainable and the reason put forward by him is that injured Deepa himself states that when he reached near the house of Harji, he saw accused persons sitting there, they were only holding lathis in their hands. He does not say that any of them was armed with sharp-edged weapon at that time. However, later he of course states that Naga had struck an axe blow on his left leg and Soniya struck a Dhariya blow on his right leg, but he does not explain as to how and when these sharp edged weapon came to the hands of the accused. Naga and Soniya were initially armed with Lathis, and therefore, the possibility cannot be ruled out that these accused may have come by these weapons in the house of the injured Deepa himself and after picking them up, they may have caused injuries on Deepa. The other accused therefore, cannot be imputed with the knowledge of any grievous injury with sharp-edged weapon being likely to be caused in furtherance of any common object and, therefore, they cannot be held guilty under sec. 326 read with sec. 149, LP. C. So far as the other offences are concerned, he has urged that the petitioners have, already suffered about 17 days 'imprisonment after the dismissal of their appeal by the learned Additional Sessions Judge and before their release on bail by this Court and those sentences should suffice. Learned Public Prosecutor, however, urged that so far as the charge under sec. 326 read with sec. 149, I. P. C. against accused, other than Nagga and Sonia, is concerned, it cannot be said that these accused persons could not have the knowledge of the likelihood of the grievous injury by the sharp-edged weapon being caused in furtherance of the common object inasmuch as the other eye-witnesses P. W. 2 Narsa, P. W. 3 Nava, 4 Gamna and P. W. 5 Vaja have clearly stated that Naga had an axe and Soniya had a dhariya from the very beginning. It is possible that the injured Deepa may not have properly noticed the weapons in the hands of the accused when he was trying to escape. According to her, the convictions of the accused-petitioners other than Nagga and Soniya, under sec. 326 read with sec. 149, 1. P. C. is proper. So far as the question of reduction of sentence under sec. 326, I. P. C. goes, she did not seriously object to it, but urged that in case the substantive sentence is reduced, the sentence of fine may suitably be increased.
(3.) I have given my careful consideration to the rival contentions. I shall take up the matter of the charge under sec. 326 read with sec. 149, I. P. C, so far as the accused other than Nagia and Soniya are concerned. No doubt, the other eye-witnesses Narsa, Nava, Gamna and Vaja have stated that when they saw the accused persons, then, Nagia was holding axe and Soniya a dhariya. but a careful perusal of their statements would go to show that as matter of fact these witnesses had reached the place of the incident only after the @ injured Deepa had entered the house and the accused-petitioners were also by that time inside the house. Narsa, P. W. 2, admits that he had heard noise from inside the house of of Deepa. Naturally therefore, by the time he reached the place of incident, the accused must be inside the house of Deepa. Nava, P. W. 3 also states that noise was coming from inside the house of Deepa and, therefore, his position is also the same. Gamna, P. W. 4, as a matter of fact, is not an eye-witness to the incident inasmuch as in the cross-examination, he has clearly admitted that the beating was already over by the time he had reached and that he had not actually seen the beating. Vaja also clearly states that when he was passing by the house of Deepa, he heard the noise and saw Daula, Uda, Nava and Hariya standing outside the house of Deepa and Daula at that time was saying that Deepa should be finished, and it was then, that he went inside the house and saw the accused beating Deepa. Therefore, he also had not seen the accused with axe or Dhariya while they were outside the house of Deepa. In these circumstances, when Deepa has categorically stated that when he first saw the accused near the house of Harji, they were only holding Lathis and thereafter after entering his house, when some of the accused are alleged to have given blows with axe and dhariya, the possibility that they may have got these weapons lying in the house of Deepa himself and may have availed of the same, cannot be ruled out. In these circumstances. Nagiya, who had inflicted the actual injury with axe on the left knee of Deepa can of course be held guilty under sec. 326 I. P. C, but the other accused cannot be held guilty under sec. 326, I. P. C. with the help of sec. 149, I. P. C. They could not have shared any common object with Nagiya for causing grievous injury with the sharp-edged weapon. If a member of an unlawful assembly was armed with sharp-edged weapon from the very beginning to the knowledge of the other member of such assembly, then perhaps with some justification such an inference could have been drawn, but when one of the members suddenly came to have a sharp-edged weapon during the course of the incident, the other members of the assembly could not even be imputed the knowledge that any grievous injury with sharp-edged weapon was likely to be caused in furtherance of the common object of their assembly, I am, therefore, clearly of the opinion that the court-below were not justified in convicting the accused, other than, Nagia under sec. 326, with the help of sec. 149, I. P. C. and their conviction under this count cannot be sustained. Now, coming to the case of Nagiya in respect of the question of sentence under sec. 326 and 452 IPC, it may at once be stated that the incident is as old as of 3. 12. 74; almost 13-1/2 years have already passed since then. The accused ha ;