Seth, J.:— Each one of the applicants in this case was convicted by the trying Magistrate under section 325, Indian Penal Code. They were charged with having assaulted one Sarju with lathis and to have inflicted upon his person a number of injuries one of which was grievous. When the matter, came up in appeal before the Sessions Judge of Ghazipur, it was argued before him, that in the absence of any definite proof on the record, that the grievous injury had been, caused by anyone of the three assailants, none of them could be convicted under section 325, Indian Penal Code. The learned Sessions Judge realised the force of this argument and altered the conviction from one under section 325, Indian Penal Code, standing by itself to one under section 325, Indian Penal Code, read with section 34 of the same Code.
The first point that has been urged in this application before me is that the applicants are not guilty of any offence, inasmuch as they were acting in the exercise of the right of private defence. The facts found are that the complainant Sarju had sown sawan crop in plot No. 2051/2, but one day he found the three applicants reploughing his field and, when he protested, all the three applicants assaulted him with lathis. There was definite testimony of witnesses to support this story for the prosecution and these witnesses have been believed by the learned Sessions Judge. It has been urged in this Court that the entries in the village papers are conflicting, and that there was a bona fide dispute about the possession of this field and, therefore, the applicants were justified in assaulting the complainant Sarju when he made a protest. I am unable to accept this contention. According to the prosecution case which has been believed, Sarju had sown the sawan crop and, it were the applicants who were causing interference with the possession of Sarju. Sarju was thus perfectly justified in raising the protest and there was no occasion for the exercise of any right of private defence, because it is not a case where the applicants were acting to protect their possession. Rightly or wrongly, they had been dispossessed and Sarju had sown the crop in the field. The applicants had no right to take the law in their own hands in order to turn out Sarju. In my opinion there is no force in this plea.
Then it is urged that the conviction of all the three applicants under section 325 is not justified by the evidence on the record. The learned Sessions Judge himself observes, that there was only one grievous hurt and only that person could be convicted under section 325 who had caused the grievous hurt unless, of course, section 34, Indian Penal Code, was brought into operation. Having thus correctly stated the law he proceeds to observe:
“In the present case there can be no doubt that all the three appellants had the common intention of causing grievous hurt to anyone who may resist them. Any person who uses a lathi in an assault must be presumed to have the intention to cause grievous hurt. The conviction of the three appellants is, therefore, correct as section 34, Indian Penal Code, is applicable to their case.”
There is no evidence of any common intention in the present case. I do not agree with the view of the learned Sessions Judge that any one who assaults with a lathi must be presumed to have the intention of causing previous hurt. An assault with a lathi is not inconsistent with an intention to cause simple hurts only. Even assuming that each one of the assailants had an intention to cause grievous hurt, that does not amount to saying the same thing as that the three assailants had a common intention. Common intention does not mean similar intention of several persons. To constitute common intention it is necessary that the intention of each one of them be known to the rest of them and be shared by them. There is no evidence in this case to establish such a common intention. Under these circumstances, there being no evidence as to which of the applicants caused the grievous Hurt, the conviction of none of the three applicants under section 325 can be maintained. There, however, being evidence to show that the injuries were caused by each one of the applicants, they are guilty under section 323, Indian Penal Code. I, therefore, allow this application in revision to this extent that I alter their conviction from one under section 325, Indian Penal Code, to one under section 323, Indian Penal Code, but I maintain the sentence of six months' rigorous imprisonment and the fine imposed upon each applicant. They must surrender to their bail.
Application partly allowed.
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