Dayal, J.:— Dipa and Harbal were committed for trial under section 304, I.P.C Harbal died during the pendency of the case in the sessions court. Dipa was convicted under section 325 of the Indian Penal Code and was sentenced to three years' rigorous imprisonment. He has appealed to this Court.
At the time of the admission of the appeal it was ordered that a notice for enhancement of sentence be issued to Dipa.
The prosecution case is that Harbal who was uncle of the accused appellant and Dipa appellant beat Shiama with thin sticks, kicks, slaps and fists on the evening of the 1st of November, 1945, as they suspected Shiama of having stolen Dipa's kurta. The beating was a sustained one. Shiama received extensive contusions on various parts of his body. The beating also resulted in the fracture of two ribs.
There is ample evidence on the record to support the prosecution case. It is not necessary to deal with it fully. Five witnesses deposed about it. There is nothing particular against them. The finding that Dipa appellant had beaten Shiama is therefore correct.
The learned Sessions Judge has held that the provisions of section 34 of the Indian Penal Code do not apply to the facts of the case. In this he is right as it cannot be held on the basis of evidence on record that both Harbal and Dipa beat Shiama in furtherance of any common intention.
There is no evidence of any pre-arranged plan. The learned Sessions Judge further held that it could not be said which of the assailant was responsible for causing which of the injuries. He observed:
“Both the assailants were responsible for causing all the injuries according to the evidence. There is no escape from the finding that two men Harbal and Dipa made an assault on a sickly man and caused him grievous hurt. An intention on their part to cause such injuries must be presumed and each one of them must be held to be guilty under section 325 as laid down in the Allahabad case cited above.”
The case cited is the case reported in Emperor v. Bishwanath(1)
We are of opinion that the learned Sessions Judge has been wrong in convicting the appellant of the offence under section 325 of the Indian Penal Code when it could not be held that he 11 himself had caused any of the grievous injuries on the deceased. A person voluntarily causes grievous hurt when he intends to cause grievous hurt or knows it likely that he would cause grievous hurt and actually causes grievous hurt. It may be presumed from the conduct of several persons striking another with lathis that each of them intended to cause grievous hurt; but such a presumption alone is not sufficient to establish the offence of causing grievous hurt against an accused unless it be further shown that accused actually caused grievous hurt. This aspect of the matter seems to have been overlooked in the case cited above.
The case reported in Emperor v. Bishwanath does tend to support the reasoning of the learned Sessions Judge. The observations of Mulla, J., in the case at page 536 were, however, simply to this effect:
“At the same time I think when four persons simultaneously attack another person with lathis, it can fairly be presumed against every one of them that he had at least the intention of causing grievous hurt. I think, therefore, that each one of the appellants in this case is guilty of an offence under section 325 of the Indian Penal Code.”
These observations did not refer to the actual causing of grievous hurt by each individual appellant. Earlier in the judgment the learned Judge expressed the opinion that section 34 of the Indian/Penal Code could not be brought into operation in that case and that each one of the appellants could be held responsible only for the act committed by him and the result produced thereby, and that though the prosecution evidence sought to connect one of the appellants with one of the two injuries on the head which resulted in fracture that evidence was not consistent. There were two fractures of the parietal bones underneath the seats of the two injuries on the head. We are of opinion that when there was no evidence to indicate as to which of those four appellants actually caused those grievous hurts none of them could have been convicted of the offence under section 325 of the Indian Penal Code. We therefore, disagree with the view expressed in that case.
We are therefore of opinion that the conviction of Dipa, appellant must be altered to one under section 323 of the Indian Penal Code from section 325 of the Indian Penal Code. We therefore allow the appeal to this extent that we alter the conviction from section 325 to section 323 of the Indian Penal Code, and reduce the sentence from three years to one year's rigorous imprisonment. It appears that Dipa has already served more than a year in jail. He is therefore to be released forthwith if not required to be detained under any other process of law.
The notice of the enhancement of sentence is discharged.