JUDGMENT
Karamat Husain, J.
1. In this case, Kalyan Singh and Dhian Singh were convicted under Section 325 of the Indian Penal Code and sentenced to six weeks’ rigorous imprisonment and a fine of Rs. 25 each, or, in default, to undergo three weeks’ further rigorous imprisonment. Nihal Singh was convicted under Section 325 read with Section 109 of the Indian Penal Code and sentenced to three weeks’ rigorous imprisonment and a fine of Its. 10, or in default, to a further period of ten days’ rigorous imprisonment. The convicts appealed to the learned Sessions Judge, and one of the pleas in appeal was that the conviction of all the three accused persons under Section 325 of the Indian Penal Code was bad in law. The learned Sessions Judge upheld the conviction and sentences and dismissed the appeal. The learned Sessions Judge, in the course of his judgment, says: The lower Court believes the evidence for the prosecution, and after reading it, I see no reason to take a different view. The medical evidence shows that the complainant got his arm broken.” The prisoners come to this Court in revision, and it is urged that the conviction of all the accused person under Section 323 of the Indian Penal Code is bad in law. Pour other pleas are taken, but I am not inclined to accept any one of those inasmuch as they deal more or less with the questions of fact. In order to deal with the plea that the conviction of all the three accused persons under Section 325 of the Indian Penal Code is bad in law, I have to refer to the evidence adduced by the prosecution. Kundan in effect states: Nihal Singh got hold of my waist; Dhian Singh and Kalyan Singh both struck me with lathis. Their lathis fell on my arm. My left arm was broken” Kunwar Lal says to the effect: ‘Nihal Singh got hold of Kundan Singh by the waist; Dhian Singh and Kalyan Singh struck him with lathis. The lathis struck his left arm. The bone of his arm was broken.” Sita Ram says to the effect: “Nihal Singh got hold of Kundan Singh by the waist; Dhian Singh and Kalyan Singh struck him with lathis. The lathis struck the left arm of Kundan Singh.” The evidence of the above witnesses has been believed by both the Courts below and I am not prepared to disbelieve it. It satisfactorily proves that Dhian Singh and Kalyan Singh struck Kundan Singh with lathis and that Nihal Singh helped them by holding Kundan Singh. As the medical evidence shows that there were marks of two blows only, it is clear that one of the two blows was struck by Kalyan Singh and the other by Dhian Singh. There is no evidence which of those two blows broke the arm of Kundan Singh. In these circumstances, it is difficult to convict Kalyan Singh and Dhian Singh both under Section 325 of the Indian Penal Code and to convict Nihal Singh under Section 325 read with Section 109 of the Indian Penal Code. The learned Assistant Government Advocate called my attention to Section 34 of the Indian Penal Code and says that as the arm of Kundan Singh was, as a matter of fact, broken, each of the three persons was rightly convicted. For the application of Section 34 of the Indian Penal Code, a furtherance of a common design is a condition precedent for convicting each of the persons, who take part in the commission of a crime, and the mere fact that several persons took part in a crime in the absence of a common intention is not sufficient to convict them of that crime. In the present case there is no evidence to show that the common intention of all was to cause grievous hurt. Each of the two applicants, Dhian Singh and Kalyan Singh, at least was guilty of an offence under Section 323 of the Indian Penal Code and Nihal Singh abetted the commission of it, but as an offence under Section 323 of the Penal Code is punishable with imprisonment of either description for a term which may extend to one year or with fine which may extend to Rs. 2,000 or with both, I alter the conviction to one under Section 323 of the Indian Penal Code and uphold the sentences. The revision in other respects is rejected.
