1. This is an appeal by Ram Rup and Shyam Narain against their conviction under Section 147 and Section 323 read with Section 149, I. P.C. and sentences of two years' rigorous imprisonment and Rs. 200 fine under Section 147 and one year's rigorous imprisonment under Section 323 read with Section 149, Penal Code. The sentences have been directed to run concurrently. There were seven persons who were put on their trial before the learned Additional Sessions Judge. Of them five were given the benefit of doubt and were acquitted. Only the two appellants before me have been convicted under Sections 147 and 323 read with Section 149, Penal Code. I have heard the learned Counsel in support of this appeal at great length and the learned Assistant Government Advocate in support of the conviction. Learned Counsel for the appellants has strenuously argued; that the conviction of the appellants cannot stand inasmuch as they have been convicted under Section 147, Penal Code, which requires the participation of at least five persons in the incident. His contention is that they cannot be convicted under Section 323 read with S.149, Penal Code, either because the number of participants in the crime as the result of the Sessions trial must be held to be less than five in number. The entire prosecution evidence in the case has been laid before me and it is clear from that evidence that not more than seven persons in all and one Ram Nagina who is dead were alleged to have participated in the occurrence at one stage or the other. There is no suggestion even anywhere in the evidence that the number of assailants who took part in the occurrence was more than seven, namely, the seven persons who were put upon their trial.
2. Under these circumstances it is impossible to hold, on the one hand, that five of the accused persons who were acquitted by the learned Sessions Judge were not guilty of the offences charged and at the same time to hold that those very five persons were in a sense participating in the crime so that the remaining two, namely, Ram Rup and Shyam Narain appellants be held guilty under Sections 147 and 323 read with Section 149, Penal Code. To my mind it would be utterly illogical and also unsound in law to hold that the other five were not guilty of the offences charged but that they were there for a subsidiary purpose, namely, for the purpose of convicting the remaining two of riot and of the offence of simple hurt under Section 323 read with Section 149, Penal Code. The learned; Assistant Government Advocate has referred me to a ruling reported in Emperor v. Ram Adhin Singh : AIR1931All439 in support of his contention that even after the acquittal of five of the men tried jointly along with the appellants the remaining two could be convicted of an offence under Section 147, Penal Code, and also of the offence under Section 323 read With Section 149, Penal Code. I have perused the ruling mentioned above. To my mind the facts of that case were wholly distinguishable from the facts of the present case. The principle laid down in that case can be applicable to my mind only to cases where evidence discloses that in addition to the men who were actually put upon their trial there were others, known or unknown, who were not before the Court. In such a case it is perfectly clear that the fact that some of the accused are acquitted with the result that those convicted constitute less than five in number would not necessarily mean that the convicted persons were participants in the crime in which all the culprits numbered less than five. In the present case, however, as said above there can be no question that not more than eight persons in all including Ram Nagina took part in the occurrence in question.
3. After considering the points discussed above with care, I find that the conviction of the appellants under Section 147 as well as under Section 323 read with Section 149, Penal Code, cannot be legally sustained. I would therefore set aside the conviction of both these appellants under Section 147 and S.323 read with Section 149, Penal Code. The question, however, arises whether on the facts found by the learned Judge-and there is abundant evidence to support his findings-the appellants are not guilty under Section 323 read with Section 34, Penal Code. To my mind the evidence makes it perfectly clear that these two appellants were responsible for inflicting injuries on the complainant, Tileshar Rai. From the facts established by the evidence, it is clear to my mind that the two appellants were acting in furtherance of one common intention, namely, of beating Tileshar Rai, when the latter interfered with the impounding of their cattle. I would accordingly alter the conviction from one under Sections 147 and 323 read with Section 149, Penal Code, to one under S.323 read with Section 34, Penal Code. The appellants have been sentenced to one year's rigorous imprisonment under Section 323 read with Section 149, Penal Code. The sentence of one year's rigorous imprisonment imposed upon the appellants under Section 323 read with Section 149, Penal Code, is maintained. The fine, if paid, shall be refunded. With this modification the appeal is dismissed. The appellants are on bail. They must surrender themselves and serve out the rest of their sentence.