1. This is an application by Jaimangal and three others for revision of an order passed by the learned Additional Sessions Judge, Gorakhpur, upholding their conviction and sentences under Section 325, I.P.C. The facts, concurrently found by the lower Courts, may be briefly stated. In village Gulahala, there are two factions, one headed by Ram Prasad and his brothers, and the other by Jaimangal. The parties are descendants of the same common ancestor, and are related to each other. They have been at loggerheads for a considerable length of time. On 11th November 1935, at about 11 a.m., there was an altercation, followed by a fight, in village Gulahala. Some men on both sides received injuries. Ram Prasad was not present at Gulahala, and one Ram Lakhan went to inform him of what had happened. Ram Prasad and Ram Lakhan proceeded to the Padrauna police station on bicycles. Two first information reports were made at the thana, one by Janu, who belonged to the party of Ram Prasad, and the other by Jaimangal. Ram Prasad left the thana after having had a talk with the Sub-Inspector. It is not clear whether the two reports, above referred to, had already been recorded before Ram Prasad left. He was accompanied by Ram Lakhan, as before. They were going to Gulahala. They were met on the way by Jaimangal and the other applicants, who delivered an attack on Ram Prasad with lathis. Ram Prasad received numerous injuries, including a grievous hurt. Ram Lakhan also received some injuries. Thereupon a third report was lodged at the thana. It was followed by police investigation resulting in the prosecution of the applicants who were convicted by the trying Magistrate of causing grievous hurt to Ram Prasad. Their appeal to the Sessions Judge was dismissed.
2. It may be noted that the gravamen of the charge against the applicant has no reference to the fight which took place in the village at. 11 a.m. It is confined to the assault on Ram Prasad. There was ample evidence in support of the story for the prosecution. In the trial Court the applicants denied having assaulted Ram Prasad, but in appeal they attempted to make out a case of right of private defence. The learned Sessions Judge has effectively disposed of this plea. The principal contention, put forward on behalf of the applicants by their learned Counsel before me, is that all the applicants cannot be considered to be guilty of causing grievous hurt to Ram Prasad, inasmuch as the evidence does not show which of the four applicants caused grievous hurt, which was the result of a single blow, and as, on the own showing of the prosecution, there was no premeditated design to cause grievous hurt. The lower Courts have had recourse to Section 34,I.P.C., to convict all the applicants under Section 325. Their view is based on the language of Section 34, which has been so construed as to apply to a case in which several persons combine to attack with lathis a common enemy and a blow dealt by one causes grievous hurt. It is argued by learned Counsel before me that, unless the evidence establishes that the applicants had conspired to cause grievous hurt to Ram Prasad, Section 34, cannot apply, and the only offence of which they can be convicted is one under Section 323, I.P.C. He has relied on some cases in support of his contention, to which I shall presently refer.
3. In my opinion, it is not necessary for the application of Section 34 to find that there was a pre-arranged plan of doing something which amounts to an offence. Common intention may be conceived of immediately before or at the time of the assault. In general, the precise intention of several persons acting in concert is a matter of inference from their conduct. In the case before me, the applicants attacked Ram Prasad as soon as they sighted him; all of them used their lathis. I think that it should be inferred that all of them became of one mind when they suddenly saw Ram Prasad and entertained the common intention of beating him with lathis. It is perfectly clear that they were animated by a common desire to beat Ram Prasad, with whose party there had recently been a fight and with whom they were on the worst of terms. The next question is whether it can be inferred from the conduct of the accused that their common intention was to cause grievous hurt to Ram Prasad, as distinguished from simple hurt. It is difficult to say that in the heat of the moment any of them applied his mind to the nature of the hurt which they should cause.
4. All that can be said is that they tacitly agreed to beat him with lathis. I take it that the lathis carried by the applicants were of the ordinary kind with which men in the position of the applicants are generally armed. Bach of the assailants was determined to use his lathi as effectively as he was capable of and none of them gave the slightest indication to his companions of placing limitations on the use of a weapon which is frequently deadly in its effect. In my opinion, every one of them must have understood that the attack was likely to result in grievous hurt to their victim. Every one is supposed to intend the probable consequences of his act. I think, therefore, that it is a legitimate inference from the conduct of the assailants in this case that they intended to cause grievous hurt to Ram Prasad. Learned Counsel relies on Dhian Singh v. Emperor (1912) 9 ALJ 180, which is somewhat in conflict with the view I have taken. I, however, find that it was dissented from by a Division Bench of this Court in Hanuman v. Emperor (1913) 11 ALJ 926. The case of Ghauns v. Emperor 1931 Lah 523, has also been referred to. It is much to the same effect as 9 A L J 180(1), and should be considered to be in conflict with the Division Bench ruling above referred to. Apart from the considerations already discussed, I am of opinion that the same conclusion is arrived at by a somewhat different process of reasoning. Where four persons combine to attack with lathis their common enemy, each is abetting the conduct of the other within the meaning of Section 107, I.P.C. and as each one of them is present, Section 114, I.P.C. fully applies. Section 111 of the same Code 'provides:
When an act is abetted and a , different act is done, the abetter is liable for the act done, in the same manner and to the same extent as if he had directly abetted it provided the act done was a probable consequence of the abetment, and was committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the abetment.
5. Assuming that none of the applicants' party definitely thought of causing grievous hurt to Ram Prasad, and if Section 114, I.P.C. otherwise applies, such of them as were not directly responsible for the grievous hurt caused to Ram Prasad should be deemed to have abetted the causing of grievous hurt by the person who actually caused it, provided grievous hurt was the probable consequence of the assault. It seems to me that the test is whether, in the circumstances of a given case, grievous hurt should have been foreseen as the probable result of their concerted action. The case may be different where the surrounding circumstances, including the comparatively harmless character of the weapons used by the assailants, did not make it probable that grievous hurt would result, though it did in the course of the assault through accident or some act of one of the assailants which had not been contemplated by the others. In Barendra Kumar Ghose v. Emperor 1925 23 ALJ 314, at p. 323, their Lordships of the Privy Council adopted a similar line of argument. Having discussed the scope of Section 34, I.P.C., they proceed to discuss Section 114 of the same Code and observe:
As to Section 114, it is a provision which is only brought into operation when circumstances amounting to abetment of a particular crime have first been proved and then the presence of the accused at the commission of that crime is proved in addition.... The section is evidentiary, not punitory. Because participation de facto (as this case shows) may sometimes be obscure in detail, it is established by the presumption juris et de jure that actual presence plus prior abetment can mean nothing else but participation. The presumption raised by Section 114 brings the case within the ambit of Section 34.
6. The whole object of Section 34 and 114, I.P.C., is to provide for cases in which the exact share of one of several criminals cannot be ascertained, though the moral culpability of each is clear and identical. Neither of these two sections should be so interpreted as to defeat the very object which underlies them. I am clearly of opinion that all the applicants have been rightly convicted under Section 325, I.P.C. This application for revision fails, and is dismissed. The applicants shall surrender to their bail.