1. The applicants Makka, Ram Charan, Chunni and Chinta were convicted by a learned Special magistrate, 1st Class of Sitapur of offences under Sections 147, 323/149 and 325/149, Penal Code. Each of them was sentenced to six months rigorous imprisonment under the first count, to a fine of rs. 20 under the second count or to two weeks rigorous imprisonment in default and on the third count to 9 months rigorous imprisonment and a fine of rs. 10 with one week's rigorous imprisonment in default. Seven others were also challaned by the police and were sentenced by the learned Magistrate in like manner but they were acquitted in appeal by the learned sessions Jude. The conviction of the applicants under Sections 323 and 325 was maintained. The learned judge, however, reduced the sentences under Section 325 tosix months rigorous imprisonment and a fine of Rs. 10 with a provision for one week's further rigorous imprisonment in default of payment of fine. He maintained the sentence under Section 323, Penal code. There was a finding of acquittal sofar as the charge under section 147 was concerned and in maintaining the conviction of the applicants under Sections 323 and 325, the learned Judge applied the provisions of Section 37, Penal Code. The following facts were found proved against them : (1) That at about mid-day on 8th september 1949, Niaz Ali was repairing his cattle trough in front of hishouse when MAKKA, Ram Charan, Chunni and Chinta appeared on the scene armed with lathis. (2) That the applicants tried to prevent Niaz Ali from repairing the cattle trough and their efforts in that direction resulted in an altercation andexchange of abuse. (3) That Makka Ram Charan, Chunni and Chinta thereupon beat Niaz Ali with lathis and on the latter's alarm, his brother Bashir rushed up to the place to protect him and was also injured, and (4) That the applicants left the place on the arrival of the villagers.
2. The defence alleged enmity with the zamindarsof the village and with the witnesses. Makkais a member of the village panchayat and his casewas that Niaz Ali was encroaching upon a publicway and the village panchayat had ordered thathe should be prevented from doing so. He saidfurther that in trying to prevent Niaz ali frommaking the encroachment the latter and hisbrother Bashir attacked him, that Ram Charanand chinta who came to rescue him on his alarmalso received injuries. This version of the occurrence(sic)was sought to be supported by the evidenceof one Paras Ram Singh but his testimony wasrejected by the courts below. The learned SessionsJudge found that the evidence produced bythe prosecution was sufficient to prove the altercation and the attack by the applicants the remainingseven accused persons very doubtful. Hefurther found that Makka, Ram charan, Chunniand Chinta and similar motive for attacking NiazAli but since similar intention is not the same ascommon intention within the meaning of section 34,Penal Code, he came to the conclusion that theconviction of the applicants could not be foundedon the basis of Sections 34 but section 37 would apply sincethe accused behaved in the same way and theiroutward conduct showed co-operation in the commissionof the offencess.
3. The view taken by the learned Sessions Judge in respect of the application of Section 37 PenalCode, is challenged on behalf of the applicantsand in my opinion rightly section 37, providesthat when a series of acts are done which togetherresult in some thing which is an offence,the doing of any one of them with the intentionof co-operating in the commission of that offencemakes each of the doers liable to be punishedfor the result. The distinction between Section 34 andSection 37 is obvious: the former requires commonintention for a criminal act which is done by a number of persons in order that they shouldbecome liable as if the act was done by each ofthem while the latter deals with the intentionalco-operation in the offence which has resultedfrom several acts, each of which standing by itselfis not the offence with which the accused arecharged. In the present case, the applicants werecharged with the offence of causing simple andgrievous hurt by use of lathis and it is not possibleto say that there were several acts whichresulted in the offence of causing grievous orsimple injuries. The use of s 37, therefore, in convicting the applicants was misconceived. It isclear however that the case falls under Section 34 forthere is doubt that there was s common intention amongst the applicants to commit a crimepunishable under the Penal Code. That intentionis disclosed by the fact that the applicants went up to Niaz Ali fully armed with lethal weaponslike lat his and were determined with enforce theirwill by their use. As held by a Full bench of this Court is State v. Saidu A.I.R. (38) 1951AIL. 21 (F.B.) it is not necessary in order thatSection 34 should apply that the common intentionshould have been to cause the particular resultwhich came about in committing a crime and itis possible to convict a person of an offence if theCourt comes to the conclusion that each personwho took part in committing the crime had preconcertedintention to commit it. If a person,therefore is attacked by less than five personsand grievous hurt is caused all of them can beconvicted under Section 325 with the aid of Section 34 irrespectiveof the consideration as to which of themcaused grievous hurt. The medical evidence inthe case before me shows that Niaz Ali had twoinjurious: [After giving a description of the injuriesthe judgment proceeds:]
4. On the evidence which has been believedby the lower appellate Court, I have no hesitationin holding that the applicants have beenrightly convicted. At the same time I do not take a very grave view of the case for it is apparentthat Makka and the others were trying to enforcesome sort of a public right though they did it in a manner which was wholly unwarranted. Theinjuries indicate that the attack was not intendedto produce grave results. The applicants havealready served terms of imprisonment for a period of one month and in some cases a few dayslonger. They have also paid the fines. In my opinion the imprisonment already undergone issufficient to meet the ends of justice. Whiletherefore maintaining the conviction, I reducethe sentence of imprisonment under Section 325 fromsix months to the period already undergone. Inother respects the sentences are maintained Theapplicants are on bail. They need not surrenderto their bail bonds which will be discharged