1. These two revisions arise out of the conviction of the four accused under Sections 323/34, I.P.C. by the appellate Court below and the sentence of Rs. 400/- each in default three months' rigorous imprisonment out of which Rs. 500/- has been ordered to be paid as compensation to the complainant Sri Krishna Misra. Criminal Revision No. 1565 of 1980, has been filed by the accused and was pressed only on the question of sentence while Criminal Revision No. 1676 of 1980 has been filed by the complainant against the acquittal of the accused persons under Sections 325/34, I.P.C.
2. According to the findings of the lower appellate Court the accused persons had beaten the victim; Kalika Singh by a lathi and the other three accused by fists. The lower appellate Court also found that the victim suffered no less than 15 injuries, 5 contusions, 5 abrasions, 2 traumatic swellings, 2 complaints of pain and one lacerated wound on the left thumb. The left thumb had also a fracture of the phalanx. These details are found in the trial Court's judgment also. The learned Counsel for the complainant also showed to me a copy of the injury report which discloses limbwise the distribution of the injuries to be as follows:
Left leg and foot: 1 contusion, 1 abrasion and 2 swellings. Right leg and foot : 2 contusions and 1 abrasion.
Right forearm: 1 contusion and 1 abrasion,
Right shoulder : l abrasion.
Complaints of pain on right hip and left elbow joint face: 1 contusion, 1 abrasion and 1 lacerated wound.
The lower appellate Court however took the view that as no witness has deposed that the thumb injury was caused by the lathi and they had admitted that the victim had fallen as a result of beating, the chances were that the thumb injury was caused by the fall and not by the beating. The learned Judge observed that this was all the more likely as generally people are right handed and use right hand for self-defence and not the left,
3. The reasoning of the lower appellate Court cannot be sustained. After the finding that the four assailants one armed with lathi and the others by fists gave a beating to the victim and that the injuries including the grievous injury of the thumb were caused during this beating the bare fact that there was also an admitted fall during the beating cannot justify the finding that the thumb fracture under a lacerated wound was caused by the fall and not by the lathi. This finding is based on mere surmises and conjecture. The witnesses did not have to specifically say that the thumb injury was caused by a lathi until a specific question about the source of the thumb injury was put to the victim. This apparently was not done. Therefore, the finding should have been that the injury was caused in the course of the beating. But apart from this even if it is taken that it was caused while the man fell during the beating that does not dissociate it from the beating to such an extent as to destroy the causal connection. Considering the number and nature of the injuries, the fall and immediate and natural consequences of the fall would remain the result of the beating as much as direct injuries resulting from the blows inflicted. The argument about the thumb injury being unlikely from the lathi blow as the right hand is generally used defensively against a lathi attack ignores the position that in this case not less than 5 injuries are on the left leg, foot and elbow joint. If the blow is coming from the left even a right handed man may very well stick out the left hand to ward off the blow. I would, therefore, hold that the finding about the lathi injury not being caused by the assailants is palpably erroneous and legally perverse finding that it was so caused.
4. The question would then arise whether on this injury the accused should be convicted under Section 325/34, I.P.C. There is no doubt that common intention is necessary. But where one accused carries a lathi and the others are using their fists, the finding is of joint beating and the number of injuries is as indicated earlier of the order of 15 a common intention to cause hurt through use of lathi can be safely imputed. Under Section 322, I.P.C. even if the person knows himself likely to cause grievous hurt he is said to be voluntarily causing grievous hurt. Therefore, in having the common intention of causing hurt if the accused persons can be imputed the knowledge that they were likely to cause grievous hurt they would be jointly liable under Section 34 for the grievous hurt caused. Now where a lathi is used quite a few times as the five contusions apart from the lacerated/wound show even ignoring abrasions and swellings even if it is not used on vital parts a minor injury like fracture of a phalanx can easily get caused and the assailants must be imputed the likelihood of such an injury in the course of the assault. At any rate unless they can exclude such knowledge or an intention to specifically avoid such injury by cogent and reliable evidence. Therefore, on the material on record the conviction should have been under Section 325/34 I.P.C. as was recorded by the trial Court,
5. So far as the question of sentence goes in the circumstances 1 think the sentence of Kalika Singh does not call for any reduction. But in case of others, I would reduce the fine to an amount of Rs. 300/- each.
6. Accordingly, Crl. Revision No. 1676 of 1980 is allowed and Crl. Revision No. 1565 of 1980, is partly allowed. The conviction of the revisionist is converted from Sections 323/34 to 325/34 I. P. C, for which they are sentenced as follows : All of them are sentenced to rigorous imprisonment for the period already undergone following the judgment of the trial Court and before the release on bail by the lower appellate Court. In addition Kalika Singh shall pay a fine of Rs. 400/- in default three months' rigorous imprisonment and each of the other three appellants a fine of Rupees 300/- in default rigorous imprisonment for three months. Out of the fine if realised a sum of Rs. 500/- shall be paid to the complainant as ordered by the lower appellate Court.