1. The accused were on inimical terms with one Jaganath now deceased & there were some disputes going on between them before the Revenue Courts. On 13-7-1952 the deceased Jaganath was working in a field which belonged to the accused Keshya and was taken by the deceased in lieu of his debt. The deceased was working in the field since mid-day assisted by his servant one Shankar Chamar. When both of them were returning from the field in the evening and were crossing a nala on the way they were attacked by the three accused with lathies. Shankar ran away but Jaganath was mercilessly beaten and sustained .12 injuries which included a compound depressed, fracture of the left temporal bone. Jaganath died as a result of these injuries on the following day.
2. Upon these facts the three accused along with two other persons were put up for trial under Sections 302/149/147, I.P.C. The Additional Sessions Judge Dewas acquitted the other two persons but convicted the three appellants under Section 325, I.P.C. and sentenced each of them to rigorous imprisonment for 7 years. Aggrieved by this, the accused have preferred this appeal against their conviction and sentence.
3. Mr. Rege, the learned Counsel for the appellants urged that the lower Court has found that there was a mutual fight between the two parties, but the learned Judge has failed, to determine which party had commenced the assault. The learned Counsel contended that the injuries on the body of the deceased were not those of rod marks but were such as could be caused by fall. P. W. 2 Shankar and P. W. 20 Amara have stated that the deceased Jaganath was beaten by sticks. The story given out by the prosecution witnesses was thus not correct. The learned Counsel also submitted that there was no charge under Section 34, I.P.C. though the learned Judge had made use of this section in determining the guilt of the accused.
4. The accused No. 1 Dewa has denied the offence but has admitted that there was a fight but according to him it was due to an attack upon him by Jaganath and Shankar and that it was he who was the sufferer in that. Shankar's presence on the scene is thus directly admitted. According to Shankar while they were going through the nala, the three accused attacked Jaganath with sticks. The witness himself was also attacked but he escaped and ran away. From a distance, ho looked back, and saw the three accused hammering Jaganath. P. W. 20 Amara, who was some distance behind Jaganath and Shankar corroborated Shankar. He saw the three accused beating Jaganath. Amara is the person who reported the incident at the Police Station and has lodged the first information report which contained the names of the three accused. The accused were arrested the same day and on medical examination found to have injuries on their bodies. That Jaganath sustained injuries at the place of occurrence and was found lying there unconscious is no longer in dispute. In my opinion there is thus enough material on record to hold that the accused beat the deceased Jaganath.
5. The next question for determination is under what section should the accused be convicted. Mr. Rege, the learned Counsel for the appellants, urged that the accused were, charged under Section 149 for participating in beating with the common object but there was nothing in the charge-sheet to suggest that the accused were being charged for common intention which is a material ingredient Of Section 34, I.P.C. He also criticised the finding of the Additional Sessions Judge regarding common intention and pointed out that all the accused had not assaulted Jaganath together and had reached the spot one after the other.
6. The last argument does not appeal to me. According to P. W. Shankar all the three accused had concealed themselves in the shrubs and had attacked Jaganath. The mere fact that Dewa started beating him first and others followed will not be enough to take the case out of Section 34, I.P.C. The difficulty is however created by the fact that the accused are not charged under Section 34, I.P.C. though they have been charged under Sections 149 and 147, I.P.C. But a common object of the crime is materially different from the common intention of the accused in the commission of the crime. In the case of - 'Dalip Singh v. State of Punjab' : 1SCR145 , their Lordships have indicated that two are different and that in the absence of an alternative charge under Section 34 it would not be possible to convict the accused charged under Section 149 for any supposed common intention. Their Lordships' observation at p. 366 is to the following effect:
Nor is it possible in this case to have recourse to Section 34 because the appellants have not been charged with that even in the alternative and the Common intention required by Section 34 and the common object required by Section 149 are far from being the same thing.
In the present case there is no evidence to show who gave the blows which caused the fractures. Under the circumstances each accused can be convicted only under Section 323, I.P.C. Accordingly I alter the conviction from 325, I.P.C. to 3. 323 I.P.C. and reduce the sentence of each of them to rigorous imprisonment for one year.