C.A. VAIDIALINGAM, J.
1. This appeal, by special leave, is directed against the judgment and order of the Patna High Court, dated January 10, 1968, in Criminal Appeal No. 514 of 1966, convicting the above two appellants for an offence under Section 326, read with Section 34 of the Indian Penal Code, and sentencing them to undergo rigorous imprisonment for three years. The Sessions trial proceeded against the two appellants as well as one other accused Madan Singh. Madan Singh was convicted both by the Sessions Judge as also by the High Court for an offence under Section 307 IPC and sentenced to five years' rigorous imprisonment and to pay Rs 50 as fine. This Court declined to grant special leave to Madan Singh.
2. The prosecution case was briefly as follows: One Uma Shankar Singh, PW 1 was going to his residence at about 7.30 p.m. on September 3, 1965. When he was about to reach his residence, the three accused approached him. Madan Singh is stated to have remarked, “You have become a wrestler and have assaulted my uncle”. At that time, the two appellants before us are alleged to have incited Madan Singh by saying “Assault the rascal, it is good that he has been found all alone”. On hearing this, PW 1 started running away; but all the three accused chased him and he was caught hold of by the appellants, while Madan Singh inflicted injuries on his neck and head with a Chhura, as a result of which he sustained serious injuries. Dr Tejnarain PW 9 noted the following two injuries on his person:
‘(1) Incised wound, size 4″ × 2″ × 2″ on the right side of the head on the occupital bone.
(2) Incised wound 3″ × 2″ × 1-1/2″ on the right side of the neck at the middle of right eternmostoid muscle.’
3. According to PW 9 both the injuries were grievous and were caused by sharp cutting weapon such as Chhura and that these injuries were sufficient to cause death in the ordinary course of nature. PW 1 was in the hospital as an indoor patient from September 3, 1965 to September 30, 1965, for a period of 27 days.
4. PW 1 was carried by some of the local residents to the police station Semri where he gave the first information report at about 11 p.m. the same day. In the said report he has referred to all the three accused. He has referred to the attack made on him by all the three accused and to the injuries sustained by him at the hands of Madan Singh with a Chhura. He has also mentioned the names of certain person who had witnessed the occurrence.
5. The plea of Madan Singh and the two appellants was one of complete denial. They pleaded that the prosecution witnesses were giving evidence due to enmity.
6. The learned Sessions Judge, after a consideration of the evidence, convicted Madan Singh of the offence under Section 307, IPC and sentenced him to undergo rigorous imprisonment for five years and also imposed a fine of Rs 50. So far as the appellants are concerned, they were convicted under Section 307, read with Section 34 IPC and the same sentence was imposed on each of them. The findings of the learned Sessions Judge are to the effect that the appellants caught hold of PW 1 at the time of the incident and Madan Singh took out a Chhura and inflicted the injuries found on him. The learned Judge has rejected the plea of the accused denying their guilt as also the further plea that the prosecution witnesses were giving evidence due to enmity. The further finding of the learned Judge is that all the three accused had pre-planned to murder PW 1 and for that purpose they were waiting for him and the attack of PW 1 took place in furtherance of the common intention of all of them. On these findings the learned Sessions Judge sentenced the accused as above.
7. The High Court, as mentioned earlier, has confirmed, the conviction and sentence as against Madan Singh. As special leave has been refused by this Court, so far as he is concerned, his case is no longer before us. Regarding the appellants, the High Court's view is that PW 1 has not specifically referred in the first information report to the fact of the appellants' catching hold of him when Madan Singh inflicted the injuries on him with the knife. Though in the evidence, PW1 has referred to the appellants' catching hold of him, inasmuch as that particular aspect has not been referred to in the first information report, the High Court held that it would not be safe to accept that part of his evidence given before the Court. Further, the High Court is also of the view that though the appellants chased PW 1, along with Madan Singh, and also incited Madan Singh to assault PW 1, and that the incident took place in furtherance of a common intention of all the three accused, nevertheless, it cannot be said that the appellants incited Madan Singh to kill PW 1. On this reasoning the High Court held that the appellants could not be convicted for the same offence as Madan Singh, namely, under Section 307, read with Section 34 IPC. On the other hand, the High Court held the appellants guilty of a lesser offence under Section 326, read with Section 34 IPC and, in consequence sentenced each of them to undergo rigorous imprisonment for three years.
8. Mr S.K. Mehta, learned counsel for the appellants, quite naturally took advantage of the above findings recorded by the High Court in favour of the appellants for reducing the nature of the offence committed by them. On the basis of those findings, counsel rather strenuously urged that his clients should not have been held guilty even of the offence under Section 326. The contention of the learned counsel is that the High Court has not recorded any finding that the instigation by the appellants was for any grievous hurt being inflicted on PW 1 by Madan Singh. Therefore, according to the learned counsel, the appellants are either entitled to an acquittal, or, in the alternative, they could be convicted only for a very minor offence of assault under Section 352 IPC.
9. We have considered the reasons given by the High Court for reducing the offence as against the appellants to one under Section 326 and we are satisfied that there is no merit in the appeal. The High Court, so far as the appellants are concerned, has categorically found the case of the prosecution to be true to this extent, namely: that the appellants along with Madan Singh chased PW 1; that the appellants were aware of the remark made by Madan Singh to PW 1, referred to earlier; that they instigated Madan Singh to assault PW 1 and that they had a common intention that PW 1 should be assaulted and that it was in pursuance of such a common intention that PW 1 was assaulted by Madan Singh.
10. No doubt it is true that the High Court has held that the evidence does not disclose that the appellants incited Madan Singh to inflict on PW 1 such injuries as are likely to endanger his life. But it must be noted that both the learned Sessions Judge as well as the High Court have proceeded on the basis that the appellants must have been fully aware of the weapon with which Madan Singh was armed. The finding is that the incident took place in furtherance of the common intention of all the three accused to cause injuries to PW 1. The incitement by the appellants, under these circumstances, must have been with a view that at least grievous hurt is caused to PW 1. As already mentioned PW 1, was in the hospital as an indoor patient for over 21 days. Though the appellants have been absolved of the more serious offence under Section 307 IPC, the High Court was justified in convicting the appellants for the offence under Section 326, read with Section 34 IPC having due regard to the nature of the injuries sustained by PW 1.
11. We are satisfied that the High Court's view is correct. The appeal fails and is dismissed. The appellants will surrender their bail.