M.C. Jain, J.
1. The appellants Dhayala and Suitan have been convicted under Section 326 read with Section 34 IPC and have been sentenced to three years rigorous imprisonment and to a fine of Rs. 200/-, in default of payment of fine to undergo two months rigorous imprisonment by the learned Sessions Judge, Jhurjhunu by his judgment dated i8-9-74.
2. The prosecution case in brief is that the injured Matu and Dhayala accused are brothers. They have got a field comprised of Khasra No. 83 situated in village Bas Tokha. In Jamabandi of Samvat 2026to 29, the same was recorded in the name of Maturam having two third share and Dhayala accused having one third share. The prosecution case is that on 11-7-71 in the morning Maturam arid his son Bajrarjga went alone with their cattle and camel to that part of the field, which was lying vacant. In the nearby lend of the field, their Bajra crop was standing. It is said that Dhayala and Sultan accused appellants and four other accused persons, namely, Roopchand, Mst Sarasvati Mst Parmeshwari and Mst. Banarsi were already present at the spot, The male accused persons were armed with farshis and the female accused persons were aimed with Kasiyas. When the cattle entered into the fallow lard, the accused persons asked Maturam and his son to remove the cattle and simultaneously, they opened the attack on them. Maturam and Bajranga were followed by Om Prakesh, the son of Maturam & Mst. Chandli the wife of Maturam. These two persons are also said to have witnessed the occurrence. Matu received as many as nine injuries. Injury no 2 was is grievous one inflicted by blunt object and except injury no 7 the rest of the other injuries were caused by sharp edged weapon. Bajranga received two injuries Injury No. 1 was an incised would on the skull, which resulted into fracture of she skull bone. The other injury was swelling and tenderness on the left elbow After inflicting blows, the accused persons went away to their field The injured persons were removed to the hospital and Mst. Chandli visited the police station, Surajgarh and lodged the report at 3 30 p.m. on that every day. On this report, case under Section 307/149 IPC was registered. The injured persons were got medically examined After usual investigation, charge sheet was presented against all the six accused persons. After inquiry the accused persons were committed for trial to the court of Sessions Judge Jhunjhunu.
3. All the accused persons were charged far the offences under Sections 448, 148, 307/143 326, 325, 324 & 323 read with Section 149 IPC The accused persons pleaded not guilty to the charges and claimed to be tried.
4. The prosecution examined as many as ten witnesses. The statements of the accused persons were recorded, in which they denied the prosecution case and in defence, they examined three witnesses After hearing the parties, the learned Sessions Judge acquitted the four accused persons, namely. Roopchand, Mst. Sarswati Mst. Banarsi & Mst. Parmeshwari of the offences, with which they were charges. The accused persons Dhyala & Sultan were also acquitted of ail other offences and they were only convicted for the offence under Section 326 read with Section 34 IPC and were sentenced as aforesaid Dissatisfied with their convictions and sentences, these two accused persons have preferred this appeal.
5. I have heard Shri O.C Chatterji, learned Counsel for the appellant and Shri D.S. Shisodia, learned P. P. for the State.
6. On behalf of the appellants, Shri. O.C. Chatterji, 1st of all contended that the appellants were acquitted of the offence under Section 447 IPC by the learned Sessions Judge as he found that the appellants were in possession of the land where the occurrence took place. It is in their land that the complainant party committed trespass and they started grazing their cattle on the land of the appellants. The appellants were within their right to came injuries on the person of Maturam and Bajranga in exercise of their property. The injured persons had no right to get their cattle grazed over the land in question. Shri Chatterji carried me through the finding of the learned Sessions Judge on point No. 3 and submitted that there was ad-interim order of injunction issued on 25-5 71 by the Sub Divisional Magistate Jhunjhunu in a suit for declaration and division of holding, in which the defendant Maturam was restrained from interference in the plaintiff's cultivation over one-third eastern part of the field in question. The learned Sessions Judge has relied upon the statement of Jairam, besides this ad-interim injunction Ex. E. 6. According to him the accused persons were in possession of the land in question and so, the complainant party committed trespass over his land and allowed grazing of cattle. So, from this face right of private defence arises in favour of the accused persons
7. Shri Shisodia, on the other hand, submitted that no right of private defence of property arises in this case to the appellants. He urged that from the evidence on record, such a right does not arise nor it was pleaded by the accused persons in their statements He also urged that from the statements of the two injured persons and the other witnesses, it is amply proved that the fallow land was in possession of Maturam injured. He also urged that admittedly, the land is a joint land, as the accused Dhayala had filed a suit for partition of the land and as such, there can be no question of trespass committed by the injured persons. Both the injured persons could visit the fallow land and get their cattle grazed, as the land in question admittedly, according to the accused persons was a joint one. In such a situation, not of private defence will arise He also submitted that it is on this very basis that the ad-interim injunction order was vacated by the learned Sub-Divisional Magistrate Besides, this he also pointed out that from the record,, it is not established that the fallow land fell within one third portion of the field. So, on that basis as well, it cannot be said that the fallow land was in possession of the accused persons.
8. I have carefully considered the rival submissions and I do not find any force in this contention advanced on behalf of the appellants It may be pointed out that the accused Dhayala himself had filed a suit for division of holdings and on that basis, it can be said that Maturam was a cotenant in the disputed field That being so it cannot be said that the Adhai (fallow land) was in exclusive possession of the accused Dhayala. It is true that on other respective portions of the land, Bajra crop of both the parties was standing but the dispute relates to the land lying in between the land on which crop was standing on both the sides. If the prosecution evidence is examined and scrutinised, it can be found that this fallow land was in possession of the injured Maturam. On behalf of the appellants, my attention was drawn to the statement of Mst. Chandli, where she has stated in cross-examination that at present the land in question is in possession of the accused persons. In this connection, it may be pointed out that the statement of Mst. Chandli was recorded on 8-7-74 and the occurrence took place on 11-7-71. She has categorically stated that at present, the land is in possession of the accused persons. Simultaneously, she also stated that she does not know as to whether the accused persons are in possession of the land through receiver or not From this statement of Mst. Chandli, it cannot be found that at the time of occurrence, the disputed fellow land was not in possession of Maturam. In her examination-in-chief, she categorically stated that the fallow land was in their possession. Similar is the testimony of Bajranga injured PW 1 Om Prakash PW 2 and Maturam PW 8 In examination-in-chief Jayram PW 7 stated that Dhayala used to cultivate the fallow lard previously. His statement is not clear on the point upto what time Dhayala cultivated the fallow land. This witness simultaneously, also deposed that during the days of occurrence, Maturam used to get his cattle grazed over the fallow land. Thus, in the light of the evidence on record, it cannot be found that the appellants were in possession of the fallow land and that the injured persons allowed to enter their cattle and thereby committed trespass. As such, in my opinion, no right of private defence with regard to the property arose to the appellants.
9. Shri Chatterji further contended that the four accused persons have been acquitted by the learned Sessions Judge. From the facts and evidence on record, it appears that the occurrence took place at the spur of the moment. There was no common intention on the part of the appellants to cause any grievous hurt to any of the injured persons. This part of the prosecution case is not established that the accused persons were lying in wait of the injured persons concealing themselves in the Bajra crop and this part of the prosecution case is also not established that the accused persons exhorted the injured persons to remove their cattle else they will be killed. From the manner, in which the occurrence took place, no common intention can be ascribed to the appellants. He urged that there is a distinction between common intention and similar or same intention. In case, it is found that there was no common intention on the part of the appellants, then none of the appellants can be held guilty for the offence under Section 326 IPC simpliciter. He supported this contention by making reference to some case law.
10. The learned Public Prosecutor, on the other hind, urged that that from the prosecution evidence, it is proved that when the injured persons entered in the fallow land with cattle, the appellants were present armed with pharsis and after exhorting to remove the cattle, both the appellants wielded their pharsis and inflicted blows on Maturam and Bajranga From the conduct of the appellants, necessary inference of common intention arises & the learned Sessions judge was right in convicting the appellants under Section 326 IPC by application of Section 34 IPC
11. Having gone through the evidence on record, I am satisfied that the appellants have been rightly convicted under Section 326 read with Section 34 IPC From the conduct of the appellants, in my opinion, common intention can necessarily be inferred. It may be pointed out that the accused persons were present in the fallow land firmed with pharsis and soon on entering of the injured persons with their cattle, and simultaneously, asking for removal of the cattle, the appellants inflicted blows with pharsis. It is true that there is no grievous injury with sharp weapon on the person of Matu but Matu has sustained as many as incised wounds. Bajranga has received grievous sharp weapon injury on his head, at the hands of Sultan but by application of Section 34, both the appellants can be held guilty of the offeree under Section 326 IPC When the appellants were armed with pharsis and in all seven incised wounds were caused by them on both the injured persons, it cannot be said that the occurrence took place at the spur of the moment. The manner, in which the occurrence had its inception or origin, is clearly suggestive of common intention on the part of the appellants. Even if the case of alleged concealment or alleged exhortation is not proved by the prosecution, still from the conduct of the appellants and the origin of the occurrence, common intention can be attributed to the appellants Thus I hold that the appellants have been rightly convicted for the offence under Section 326 IPC read with Section 34 IPC
12. Lastly, it was urged on behalf of the appellants that more that eighty years have elapsed, the appellants have remained in custody during the trial and after trial for a period of about one month, both the parties are near relations being brothers. So, a lenient view in she matter of sentence may be taken. Considering the facts and circumstances, in my opinion, one year's rigorous imprisonment and a fine of Rs. 1,000/- each would meet the ends of justice.
13. Accordingly, this appeal is partly allowed, while maintaining the conviction of the appellants, their sentence is reduced from three year's to one year and to a fine of Rs. 1,000/- each, in default of payment of fine, each one of the appellants shall undergo six months rigorous imprisonment. The appellants arc on bail, they shall immediately surrender. The Chief Judicial Magistrate, Jhunjhunu is directed to effect the arrest of the appellants to serve out the remaining sentence.