1. In this case four people were convicted of grievous hurt upon one Jatoo Khan and his wife Khanta Bibi. The injuries upon both of these two people were included in the same charge; but that does not seem to have resulted in any prejudice to anybody. The trying Magistrate found all the four accused guilty and sentenced them to three months' rigorous imprisonment each. The Additional Sessions Judge found them all guilty and sentenced each of them to six weeks rigorous imprisonment and a fine of Rs. 50.
2. Mr. Nausher Ali on behalf of his clients, the petitioners before us, however takes a point that the Additional Sessions Judge has wrongly dealt with the case in the way in which he has applied Section 34, I. P.C. It appears that there was a bamboo clump in the bari of Jatoo and his wife. It is a matter of dispute whether the accused persons had some sort of interest in that bamboo clump but the finding is that Jatoo came out and verbally objected to their cutting the bamboos and it is quite certain that Jatoo's finger was injured and that his wife was hit over the head. The feature of the case is this that the Courts have disposed of the matter on the footing that there was no evidence to show who broke Jatoo's finger or who hit the wife over the head. The evidence as to the part played by each individual accused is such that the Court does not act upon it on the footing that it is sufficient to show who exactly caused the injuries.
2. In that view, the reasoning of the Additional Sessions Judge is shortly this : that these accused persons went to that place with a common intention to assert by force if necessary, the right of Fazoo and Manik in the bamboo clump and he concludes that the grievous hurt was caused by one or more of the accused in furtherance of the common intention and therefore he says that he is entitled under Section 34, I. P.C., to find them all guilty. As to that there can be no doubt at all that the learned Additional Sessions Judge has misdirected himself. If there had been five of these people and they had come to assert a right by show of force so as to bring into operation such a section as Section 149, then, no doubt, if any one of them hit the woman over the head with a lathi in pursuance of the common object, the whole of the party might have been found guilty constructively by virtue of Section 149, read with Section 325, I. P.C. But this is not that case. There were only four people present. We are concerned not with Section 149, but with Section 34. Section 34 is not applicable except in a case where there is participation in action to commit a crime with a common intention. If for example, one of these people had prevented Jatoo from running away and another had held him down and a third had struck him over the head with a lathi, they could all rightly be convicted under Section 325 read with Section 34. The element in Section 149, of being a member of the unlawful assembly has a counterpart in Section 34, viz., participation in action to produce grievous hurt. But it is quite-wrong to say that because they had a common intention to assert a right to the bamboo clump, therefore without showing which of these people took any part' in beating either Jatoo or his wife, they can all be convicted because one of them we do not know-who committed a grievous hurt. There must be participation in action with a common intention to produce grievous hurt, although the different accused might have taken different parts. It seems to me, therefore that Mr. Naushar Ali's criticism of the reasoning of the Additional Sessions Judge is justifiable. It is not quite certain whether there is any material on which it could be said that all of them took part in one way or another in producing this grievous hurt.
3. It appears to me therefore that the correct course is to set aside the findings of the Court of appeal and to direct that the appeal be reheard. The petitioners will remain on the same bail on which they have been released pending the rehearing of the appeal.
4. I agree.