Rafi Hasan and Others vs State of U.P.

J. C. Mishra, J.—This revision has been directed against the order dated 1st December, 1983 passed by the Sessions Judge, Bareilly, dismissing the appeal preferred against the order dated 7th September, 1983 passed by the Judicial Magistrate, Bareilly convicting the revisionists for offences punishable under Sections 325/323/34 I.P.C. and releasing them on probation of good conduct.

List revised. None appears for the revisionists. Heard learned Additional Government Advocate and perused the record.

In the grounds of revision it is stated that there was no common intention to commit the crime complained of and therefore, the Courts below committed illegality in convicting the accused with the aid of Section 34, I.P.C.

The prosecution case is that the revisionists who were 4 in number had assaulted the victim with lathis. On medical examination the injured was found to contain 11 injures. One of the injuries was grievous. In view of the fracture the learned Magistrate convicted all the accused with the aid of Section 34 I.P.C. It may be also noticed that only one of the 11 injuries caused to the victim was grievous. It was not known who was the architect of this injury. From the circumstances of the case it does not appear that the common intention of the assailants was to cause the fracture. In these circumstances the learned Magistrate committed illegality in convicting the accused under Section 325/34 I.P.C. There is, however, no doubt that all the accused attacked the victim jointly and caused the injuries. Their common intention was to cause simple hurt to the victim. They were rightly convicted under Section 323 with the aid of Section 34 I.P.C.

The learned Magistrate has discussed the prosecution evidence in proper perspective. He has also considered the arguments raised from the side of the defence and dealt with them in his reasoned order. The learned Additional Sessions Judge has also considered the pleas raised before him and held that the prosecution case proved bevond shadow of doubt. The learned Magistrate took lenient view and instead of sentencing the accused for imprisonment release them on probation of good conduct.

The revision is partly allowed. The conviction of the revisionists under Section 325/341.P.C. is set aside. Their conviction under Section 323/34 is maintained. The accused revisionists have already released on probation of good conduct. They shall furnish the bonds as directed by the appellate Court within 3 months from the date of service of notice, which shall be sent by the Magistrate communicating the result of this revision and directing them to furnish bonds. The stay stands and is hereby vacated. Revision partly allowed.