Ravindra Yadav and Surender Yadav vs The State of Bihar and Ganesh Mahto

S.N. Pathak, J.—This revision is directed against the judgment dated 17.1.2000 passed by 5th Additional Sessions Judge, Gaya, in Cr. Appeal No. 41/99 confirming the judgment dated 19.8.98 passed by Judicial Magistrate, 1st Class, Gaya,. in CR. case No. 2794/94, Trial No. 52/98. The revisionists were charged under Sections 323, 324 as also, 326/34 I.P.C.

The case of the prosecution as reported through the written report of the informant was that on 22.12.94 at 5 P.M., the informant Ganesh Mahto and his brother Raghunandan Mahto were irrigating their field. Suddenly two accused revisionists came there armed with lathi and garasa. The informant''s brother Raghunandan Mahto was assualted with lathi by accused Ravindra Yadav. When the informant Ganesh Mahto came to rescue of his brother, he was subjected to assault with garasa by Surender Yadav.

The trial Court on the evidence adduced by the prosecution held the accused-revisionists guilty for the offences under Sections 323, 324 and 326/34 I.P.C. Both the revisionists were sentenced to undergo R.I. for two years for the offence u/s 326 I.P.C. and six months R.I. for the offence u/s 323 I.P.C. No separate sentence was passed for the offence u/s 324 I.P.C.

It has been submitted by the revisionist''s lawyer that the informant''s party were the aggressor because they had trespassed over the land of the accused and there is no land of the informant near the land of the accused and hence there was no question of irrigation. However, on perusal of the evidence adduced by the prosecution, the two courts below gave a concurrent finding that assault upon the informant and his brother took place during the course of irrigation of their own field. So, I think that there is no reason to disagree with the findings of fact recorded by the two courts below. As far as the conviction of the accused revisionists for the offence u/s 326 I.P.C, read with Section 34 I.P.C. is concerned, I think that the evidence in the lower Court was not so as to fix the responsibility on the parti of both the revisionists to assault the informant Genesh Mahto with garasa. This is so because it was Raghunandan Mahto who was assaulted by lathi by Ravindra Yadav and there was no assault upon him by accused Surender Yadav who was armed with garasa. If both of, them had any common intention, Raghunandan Mahto should also have been assaulted with garasa. When the informant came to rescue of his brother, he was subjected to assault by accused Surender Yadav who was armed with garasa. So, it is apparent that both the accused revisionists assaulted the two brothers with the weapons they had in their possession. The circumstances of the case and the manner and sequence of assault do not indicate that both of them had any common intention. So, the conviction of the two revisionists under Sections 323, 324 read with Section 34 I.P.C. was, perhaps, vitiated by legal misapplication. In the same way, conviction of the two accused-revisionists u/s 326/34 I.P.C. is also legally bad.

In the result, this revision is dismissed, but with the following modification in the order of conviction and sentence. The order regarding accused, Ravindra Yadav, who is convicted for the offence u/s 323 I.P.C. and is sentenced to six months imprisonment shall remain intact. So far the accused Surender Yadav is concerned, he is convicted u/s 326 I.P.C. only, and is sentenced to undergo R.I. for one year. His sentence of two years is thus reduced to one year because there was no repetition of assault by him and the injury upon the scalp was only bone-deep and it is not clear from the injury report whether his bone was cut also. The conviction of Ravindra Yadav u/s 326 I.P.C. and sentence therein is set aside.