1974 Supreme(Raj) 279
RAJASTHAN HIGH COURT
B.P.Beri, J.
Kana and another - Appellant
Versus
State of Rajasthan - Respondent
S.B. Criminal Revision No. 466 of 1971.
Decided On : 11-07-1974
In the absence of a charge for common intention, an accused cannot be held guilty under section 325 IPC based solely on the fact that they were armed with a weapon and present at the scene of the crime.
Headnote:
CRIMINAL LAW - SECTION 325, 323, 451 IPC - FACTUAL MATRIX - COMMON INTENTION - HOUSE - GOWARI - INTERPRETATION - APPLICABILITY - SENTENCING - REVISION APPLICATION - PARTIALLY ALLOWED.
Fact of the Case:
A quarrel between women from two parties escalated into a physical altercation at night. The applicants, Kana and Ramnath, along with others, went to the complainant's house, armed with weapons, and assaulted the complainant and his family members, causing injuries. The trial court convicted both applicants under sections 325, 323, and 451 of the Indian Penal Code (IPC). On appeal, the convictions and sentences were upheld for Kana and Ramnath, while the other accused were acquitted.
Finding of the Court:
The court found that the evidence was consistent against Kana and Ramnath, and that they had caused injuries to the complainant and his family members. However, the court acquitted Kana of the charge under section 325 IPC, as there was no evidence of common intention to cause grievous injury.
Issues: 1. Whether Kana could be held guilty under section 325 IPC, despite the absence of a charge for common intention. 2. Whether the structure in question, referred to as a 'gowari,' could be considered a 'house' within the meaning of section 451 IPC.
Ratio Decidendi: 1. The court held that in the absence of a charge for common intention, Kana could not be held guilty under section 325 IPC, as there was no positive evidence to establish his intention to cause grievous injury. 2. The court relied on the precedent set in Wali Mohammed v. Emperor, AIR 1929 Sind 17 (2), which held that a building, whether covered or not and made of any materials whatsoever, would be considered a 'house' within the meaning of sections 380 and 452 of the IPC. Therefore, the court concluded that the 'gowari' in question could be considered a 'house' for the purposes of section 451 IPC.
Final Decision: The court partially allowed the revision application. Kana was acquitted of the charge under section 325 IPC, while his conviction and sentence under sections 323 and 451 IPC were upheld. Ramnath's conviction and sentence under sections 323 and 451 IPC were also upheld. The court reduced the fine imposed on both applicants under section 451 IPC and directed them to deposit the amount within one month, failing which they would undergo 15 days of rigorous imprisonment each.
JUDGMENT
1. - This is a revision application directed against the judgement of the learned Additional Sessions Judge No. 2 Jaipur City, dated August 3, 1971 whereby he partially maintained the judgement of the learned Additional Munsif Magistrate No. 4, Jaipur city, convicting the two applicants Kana and Ramnath before me, as under:-
1. Kana :
u/s 325 IPC sentenced to 3 months RI and a fine of Rs. 100/-, in default, one month RI u/s 451, Indian Penal Code sentenced to 3 months RI and a fine of Rs. 100/-, in default, one month RI.
2. Ramnath : u/s 323, Indian Penal Code sentenced to 1 month RI and a find of Rs. 100/-, in default, one month RI
u/s 451, Indian Penal Code sentenced to 1 month RI and a fine of Rs. 100/-, in default, one month RI.
2. The circumstances which have led to this revision application briefly stated are these.
3. The ladies belonging to the party of the applicants and that of the complainant had some quarrel on November 5, 1965 but it was a mere wordy warfare and that arose on account of the fact that certain cattle had trespassed, but this was enough to provide the bone of contention. At about 10-11 p.m. in the night when complainant Chootu and his son were sleeping Bhola and his sons Kanaram, Ramnath, Ramnarain and Bhoora went to their house shouting abuses and when they were asked not to abuse they stated beating them with farsi and lathis. Ram Sahai and complainant's wife and others are said to have intervened but they are also said to have been injured. Consequent to first information report a case was registered by the police and the learned Additional Munsiff Magistrate No. 4 Jaipur City found all the five persons guilty under sections 323, 325 and 451, Indian Penal Code. An appeal was taken which came to be decided by the learned Additional Sessions Judge who acquitted Bhola, Ramnarain and Bhoora accused but maintained the convictions and sentences of Kana and Ramnath as already stated at the out set. Aggrieved, they are before me.
4. Mr. Garg appearing for the applicants urged firstly that infliction of grievous injury is not proved against Kana. The reason, urged the learned counsel, is that Kana was armed with a farsi and the grievous injury has been caused on left hand 2nd meta carpel shaft which had no lacerated wound not withstanding the fact that the witnesses are clear that farsi was used from its edged side.
5. Learned Additional Advocate General urged that who ever may have caused the injury but by virtue of section 34, Indian Penal Code, Kana can be held to be guilty under section 325, Indian Penal Code.
6. There was no charge for common intention. In the circumstances, I am unable to conclude common intention for a variety of reasons, the primary being that after all it was women' quarrel and there could have been different intentions in the minds of different persons. The positive evidence is that people other than Kana had hurt Bhoora on his hand and caused fracture of 2nd meta carpel shaft, but in the absence of positive evidence it will be extremely difficult to hold Kana guilty under section 325, Indian Penal Code, and I accordingly, acquit him of that charge.
7. The charge under section 323, Indian Penal Code, abundantly proved. The evidence is consistent that Kana had gone there armed with a farsi and had used it and normally one does not go with a farsi at late hours in the night for innocent purposes. I therefore, maintain his conviction under section 323, Indian Penal Code.
8. Likewise, Ram Nath was also one of the companions who had gone armed with a lathi at 11 P.M. is no time make any friendly visit unless it was a case necessitated on account of some domestic distress. The prosecution evidence is consistent against him and I, therefore, maintain his conviction under section 323, Indian Penal Code.
9. Now, remains the conviction under section 451, Indian Penal code. Learned counsel for the applicants argues that a 'gowari' is not a house because the one in the instant case, was not use
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