A person cannot be convicted of causing grievous hurt under Section 325 IPC if they did not have the intention to cause serious injury and the injury was not endangering human life.

( 1 ) THE appellant has filed this appeal for putting a challenge to the order of conviction and sentence passed by the Addl. Sessions Judge Dhar Camp Manawar in the matter of Sessions Case No. 38/86 by which he convicted the appellants for offence punishable under Ss. 325 and 323, IPC and sentenced him to RI of different terms.

( 2 ) THE prosecution case in brief can be stated as under. On 25-5-85, at about 9. 00 or 9. 30 p. m. there was a feast in context with marriage of Gula Bhilala at village Bagpura and deceased Naharsingh had attended the said dinner along with other friends. The prosecution alleged that at the time of the said feast there was quarrel between Naharsingh and his associates on one side and appellant and his associates on other side. In the said quarrel, accused appellant Ratansingh Bhilala pelted a stone which hit the abdominal portion of the body of deceased Naharsingh which resulted in injury to his intestine and his death.

( 3 ) AFTER necessary investigation, the accused appellant was put to trial along with one Jama son of Kishan Bhilala. The case was committed to the Sessions Court Dhar. The Addl. Sessions Judge Dhar Camp-Manawar after recording the evidence of the witnesses and appreciating it in the light of the arguments advanced on behalf of the parties, concluded that it was proved that the appellant had caused death of deceased Naharsingh by pelting stone and causing injury to his abdominal portion of the body which caused injury to his intestines. In view of the said finding, convicted the accused appellant for offence under Ss. 325 and 323 IPC. He acquitted the appellant from the charge of committing offence punishable under S. 302 read with S. 34 IPC. Advocate representing the state did not submit that the State has challenged the said order of acquittal. He justified the order of conviction and sentence.

( 4 ) LEARNED counsel for the appellant challenged the conviction on merit on the ground that the evidence of prosecution witnesses is discrepant and avoid of credence. After examining the evidence on record, this Courts finds no substance in the said submission because discrepancies in the evidence pointed out on behalf of the appellant are not sufficient enough to make the prosecution evidence disbelievable so far as occurrence of the incident in question is concerned.

( 5 ) LEARNED defence counsel submitted that the learned trial Judge committed error in sentencing the appellant and sending him to jail and not giving him the benefit of S. 6 of the Probation of offenders Act. He urged that the incident took place when the appellant co-accused and their relatives were insisting the guest from the side of the groom to eat more. In the said feast, the guests were not prepared to do so. He submitted that it is a common thing in Indian Society that at the time of marriage feast, the relatives of the groom, the guests coming with groom for attending marriage are often served with choicest food and it is earnestly desired that they should eat more and more. He pointed out that such custom and tradition is still continuing in Madhya Pradesh of which Dhar District is a part. He pointed out that the appellant is from Adivasi Tribe and, therefore, intention will have to be appreciated with different angle. The learned Advocate representing the State submitted that the appellant had assaulted Naharsingh with stone which resulted in an injury to his abdomen causing injury to his intestines and his death. In view of this aspect of the matter, the appellant is not entitled to get benefit of S. 6 of the Probation of Offenders Act. ( 6 ) LEARNED defence counsel argued that conviction should be only for offence under S. 323 IPC because the evidence on record shows that only one stone was pelted by the appellant which had hit the deceased on his abdominal part. He pointed out that when stone pelting was going on as a result of quarrel amongst those friendly persons at time of feast, there co