1. This appeal has been filed under section 374 of the CrPC against the judgment dated 31.8.2009 passed by 21st Additional Sessions Judge, Indore in S.T. No.287/2007 whereby convicted the appellant-Vishal for the offence under sections 307 and 323 of IPC and sentenced to undergo 5 years' RI and with fine of Rs.3,000/- with default clause and 3 months RI; and convicted the appellant-Rahul for the offence under section 307/34 and under section 323 of IPC and sentenced to undergo 5 years RI and fine of Rs.3,000/- with default clause and 3 months RI.

2. Brief facts of this case are that on 20.7.2007 at about 9 p.m. there was a marriage procession of Pawan Sen. In that procession, Hitendra Sen, Dharmendra Sen, Bharat Maheshwari and appellant-Rahul @ Kalu and his brother Vishal were participating. When the Procession reached at Marimata Chouraha, appellants Rahul and Vishal were dancing. At that time, there was some altercation between the complainant Hitendra Sen and his friends. Thereupon, appellant Vishal has cuased injury to Bharat Maheshwari with knife on his right thigh and caused injury to Dharmendra Sen on the back side of skull, whereas appellant Rahul caused the injury with his belt. Hitendra Sen lodged the report. Bharat Maheshwari was taken to Noble Hospital and injured Dharmendra and Hitendra were also taken to the hospital. Final report was filed by the Police Station Sadar Bazar, Indore against the appellants.

3. On that basis, appellant-Vishal was charged for the offence under sections 294, 307 and 506B of the IPC, whereas appellant-Rahul was charged for the offence under sections 294, 307/34, 506B of the IPC. Appellants abjured their guilt.

4. Prosecution examined 16 witnesses, whereas in defence, appellants examined two witnesses. After hearing the parties, learned ASJ by the impugned judgment convicted the appellant-Vishal for the offence under sections 307, 323 of IPC, whereas convicted the appellant-Rahul for the offence under sections 307/34 and 323 of the IPC and awarded sentence, as aforesaid. Being aggrieved, appellants have filed this appeal.

5. Learned counsel for the appellants submits that the appellant No.2-Vishal has been convicted for the offence under sections 307 and 323 of IPC and he has already suffered the entire jail sentence, therefore, he does not wish to press this appeal. So far as appellant-Rahul is concerned, it is submitted that there is no reliable evidence on record to infer that in furtherance of common intention of Rahul and Vishal, Vishal has caused the injury with knife to Bharat Maheshwari. The incident took place on spur of moment and on a trivial isue. There was no pre-meditation of mind. Appellant Rahul was not armed with any weapon. Thus, the act of appellant-Rahul comes within the purview of section 323 of the IPC. Appellant-Rahul has already suffered the actual jail sentence of one year, 8 months and 27 days. Hence, the appeal be allowed and the appellant-Rahul be released.

6. On the other hand, learned Panel Lawyer supports the conviction and sentence.

7. I have carefully examined the evidence of injured Bharat Maheshwari. He deposed that there was some altercation when the marriage procession was going on and during that incident, the appellant-Rahul has instigated the appellant Vishal, hence Vishal has caused injury with knife to him (Bharat Maheshwari), but there is nothing on record to presume that the appellant Rahul has instigated the coappellant Vishal to cause injury which is dangerous to life. However, it is proved that on instigation Vishal has caused the injury with knife. Therefore, the appellant-Rahul is guilty for the offence under section 324/34 of the IPC, whereas the learned ASJ has erroneously convicted him for the offence under section 307/34 of the IPC. Hence, the conviction of appellant-Rahul under section

307/34 of IPC is set aside and he is convicted for the offence under section 324/34 of IPC.

8. Thus, the appellant-Rahul is convicted for the o