The presence and common intention among co-accused must be substantiated beyond reasonable doubt to uphold convictions under IPC.

1. This criminal appeal is preferred by the appellants being aggrieved by the judgment dated
29/7/2009 passed by the Additional Sessions Judge, Piparia District Hoshangabad in ST No. 165/2008, whereby the appellants were convicted for commission of offence punishable under S.325/34 of IPC and each of them was sentenced for two years' RI with fine of Rs.1000/- with additional three months' RI in default of payment of fine.

2. The prosecution's case, in short, is that on 26/01/2008 at about 10:00 PM in the night the victim Farukh Sheikh (PW 3) was passing through Gandhiganj, Pachmadi by his vehicle. On the road some persons including the appellant Papa @ Laxmi Kant were dancing on the road, and therefore a dash took place to the appellant Papa @ Laxmi Kant. The appellant Papa @ Laxmi Kant started abusing the complainant Farukh Sheikh. The complainant went back to his home after that incident. On 27/01/2008 at about 10:00 AM he went to the shop of Gupta Panwala to talk with a refrigerator mechanic. He took a seat in the tea shop of Tiwari and he was talking alongwith that mechanic. The appellants came to the spot having baseball stick, hockey stick, stick and iron belt. They surrounded the victim / complainant and assaulted him. The victim Farukh Sheikh tried to save his life and he went inside the shop of grocery of Manish Sahu, but the appellants assaulted him. The complainant went to the police station Pachmadi and lodged an FIR Ext. P10. He was sent for his medico legal examination. Dr. Anil Alok Agrawal (PW 5) examined him at Civil Hospital, Pachmadi and found a lacerated wound on his head and one scratch on his left forearm. There was a swelling of 2 x 2 inch on the left forearm of the complainant. The complainant was referred for the X - ray examination and thereafter he was referred to the Hamidiya Hospital, Bhopal. Dr. Sunita Yadav (PW 8) examined the complainant and found that there was a subdural hematoma in the skull and there was fracture in left ulna of the complainant. After due investigation, a charge sheet was filed before the JMFC Piparia, who committed the case to the Sessions Court, Hoshangabad and ultimately it was transferred to the Additional Sessions Judge, Piparia District Hoshangabad.

3. The appellants - accused abjured their guilt. They did not take any specific plea in the matter, but they have stated that they were innocent and they were falsely implicated in the matter. The appellant Satish pleaded a plea of alibi, and therefore Sunil (DW 1) was examined.

4. The learned Additional Sessions Judge, Piparia after considering the evidence adduced by the parties acquitted the appellants from the charges of offence punishable under S.294, S.341, S.506 - B and 307 of IPC, but convicted them for the offence under S.325/34 of IPC and sentenced as mentioned above.

5. I have heard the learned counsel for the parties.

6. The learned counsel for the appellants have submitted that some of the witnesses have turned hostile. Manish Sahu (PW 4) turned hostile in his cross examination. The testimony of the complainant Farukh Sheikh could not be believed without any corroboration. There was a lot of contradiction between the statement of the complainant and the version given in the FIR and his previous statement. It was not proved beyond doubt that each of the appellants assaulted the victim, and therefore the common intention could not be presumed. No report was lodged by the complainant on 26/01/2008. In the FSL report, no blood stain was found on the weapons seized from the appellants. The weapons were not sent to the doctor for perusal that such inj