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(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded."

41. The accused persons are charged u/s 308/341/34 IPC. In order to constitute an offence u/s 308 IPC, it is to be proved that the said act was committed by the accused with the intention Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:

47. Recently, in State Vs. Kamlesh Bahadur in Criminal LP No. 515/2019 decided on 12.09.2023, The Hon'ble High Court considered the injuries in the MLC of the complainant i.e.

(i) CLW 8x2x.5 cms over central parieto occipital region.

(ii) Swelling and tenderness right forearm and wrist.

(iii) Abrasion 1x1 cm over right wrist.

The Hon'ble High Court held that the Trial court convicted the appellant u/s 308 IPC as he hit complainant with sariya and again gave a blow with a wooden leg of cot on the vital part of the body i.e. head, but there was no premeditation and incident took place on the spur of the moment and injuries were simple in nature and convicted the accused u/s 323 IPC and not u/s 308 IPC.

53. Since accused Preeti and Khushi were involved in the beating of complainant/PW1, by using iron rod and danda, which are dangerous weapons and they were charged u/s 308/341/34 IPC and since, the higher charge u/s 308/34 IPC has not been proved, they cannot be convicted in the same and as such only offence u/s 324/341/34 IPC is proved against them as they had acted in furtherance of their common intention and section 324 IPC is minor offence and considering the provision of section 222 Cr.PC, they can be convicted for the minor offence, though no formal charge was framed against them u/s 324/34 IPC.

CONCLUSION

58. In the totality of the circumstances brought on record by way of evidence, it is observed that the prosecution has failed to prove its case, beyond reasonable doubt against the accused Preeti and Khushi u/s 308/34 IPC, but proved the offence against accused Preeti @ Khushi u/s 324/341/34 IPC.

59. Consequently, the accused Preeti and Khushi are acquitted of the offence u/s 308/34 IPC, but convicted u/s 324/341/34 IPC.

60. Bail bonds cancelled. Surety stands discharged.