JUDGMENT : S. Acharya, J. - All the five Appellants stand convicted u/s 307, 34, Indian Penal Code, and each of them has been sentenced thereunder to undergo R.I. for six months. They have also been found guilty u/s 148, Indian Penal Code, but no separate sentence is awarded on this count. After the filing of this appeal Appellant Amar Baral has died. 2. The prosecution case, in short, is that on 28-7-1968 at about 10 P.M. Gobinda Chandra Misra p.w. 2, the Law Officer of the Orissa Textile Mills Ltd. (hereinafter referred to as ?O.T.M.? and p.w. 5 Rajkishore Mohapatra, the Personnel Officer of the O.T.M. were returning to their quarters from a temple known as Radhamohan Jieu Temple in Choudwar. When they came near the Co-operative Store they both halted for some time near that Store. Thereafter while both of them were proceeding, they met two persons on the way and p.w. 2 stopped for some time to talk to those two persons, while p.w. 5 proceeded ahead. After p.w. 5 went to a distance of about 25 feet from p.w. 2, p.w. 5 was suddenly attacked by the accused persons who emerged out from the northern side of the Link Road with Lathis in their hands. When p.w. 5 saw accused Sweta Kumar Ray trying to assault him by means of a Lathis on his head, he p.w. 5 raised his right hand to check the blow, as a result of which, the blow hit his right wrist joint. Thereafter all the accused persons surrounded p.w. 5 and assaulted him all over his body with (sic). In course of that assault a (sic) blow fell on the head of p.w. 5 as a result of which he sat down and became unconscious. On hearing the cry and the groaning sound of p.w. 5 p.w. 3, Suraj Ram Query, a Darwan of the O.T.M. ran to the spot and found five persons running a way from the spot. There he found p.w. 5 lying in a state of unconsciousness. The accused persons while running away saw p.w. 2 a little away from the place of occurrence, and one of the accused persons assaulted him on his thigh with a (sic). p.w. 2 could not of course identify as to who actually assaulted him at that time. There he found p.w. 5 lying in a state of unconsciousness. The accused persons while running away saw p.w. 2 a little away from the place of occurrence, and one of the accused persons assaulted him on his thigh with a (sic). p.w. 2 could not of course identify as to who actually assaulted him at that time. Within a short time some people gathered at the spot, and p.w. 5, who was lying injured at the place, was carried to the residence of p.w. 4, the doctor of the O.T.M. p.w. 4 found that the condition of p.w. 5 was serious, and on his advice p.w. 5 was removed immediately to the S.C.B. Medical College Hospital at Cuttack for better treatment. On the instruction of the General Manager of the O.T.M. p.w. 15, p.w. 1, the Security Officer of the O.T.M. lodged the F.I.R. (Ex. 1) on the same night at the Choudwar Police Station, and the Officer-in-charge, Choudwar P.S. p.w. 17 immediately took up investigation of the matter. 3. All the accused persons have completely denied their complicity or association with the occurrence in any mariner. They allege that as they belong to a particular Labour Union, which does not find favour with the authorities, they have been falsely implicated in this case. 4. p.ws. 2, 3 and 5 are the eye-witnesses to the occurrence. p.ws. 6, 7 and 8 saw the accused persons near about the place of occurrence. On the evidence of the eye-witnesses and the doctors p.ws. 4, 13 and 16 who examined and or treated p.w. 5 at different stages, there can be no doubt that p.w. 5 was assaulted by a group of persons at a bout the time of occurrence. 5. Mr. Bohidar, the learned Counsel for the Appellants, at the outset urged that as the occurrence took place at night at a lonely place and it was not possible for p.w. 2, who was near about the? place of occurrence, to identify any of the accused persons, not even the one who assaulted him, it was not possible for p.w. 5 or anyone else to identify the persons who actually assaulted p.w. 5. He contends that on their evidence on record the identification of the accused persons becomes a doubtful proposition and on that score alone they are entitled to be acquitted. 6. He contends that on their evidence on record the identification of the accused persons becomes a doubtful proposition and on that score alone they are entitled to be acquitted. 6. On a thorough perusal of the prosecution evidence to the above effect I am satisfied that the above-mentioned contention of Mr. Bohidar is not tenable. The incident took place on the Link Road passing through the main colony and the officers? colony. The prosecution evidence that there were electric street lights on that road and there was light at the place of occurrence is consistent and convincing and there is nothing doubtful about it. The defence waxed eloquent on the failure of p.w. 2 to identify any of the accused persons though he was about 25 to 30 feet from the place of occurrence where p.w. 5 was assaulted. p.w. 2 states that when the accused persons came out from the drain like ditch on the road side and started assaulting p.w. 5, he (p.w. 2) was dumbfounded on seeing the horrible sight, and he could neither move out from the place where he was standing nor could he shout out for help. He himself states that he could not identify any of the accused persons as he was completely stunned out of fear and horror. The incident of assault on p.w. 5 took place for only about 2 or 3 minutes and there after the accused persons took to their heels. While going away from that place one of them hit p.w. 2 with a (sic) on his left thigh. This witness states that the persons who assaulted p.w. 5 were five in number. He has narrated all the broad features of the occurrence, though he could not identify any of those file persons not even the person who assaulted him. The reason for, not identifying any of the accused persons stated by him is not an improbability, and there is nothing to disbelieve p.w. 2. Moreover it has not been elicited from p.w. 2 that he was well-acquainted with or even known to the accused persons from before. p.w. 2 was the Law Officer of the Mill and in that capacity it was not expected of him to know the accused persons so as to recognise them ?at night in that confusion, and that too within such a short time of their presence at that place. 7. p.w. 2 was the Law Officer of the Mill and in that capacity it was not expected of him to know the accused persons so as to recognise them ?at night in that confusion, and that too within such a short time of their presence at that place. 7. p.w. 5 himself is a highly placed responsible officer of the O.T.M. Being the Personnel Officer he had enough of opportunity to come in contact with the prominent laborers of the Mill. The accused persons themselves state that they were prominent members of a Labour Union. That being so, it is expected of p.w. 5 to know personally all the accused persons from before. A man of his status has pledged his oath to say that he was acquainted with these accused person from before and that he could identify all the accused persons at the spot in the street. I do not see any reason why a man of the status and position of p. w. 5 would pledge his oath to falsely implicate the accused persons of such an offence in preference to the actual culprits if any. 8. The evidence of identification of p.ws. 6 and 7 also lends sufficient corroboration to the evidence of p.w. 5. p.w. 6 is a brother of accused Sweta Kumar Ray. He happened to pass near about the place of occurrence at the relevant time and saw the accused persons running away towards the Labour Colony with Lathis and materials like iron pipes in hand. The Court below has threadbare discussed the different aspects of the evidence of p.w. 6 to this effect, and on a perusal of the same and the evidence of this witness I find that the Court?s conclusion that the evidence of p.w. 6 cannot be disbelieved is perfectly correct and justified. P. w. 7 was returning at about 10 P. M. on the night of occurrence from Agrahat and was going towards the Labour Colony through the road passing through the officers? colony. In between the officers colony and the Co-operative Store he at the relevant time saw five persons running away on the road towards the playground. Out of those five persons he could then identify accused Madhu. Sweta and Udhab. Different aspects of his evidence to the above effect and the comments made against his evidence have been discussed at length in the impugned judgment. Out of those five persons he could then identify accused Madhu. Sweta and Udhab. Different aspects of his evidence to the above effect and the comments made against his evidence have been discussed at length in the impugned judgment. On a perusal of his evidence I am satisfied that his evidence to the above effect is reliable. 9. The learned Assistant Sessions Judge has discussed and considered threadbare the prosecution evidence to the above effect and on a critical analysis of the same has arrived at the finding that he has no hesitation to hold that it is none but the accused persons who are responsible for the assault on p.w. 5. On a careful perusal of the prosecution evidence I am also satisfied beyond reasonable doubt that the Appellants have been rightly and correctly identified to be the culprits of the incident and the finding of the Court below to the above effect is perfectly correct. I, therefore, do not find any weight or substance in the above contention of Mr. Bohidar. 10. Mr. Bohidar, the learned Counsel for the Appellants, apart from raising the above question relating to the identification of the accused persons, did not challenge the evidence on record regarding the occurrence proper on any other account. He, however, contended that even on the finding that the accused persons assaulted p.w. 5, the offence committed by them, on the evidence on record, would not amount to on u/s 307, 34 Indian Penal Cede, of which all the accused-Appellants stand convicted in this case. He urges that one the evidence on record the prosecution has failed to establish that the intention of the Appellants in assaulting p.w. 5 in the manner as alleged was of any of the kinds referred to in Section 300, Indian Penal Code. There is sufficient force and substance in the above submission of Mr. Bohidar. His contention in this connection is directly supported by the decision of the Supreme Court in Sarju Prasad v. State of Bihar 1965 S.C.D. 281, wherein in paragraph 7 it has been held as follows: ...the burden is still upon the prosecution to establish that the intention of the Appellant in causing the particular injury to Shankar Prasad was of any of the three kinds referred to in Section 300, Indian Penal Code. For, unless the prosecution discharges the burden, the offence u/s 307, Indian Penal Code cannot possibly be brought home to the Appellant. 11. In the present case before me it is established on the evidence on record that the accused persons emerged out from a ditch on the northern side of the road with Lathis in their hands and assaulted p.w. 5 at the place of occurrence. The assault took place for only two or three minutes, as stated by p.w. 2. It is also seen from his evidence that as soon as p.w. 5 fell down on being assaulted, the accused persons took to their heels. From his evidence it is quite evident that the accused-Appellants suddenly emerged out from a place of hide-out, assaulted p.w. 5 when they found him passing alone on the road at that hour of the night, and immediately ran away from that place as soon as p.w. 5 sat down on getting a blow on his head. Even though five accused persons assaulted p.w. 5 at the place of occurrence when he was alone excepting one injury on the left side of the head he did not sustain any other injury on any other vital parts of his body. Moreover, the accused persons assaulted p.w. 5 only for a bout two or three minutes and immediately took to their heels when they found that the injured sat down on receiving the blows. If really they intended to cause the death of p.w. 5 or intended to inflict any such injury of the nature referred to in Section 300. Indian Penal Code, there was no hindrance or obstruction on their way to inflict further injuries on him on his vital parts. 12. Moreover, the prosecution has led no evidence from which it can be inferred that the Appellants had the motive to kill the victim of their attack. 13. p.w. 4 who examined the injuries sustained by p.w. 5. very soon after the occurrence at Choudwar itself found the following injuries: (1) Head injury-lacerated wound over the left side of the parietal bone ?? ? ??, ? scalp deep. (2) Bleeding per left ear. (3) Multiple abrasions-contusions left and right arm and forearm both hands. (4) Lacerated wound right and left little finger of hands. (5) Lecerated wounds on both the knees. (6) Lacerated wounds two on right foot, ankle of right leg. ? ??, ? scalp deep. (2) Bleeding per left ear. (3) Multiple abrasions-contusions left and right arm and forearm both hands. (4) Lacerated wound right and left little finger of hands. (5) Lecerated wounds on both the knees. (6) Lacerated wounds two on right foot, ankle of right leg. (7) Abrasions and contusions on back. P. w. 16. who examined the injured p.w. 5 at 1.30 A.M. in the night of occurrence at the S.C.B. Medical College Hospital. Cuttack. found the following injuries on his person: (1) Linear laceration ?? over left parietal eminence, head. (2) Contusion over right cheek, left little finger right wrist, right little finger, right knee, left knee, right calf, left calf. (3) Abrasion over left ankle, left knee, back both scapula. (4) Continuous bleeding per left ear. At that time it was not possible on his part to give any definite opinion a bout the nature of the injury No. 1 as is evident from his report Ex. 15 and his statement in cross-examination p.w. 13, the Professor of Forensic Medicine, examined the injured on 29-8-1968, i.e. about a month after the occurrence, and so his evidence is not of much significance or importance for the purpose of assessing the condition of the injured soon after the occurrence. However, when he examined p.w. 5 on 29-8-1968 he found restrictions of functional movements of the flexion of right knee to the extent of 15 degrees. Extension movement was normal. Restriction of functional movement of the flexion and extension of the left ankle to the extent of flexion 15 degrees, extension 25 degrees. Partial impairment of hearing of the left ear for soft low voice. He, after discussing the matter with the Orthopedic Surgeon, E.N.T. Surgeon and the Civil Surgeon opined as follows: Restriction of functional movement of left ankle joint may come to normal in course of time as there is no permanent damage inside the joint. The damage inside the right knee joint will lead to permanent impairment of function to certain degree, which is of grievous nature. As regards the rupture of left ear drum, Audiogram is necessary to evaluate the functional impairment. As such examination facility is not available in the S.C.B. Medical College, Cuttack Shri R.K. Mohapatra was directed to get the examination done in the E.N.T. Department of Berhampur Medical College. As regards the rupture of left ear drum, Audiogram is necessary to evaluate the functional impairment. As such examination facility is not available in the S.C.B. Medical College, Cuttack Shri R.K. Mohapatra was directed to get the examination done in the E.N.T. Department of Berhampur Medical College. All that he has stated afterwards are purely based on the medical examination reports of other doctors who have not been examined in this case. Accordingly these reports are not admissible in evidence. Chandra Majhi and Ors. v. The State 1966 (92) C.L.T. 121. Moreover, the opinion expressed by p.w. 13, that the injuries inflicted on p.w. 5 would have possibly caused his death if proper treatment would not have been given in proper time, is rather vague, indefinite and indistinct to be of any consequence or value. All the injuries on p.w. 5 were certainly not of such dangerous type as stated above, and the opinion as worded is rather vague. So much importance cannot be attached to his opinion to the above effect. 14. From the medical evidence it is seen that only one injury was inflicted on the left side of the head of p.w. 5 and the other injuries were not on any vital parts of his body and were not of the nature referred to in Section 300, Indian Penal Code. From the nature of the injuries inflicted and from the facts that the accused :persons assaulted p.w. 5 only for about two or three minutes and they took to their heels immediately after p.w. 5 set down on receiving the injuries on his head, though there was no resistance or obstruction to deal further blows on p.w. 5 and no fear of any retaliation from any quarter, it is evident that the accused persons did not have the intention to cause the death of p.w. 5 or the intention or knowledge to cause any such bodily injury as would come within the 2nd, 3rd or the 4th clause of Section 300, Indian Penal Code. That being so, as per the above quoted decision of the Supreme Court, the offence u/s 307/30, Indian Penal Code is not brought home against the Appellants, and so their conviction on that count cannot be upheld. But on the evidence on record a clear case u/s 326 read with Section 34, Indian Penal Code is made out against the Appellants. But on the evidence on record a clear case u/s 326 read with Section 34, Indian Penal Code is made out against the Appellants. Accordingly the four Appellants (Appellant Amar Baral, as stated above, is dead) are acquitted of the offence u/s 307, 34, Indian Penal Code and instead they are convicted u/s 326 34, Indian Penal Code. 15. Their conviction u/s 148, Indian Penal Code is well founded and Mr. Bohidar has not questioned in any manner their conviction on this count. 16. On account of the conviction u/s 326, 34, Indian Penal Code, the Appellants are hereby sentenced to undergo R.I. for six months. As no sentence was passed for the offence u/s 148, Indian Penal Code by the Court below, I do not impose any sentence on the Appellants on this Court. With the above modification in the order of conviction the appeal is dismissed.