JUDGMENT Chandra Prakash, J. - This is an appeal against the order dated 31st January, 1973 of Sri B. K. Sharma, Sessions Judge, Banda convicting Appellants Lakhan Singh, Jai Karan Singh, Natthu, Rati Bhan and Vijai Karan Singh u/s 307 read with Section 149 Indian Penal Code and sentencing each of them to three years' R.' I. Appellants Natthu and Rati Bhan were further convicted u/s 147 Indian Penal Code and sentenced to one year's R. I. while Jai Karan, Vijai Karan and Lakhan Singh Appellants were convicted u/s 148 IPC and sentenced to two years' R. I. All the sentences were directed to run concurrently. 2. Appellants Lakhan Singh, Jai Karan Singh, Rati Bhan and Vijai Karan Singh along with the complainant Lakshmi Prasad (PW 1) are residents of village Jauhari, Police Station Kotwali in the city of Banda. Natthu, Appellant is the resident of Banda itself. All the Appellants are Thakurs by caste. Vijai Karan Singh, Jai Karan Singh and Rati Bhan, Appellants are the uncles of Lakhan Singh, Appellant and all these four persons live jointly in one and the same house. Appellant Natthu is said to be a friend of Lakhan Singh, Appellant. At the time of the incident Lakhan Singh was a student of Glass X in Bajrang Vidyalaya, Banda while Natthu was a student of Glass XI in the same school. Lakshmi Prasad (PW 1), complainant was also a student of the same school at Banda. 3. The motive of the crime was that four months prior to the occurrence, Lakhan Singh, Appellant had stolen a cycle from his school. Lakshmi Prasad complainant acted as an informer to the police and got the said cycle recovered from the possession of Lakhan Singh. It was also alleged that a month prior to the incident Lakhan Singh, Appellant lodged a report with the police against Lakshmi Prasad, complainant u/s 394, Indian Penal Code. The police investigated that case and submitted no charge-sheet as it found no case against the complainant Lakshmi Prasad (PW 1). 4. The prosecution story in brief was as follows : On 22-11-1971 Lakshmi Prasad (PW 1), complainant was going on an Ekka of Brijlal from his village to attend his school at Banda. Barati Lai (PW 2) and one Ram Autar were also seated on that Ekka. At about 10.30 A.M. the Ekka reached at the canal Pulia near village Palhari. The prosecution story in brief was as follows : On 22-11-1971 Lakshmi Prasad (PW 1), complainant was going on an Ekka of Brijlal from his village to attend his school at Banda. Barati Lai (PW 2) and one Ram Autar were also seated on that Ekka. At about 10.30 A.M. the Ekka reached at the canal Pulia near village Palhari. At that time all the five Appellants along with two or three unknown persons were sitting on the Pulia. Jai Karan Singh and Vijai Karan Singh Appellants were armed with Pharsas while Lakhan Singh Appellant was armed with a Kulhari. The other two Appellants and the unknown persons were armed with lathis. All the Appellants together with their two or three unknown companions stopped the Ekka, dragged the complainant Lakshmi Prasad (PW 1), and began to assault him with their respective weapons. Thereafter the Appellants and their companions threw the complainant into a pit adjoining the canal and ran away. Brijlal (Ekka Driver), Barati Lal (PW 2) and Ram Autar then took out the complainant from the pit, brought him on the Ekka and brought him to Banda Kotwali. There the complainant Lakshmi Prasad (PW 1) lodged the First Information Report, Ex. Ka-1 at 12.05 p.m. All the Appellants were named in the First Information Report. A case was registered against the Appellants u/s 307 Indian Penal Code. The police sent the complainant Lakshmi Prasad (PW 1) to the hospital for medical examination. There Dr. G. K. Misra (PW 4) examined the injuries on the very day of the incident at 1.15 p.m. and found the following injuries: - * * * * * 5. Injuries nos. 1, 2, 8, 9, 10, 12 had been caused by some blunt weapon while injuries nos. 3, 4, 5 and 14 had been caused by a sharp edged weapon like Pharsa, and injuries nos. 3, 4, 5 and 14, in the opinion of the doctor, could also be caused by an axe if the blow is not dealt with great force. According to the doctor injury no. 7 has been caused by some pointed weapon, but in cross-examination Dr. Misra stated that it could have been caused by the corner of the Pharsa or Kulhari. By subsequent X ray, injury no. 10 was discovered to be grievous being fracture of the left ulna bone. According to the doctor injury no. 7 has been caused by some pointed weapon, but in cross-examination Dr. Misra stated that it could have been caused by the corner of the Pharsa or Kulhari. By subsequent X ray, injury no. 10 was discovered to be grievous being fracture of the left ulna bone. After completion of the investigation all the Appellants were challaned. 6. All the Appellants pleaded not guilty. It was admitted that all the Appellants with the exception of Natthu Appellant belonged to the same family. It was also admitted that Lakhan Singh Appellant lodged a report against complainant Lakshmi Prasad (PW 1) u/s 394 Indian Penal Code a few days before the occurrence, but the police did not challan the complainant. Lakhan Singh Appellant denied that he had stolen any cycle and the complainant acted as an informer. All the Appellants denied to have assaulted the complainant altogether. 7. The prosecution examined five witnesses in support of its story including two eye-witnesses. The Appellants produced no defence. After considering the entire evidence on record the Court below found all the Appellants guilty u/s 307 Indian Penal Code and sentenced them as already noted above. 8. Feeling aggrieved, the Appellants have now come up in appeal before me. Vijai Karan Singh Appellant is since dead and his appeal has abated. It was contended on behalf of the four Appellants that their conviction u/s 307/149 Indian Penal Code is not warranted by the testimony on record. After hearing the learned Counsel for the Appellants as also the learned Counsel appearing on behalf of the State and after going through the record I have come to the conclusion that the conviction of the Appellants u/s 307/149 Indian Penal Code cannot be allowed to stand, but they must be convicted u/s 325/149 Indian Penal Code. I have also come to the conclusion that the conviction of the Appellants for rioting cannot be disturbed. 9. The prosecution story was narrated by complainant Lakshmi Prasad (PW 1) from the beginning to the end, who also proved the First Information Report Ex. Ka-1. The testimony given by this witness was corroborated by Barati Lal (PW 2). 10. Paper Ex. 9. The prosecution story was narrated by complainant Lakshmi Prasad (PW 1) from the beginning to the end, who also proved the First Information Report Ex. Ka-1. The testimony given by this witness was corroborated by Barati Lal (PW 2). 10. Paper Ex. Ka-1 is the First Information Report lodged by complainant Lakshmi Prasad (PW 1) at the police station Kotwali, Banda on the very day of the occurrence at 12.05 p.m. The incident took place at abaut 10.30 a.m. The police station was at a distance of two miles from the scene of the incident. The complainant Lakshmi Prasad (PW 1) received no less than 14 injuries and this shows that he was beaten for a considerable time. The complainant was then taken to the police station Kotwali in an Ekka. The First Information Report Ex. Ka-1 was lodged within 11/2 hours of the occurrence i. e. without any loss of time and it is, therefore, a strong piece of corroborative evidence in the case. 11. The place and time of the incident are not disputed. Blood was recovered from the scene of the incident. There is no suggestion that the incident took place elsewhere or at any other time. 12. Lakshmi Prasad (PW 1) complainant narrated the entire prosecution story from the beginning to the end. His presence at the time of the incident, is therefore unquestionable. His testimony is supported by the First Information Report Ex. Ka-1 made without any delay and the medical evidence on record. It was contended that in the First Information Report complainant Lakshmi Prasad (PW 1) alleged that he was thrown into the canal while according to the evidence given in the Court below he was thrown into a pit by the side of the canal and that pit contained water. According to the site-plan prepared by the Investigating Officer, as also according to the testimony of the eye-witnesses produced the canal and the pit are contiguous. The pit was, therefore, a part and parcel of the canal. There was, therefore, hardly any discrepancy if the witnesses interchanged canal and the pit. My attention was also drawn to a number of discrepancies in the statement either given before the Court below by complainant Lakshmi Prasad (PW 1) or his statement given before the Committing Magistrate, but they were of a trivial character and on matters ancillary to the prosecution. My attention was also drawn to a number of discrepancies in the statement either given before the Court below by complainant Lakshmi Prasad (PW 1) or his statement given before the Committing Magistrate, but they were of a trivial character and on matters ancillary to the prosecution. Lakshmi Prasad (PW 1), in my opinion, is therefore, a reliable eye-witness. 13. Barati Lal (PW 2) was with the complainant on the Ekka. His presence at the time of the incident was, therefore, quite natural. It was argued that there is no allegation in the First Information Report Ex. Ka-1 that Barati Lal and Ram Autar were also on the Ekka. But at the same time it is not disputed that Barati Lal and Ram Autar accompanied the complainant on the Ekka to the police station from the scene of the incident. Normally, Ekka plying from village to cities do not carry single passenger. On the other hand, they usually go with the full load of the Ekka. In any view of the matter, presence of Barati Lal at the time of the incident cannot be doubted. He no doubt, admits that Vijai Karan Singh, Appellant gave evidence against him in a murder case. He had, therefore, enmity with the Appellants, but this will only require that his statement should be closely scrutinised before being accepted. I have gone through his testimony very closely and hardly find anything substantial to reject it. Before the Committing Magistrate he denied that Vijai Karan Singh Appellant gave evidence against him in the above said case, but he admitted the truth in the Court below and his testimony cannot be thrown out simply because he had denied this enmity before the Committing Magistrate. Barati Lal (PW 2) is, also, therefore, a credible eye-witness. 14. It was argued on behalf of the State that the incident took place at about 10.30 a, m. and the school commenced at Banda at about 10 A.M. It may be so, but it was stated by complainant Lakshmi Prasad (PW 1) that sometimes he used to go to school late. 15. It was next argued on behalf of the Appellants that injury no. 7 was a punctured wound, which could be caused by a spear only. Dr. 15. It was next argued on behalf of the Appellants that injury no. 7 was a punctured wound, which could be caused by a spear only. Dr. G. K. Misra (PW 4) stated that it could have been caused by a corner of the Pharsa or Kulhari and it was elicited in the cross-examination of complainant Lakshmi Prasad (PW 1) that the Kulhari of Appellant Lakhan Singh contained a pointed corner. 16. In the last, it was argued that Ram Autar and Brijlal were not produced in the case. Complainant Lakshmi Prasad (PW 1) stated that both Ram Autar and Brijlal had been won over by the Appellants and his statement is supported by the fact that Brijlal appeared as a prosecution witness before the Committing Magistrate and there he was declared hostile. It cannot be said that the prosecution gave up any eye-witness with an oblique motive. I have to decide the case on the basis of the testimony of the witnesses produced and not on the basis that some of the eye-witnesses had not been produced. The evidence in a criminal case had to be weighed and not countered. 17. From the testimony of the two eye-witnesies produced supported by the First Information Report Ex. Ka-1 made without any delay and the medical evidence on record, I am convinced that all the Appellants assaulted Lakshmi Prasad (PW 1), complainant in the manner set up by the prosecution, but the medical evidence on record does not disclose that the Appellants had any intention to kill. The injuries received by the complainant were not dangerous to his life. There is nothing in the First Information Report Ex Ka-1 to show that the Appellants intended to take the life of the complainant. The Appellants in the circumstances, were wrongly convicted u/s 307/149, Indian Penal Code. Since the complainant Lakshmi Prasad (PW 1) received grievous injuries also all the Appellants are guilty u/s 325/149, Indian Penal Code. 18. Coming to the case of Lakhan Singh and Natthu, Appellants, I find that Lakhan Singh was less than 18 years of age, while Natthu was less than 16 years of age at the time of the incident. In my opinion, both of them are entitled to the benefit of the provisions of the U.P. First Offenders' Probation Act. 19 In the result, the appeal is partly allowed. In my opinion, both of them are entitled to the benefit of the provisions of the U.P. First Offenders' Probation Act. 19 In the result, the appeal is partly allowed. The conviction and sentences of the Appellants u/s 307/149, Indian Penal Code are set aside. Instead they are convicted u/s 325/149, Indian Penal Code and sentenced to two years' R. I. each. The conviction and sentences of the Appellants under Sections 147 and 148, Indian Penal Code are also confirmed. However, Lakhan Singh and Natthu, Appellants instead of going to jail are given the benefit of Section 4 of the U.P. First Offenders' Probation Act and they will remain on probation on their executing personal bonds of Rs. 500/- each with two sureties each in the like amount before the Probation Officer for a period of two years. 20. Jai Karan Singh and Rati Bhan Singh Appellants are on bail. They will surrender to their bail bonds in order to'serve out their sentences. The sentences shall run concurrently.