R. A. MISRA, J. ( 1 ) RAM Chandra Singh (P. W. 3) is a resident of village Kusha, police station Chakia, district Varanasi. He restrained Ram Bilash Tewari the accused-respondent on or about 9th October, 1972, who happened to be the Beldar of the Canal Department, from unlawful carrying canal water which caused annoyance to the accused Ram Bilash. The remaining four accused belong to his family. Ram Chandra Singh was going to attend to the call of nature on the morning of 11th regarding the role of Han Shanker in the October, the call of nature on the morning of 11th October, 1972 and when he reached towards the cast of the village abadi, at about 7 A. M. near the plot of Shitla Prasad, all the accused reached there. Accused Ram Naresh Tewari exhorted the remaining accused to beat him whereupon the accused Param Hans Tewari, Ramji Tewari, Ram Bilash Tewari, and Ram Naresh Tewari beat him with lathis causing by injuries on his person. He lodged the first information report at the police station Chakia on the same day at 1. 55 P. M. against the four accused named above and one Han Shanker Tewari. The crime was registered under sections 147, 323 and 504 Indian Penal Code. Dr. W. C. Srivastava (P. W. 4) Medical Officer co Incharge Primary Health Centre Chakia, Varanasi examined Ram Chandra Singh on the same day at about 2. 30 P. M. and found as many as 19 injuries on his person. In the fir opinion of the medical expert all the injuries be were simple in nature, fresh in duration and were caused be some hard and blunt object. Dr. Tandon, Medical Officer, S. S. P. G. Hospital Varanasi found fracture of right Tibula on the basis of X-ray on 10-10-1972. Ram Chandra Singh, thereafter moved an application on all 13-11-1972 to the Senior Superintendent of Police Varanasi for directions to investigate the case as the injuries caused were grievous in nature. It so appears that necessary direction for investigation was issued and the case was investigated and the charge sheet was submitted against five accused named in the first information report. The accused pleading not guilty and contended to have been falsely roped in the case due to enmity. It so appears that necessary direction for investigation was issued and the case was investigated and the charge sheet was submitted against five accused named in the first information report. The accused pleading not guilty and contended to have been falsely roped in the case due to enmity. ( 2 ) THE prosecution examined Shiv Shanker Lal (P. W. 2) Ram Chandra Singh (P. W. 3) as witnesses of fact. Dr. K. G. Tandon (P. W. 2) and W. C. Srivastava (P. W. 4), the two Medical Officers and Raghu Nath Prasad (P. W. 5), the bead constable clerk of police station Chakia, Varanasi. The accused examined three witnesses Sudama alias Badri (P. W. 1), Paras Nath Mishra (D. W. 1) and Hawaldar Singh (D. W. 3) in defence. The learned Magistrate acquitted the accused mainly on two grounds; firstly because there was material contradiction in the deposition of D. W. 2 Shiv Shanker Lal and the first information report (Exh. Ka-2) lodged by Ram Chandra Singh and secondly because there was material contradiction in the statement of Ramchandra Singh (P. W. 3) and Shive Shanker Lal (P. W. 2) regarding the role of Han Shanker in the crime. The State has felt aggrieved and preferred this appeal. ( 3 ) I have heard the learned counsel for both the parties and have gone through the record. ( 4 ) SHIV Shanker Lal (P. W. 2) as observed by the court below has deposed that when he reached the scene of occurrence on hearing the cry he found all the five accused assaulting Ram Chandra Singh with lath is. In his cross examination he has further deposed that when he reached near Ram Chandra Singh, be found him sitting and at that stage also the accused continued to beat him. Ram Chandra Singh did not fell. The first information report (Exh. Ka-2) has been lodged by Ram Chandra (P. W. 3) and not by Shiv Shanker Lal. In the first information report it is mentioned that he fell down on receiving injuries. It is not the previous statement of Shiv Shanker Lal (P. W. 2) and also it cannot be used for contradicting him. The view taken-by the court below that the first information report contradicts Shiv Shanker Lal (P. W. 2) is thus illegal and could not be reasonably taken by a judicial tribunal. It is not the previous statement of Shiv Shanker Lal (P. W. 2) and also it cannot be used for contradicting him. The view taken-by the court below that the first information report contradicts Shiv Shanker Lal (P. W. 2) is thus illegal and could not be reasonably taken by a judicial tribunal. Secondly both the prosecution witnesses have not been given any opportunity to explain the aforesaid contradiction. I find much force in the contention raised by the learned counsel for the State that had Ram Chandra Singh been given an opportunity to explain the aforesaid contradiction, he could explain it by saying that sitting down on receiving injuries, in his opinion, amounted to have fallen down so he mentioned in the first information report to have fallen. According to the prosecution he was going to attend the call of nature he was suddenly attacked by the accused. He was standing when the assault commenced. The witness Shiv Shanker who reached there on hearing the cries found the victim sitting and not actually laying down on the grounds. So the contradiction even if taken into consideration is not at all material enough so as to brush aside the entire prosecution story and discard the sworn testimony of the prosecution witnesses on that ground alone. The view taken by the learned Magistrate could not be reasonably taken. ( 5 ) RAM Chandra Singh (P. W. 3) the victim has not named the accused Han Shanker in his deposition as one of the assailant though he has named him in the first information report. Shiv Shanker Lal (P. W. 2) has named Han Shanker also as one of the assailant. This contradiction undoubtedly gives benefit of doubt to Han Shanker and on that ground Han Shanker has been rightly acquitted but this contradiction alone, regarding the participation of Han Shanker in the crime is not sufficient to doubt the participation of other accused in the crime and the testimony of present witnesses cannot be said to be unworthy of belief against the remaining accused. The view taken by the learned Magistrate that this contradiction makes the testimony of the prosecution witnesses unreliable against on the accused, is perverse and cannot be reasonably taken by a judicial tribunal. The view taken by the learned Magistrate that this contradiction makes the testimony of the prosecution witnesses unreliable against on the accused, is perverse and cannot be reasonably taken by a judicial tribunal. In the result, both the grounds which have been taken by the court below for acquitting the accused (except Han Shanker) as discussed above could not have reasonably taken by a judicial tribunal. Attempt should have been made to separate chaff from the grain. ( 6 ) RAM Chandra Singh (P. W. 3) is the victim. He has narrated the entire prosecution story and has named all the four accused (excluding Han Shanker ). The first information report which has been promptly lodged fully corroborates him. He has been examined by Dr. Srivastava on the same day at 2. 30 P. M, and the medical expert has found as many as 19 injuries on his person, The injuries were fresh and as deposed by the medical officer could have been caused at about 7 A. M. on the same day, The medical expert has further opined that these injuries could have been caused by blunt objection just like lathi. The medical evidence thus fully corroborated the date and time of the occurrence as well as the weapon used. Shiv Shanker (P. W. 2) is a resident of the same village. He was also going out to attend the call of nature when he heard the cries and witnessed the occurrence. He has given convincing reason for his presence on the scene of occurrence at that hour of the day. He has been thoroughly cross examined. He is named in the first information report as one of the witness. He has fully supported the version given by the victim Ram Chandra Singh. ( 7 ) THE learned Magistrate has rightly discarded the offence version that some marpit took place between one Tulsi and Ram Chandra Singh and that Ram Chandra Singh has received injuries in that marpit. Tulsi has not been produced by the defence. On the other hand, the accused have produced Sudama (D. W. 1) who says that five or ten Harijans have assaulted Ram Chandra Singh. He has admitted to have been prosecuted for committing the number of one Kedar Tewari. He has expressed his ignorance about the fact that he was accused of committing the murder. On a report lodged by Shanker Thakur. He has admitted to have been prosecuted for committing the number of one Kedar Tewari. He has expressed his ignorance about the fact that he was accused of committing the murder. On a report lodged by Shanker Thakur. Paras Nath (D. W. 2) and Hawaldar (D. W. 3) are witnesses of formal nature. ( 8 ) THE only possible conclusion which can be drawn from the evidence on record is that the accused Ram Naresh Tewari, Ram Bilash Tewari and Param Hansh Tewari have caused the injuries on the person of Ram Chandra Singh at about 7 A. M. on 11. 10. 1972 in furtherance of their common intention. Dr. Srivastava has pointed that all the injuries were simple in nature. He did not keep any injury under observation and did not refer the case to the radiologist for further probe. No reliance therefore, can be placed on the evidence of Dr. Tandon, the radiologist. It is, therefore, not proved beyond doubt that any injury caused by accused was grievous in nature. ( 9 ) IN the result, the charge under section 323/34 Indian Penal Code is proved beyond doubt against the four accused but is not proved beyond doubt against accused Han Shanker. The learned Magistrate has wrongly acquitted all the accused. The appeal shall therefore, be allowed in part as discussed above. ( 10 ) THE occurrence has taken place nearly 11 years ago. No previous conviction is proved against the accused. No useful purpose is likely to be served by keeping them in jail for short period. On the other hand their association in jail with hardened criminal is likely to have adverse effect on their life in future. I, therefore, find it expedient in the interest of justice to release them on probation of good conduct for a period of one year instead of sentencing them at once. ( 11 ) THE appeal is allowed in part. The order of acquittal passed against Han Shanker is confirmed but the order of acquittal passed against the remaining four accused is set aside. ( 11 ) THE appeal is allowed in part. The order of acquittal passed against Han Shanker is confirmed but the order of acquittal passed against the remaining four accused is set aside. Accused Ram Naresh Tewari, Ram Bilash Tewari, Ramji Tewari and Paramhans Tewari are convicted under section 323/34 Indian Penal Code but instead of sentencing them at once, I direct them to be released on probation of good conduct for a period of one year subject to each one of them executing a personal bond with I two sureties of the like amount to the satisfaction of the Chief Judicial Magistrate Varanasi to appear and receive the sentence when called upon during the aforesaid period and in the mean time to keep the peace and of good behaviour. In default, they shall be taken into custody and produced before the Chief Judicial Magistrate, Varanasi to be sentenced. They are also allowed to remain on the same bail for a further period of one month to enable them to execute the bonds and furnish sureties. Let a copy of this judgment be sent to the Chief Judicial Magistrate, Varanasi for compliance. Appeal allowed in part. .