JUDGMENT S.Z. Hasan, J. - This is an appeal against the judgment of Sri A.B. Hajela, IV Addl. Sessions Judge, Sitapur convicting and sentencing Nazir Husain appellant to five years R.I. under Section 307, I.P.C. and to three months R.I. under Section 323 read with Section 34, I.P.C. Jabir Husain appellant to one month R.I. under Section 323 I.P.C. and to four years R.I. under Section 307 read with Section 34 I.P.C. and Ismail and Shahabuddin appellants to three years R.I. under Section 307 and to three months R.I. under Section 323 each read with Section 34, I.P.C. The sentences were ordered to run concurrently. 2. The prosecution case is that Jalaluddin complainant (P.W.1) kidnapped Naseeman, the wife of Nazir Husain accused about a year before the occurrence. About 4-5 days before the occurrence she had returned to the village and was living with Jalaluddin (P.W.1) on September 7, 1977 at about 7 a.m. Nazir Husain armed with a banka and his brother Jabir Hussain armed with a lathi came there and assaulted Jalaluddin and Nasseman. Jamil and Shahabuddin accused had no weapon and they were simply instigating. Jalaluddin received one incised wound muscle deep on the head and one incised wound on the thumb. He had also one lacerated wound on the face Naseeman received seven injuries which were simple in nature and could be caused by blunt weapon. P.W.2 Suleman and P.W.3 Yunus did not support the prosecution case and they were declared hostile. Jalaluddin (P.W.1) and Mahboob (P.W.4) are witnesses of fact. The accused persons denied the charge. The learned Sessions Judge sentenced the appellants as aforesaid. Hence this appeal. 3. Suleman (P.W.2) and Yunus (P.W.3) have stated that at about 7 a.m. they heard alarm and when they came to the complainant's place, the accused persons were not there. So there is no doubt that the occurrence took place at 7 a.m. Jalaluddin(P.W.1) received three injuries and Naseeman received seven injuries. There was no sense in leaving the real culprits and in substituting a different set of accused persons. The wife of Nazir Husain was kidnapped by Jalaluddin complainant. So he could have a motive to commit this crime. Jabir Husain is his brother and he also could lose temper on this scare and I join hands with his brother Nazir Husain. The wife of Nazir Husain was kidnapped by Jalaluddin complainant. So he could have a motive to commit this crime. Jabir Husain is his brother and he also could lose temper on this scare and I join hands with his brother Nazir Husain. There is consistent evidence to show that Nazir Husain armed with a bank a caused injuries to the complainant and Jabir Husain assaulted them with Lathi. Naseeman received simple injuries. Same is the case with the injuries received by Jalaluddin. In view of the number and nature of the injuries and the attending circumstances cannot be said that the intention of Nazir Husain was to kill Jalaluddin. So to my mind, no case under Section 307, I.P.C. has been made out. A case under Section 324, I.P.C. and under Section 323/34, I.P.C. has been made out against Nazir Hussain and a case under Section 324/34, I.P.C. and under Section 323/34 has been made out against Jabir Husain.The wife of Nazir Husain was being kept by Jalaluddin. Nazir Husain and Jabir Husain both are real brothers. They have been in Jail for about three months. This matter is hanging on their head since 1977 and all this must have disturbed their daily routine. So no useful purpose would be served in sending them back to jail and in permitting them to sit with hardened criminals. Under the circumstances of the case, it would meet the ends of justice if their sentence under both counts is reduced to the period of imprisonment already undergone. 4. As regards Ismail and Shahabuddin accused, they were not armed. It is simply said that they were instigating. So it appears that these allegations about instigation were made just to drag in these two accused persons also. To my mind, no case has been made out against Ismail and Shahabuddin accused. 5. The appeal, in so far as it relates to Ismail and Shahabuddin accused, is allowed, their convictions and sentences are set aside and they are acquitted of the charges referred to above. They are on bail. Their bail bonds are discharged. 6. To my mind, no case has been made out against Ismail and Shahabuddin accused. 5. The appeal, in so far as it relates to Ismail and Shahabuddin accused, is allowed, their convictions and sentences are set aside and they are acquitted of the charges referred to above. They are on bail. Their bail bonds are discharged. 6. The appeal, in so far as it relates to Nazir Husain and Jabir Husain accused, is dismissed with the modification that the conviction of Nazir Husain under Section 307, I.P.C. is altered to that tinder Section 324, I.P.C. and he is further convicted under Section 323/34, I.P.C. and similarly the conviction of Jabir Husain under Sections 307/34, I.P.C. is altered to that under Sections 324/34, I.P.C. and he is further convicted under Sections 323/34, I.P.C. However, for the reasons given in the body of the judgment, their sentence of imprisonment under both the counts is reduced to the period of imprisonment already undergone. They are on bail. Their bonds are discharged.