KUNDAN SINGH, J. ( 1 ) THIS appeal has been preferred by appellants Bhopa and Kalloo against the ORDER and order dated 31. 1. 1979, passed by Sri. H. C. Shukla, the then Vth Additional Sessions Judge, Hamirpur, in Session Trial No. 126 of 1978, whereby he has convicted both the appellants - under section 307/34, I. P. C. and sentenced them to three years rigorous imprisonment, each. ( 2 ) THE prosecution case, in brief, is that one Hakimuddin is resident of Qasba Maudaha. There was a dispute over a Piece of land between Habibulla and Shirajuddin on one hand and Nagar Palika Maudaha ob the other. Habibulla and Shirajuddin wanted that the tap water of Hakimuddin, the injured of this case may not flow in the public drain. Owing to that issue there was a quarrel between Habibulla and Shirajuddin on one side and Hakimuddin on the other 2 or 3 days prior to the present incident in which Habibulla and Shirajuddin had threatened Hakimuddin to stop the flow of his water tap to that public drain. However, that quarrel was settled by the intervention of one Mohammad Husain. Due to that enmity on 30. 4. 1977 at about 8. 30 p. m. when Hakimuddin was returning from Khalihan to his house the saw Kalloo, Habibulla, Shirajuddin and Bhopa near the Tal of Ramjan. Habibulla and Shirajuddin told that Hakimuddin was coming. At that time Kalloo asked Hakimuddin to stop. When Hakimuddin turned back, Bhopa arid Kalloo gave him blows with Pharsa and lathi, respectively. On his hue and cry his son Naimuddin, who was present in his Khalihan, rushed to the place of incident and witnesses Chhiddoo, Baboo, Saleem and Buddhe also arrived there on hearing the noise. Naimuddin found his father Hakimuddin in an injured condition and saw Bhopa armed with a Pharsa and Kalloo with a lathi, running away from the scene of occurrence towards south while running away, Habibulla and Shirajuddin were also following them. The informant got his father admitted in Hospital and then lodged an F. I. R. of the incident at police station Mamdaha, district Hamirpur, at 9. 45 p. m. on 23. 4. 1977. The investigation of the case was entrusted to Sub Inspector Mohammad Tunus, who started the investigation on 26. 4. 1977. The informant got his father admitted in Hospital and then lodged an F. I. R. of the incident at police station Mamdaha, district Hamirpur, at 9. 45 p. m. on 23. 4. 1977. The investigation of the case was entrusted to Sub Inspector Mohammad Tunus, who started the investigation on 26. 4. 1977. He recorded statements of the witnesses, inspected the place of occurrence, prepared the site plan and interrogated the accused persons. After completing the investigation, he submitted charge sheet against the accused-appellants. ( 3 ) THE accused pleaded not guilty to the charge and claimed to be tried. ( 4 ) THE prosecution examined as many as 7 witnesses. Out of them, Hakimuddin (P. W. 1) is the injured. Naimuddin (P. W. 2) is the son of the victim, while Buddhoo (P. W. 6) is an eye witness of the incident but he did not support the prosecution version and was declared hostile by the prosecution. Shyam Lal (P. W. 3), Head Constable, was examined to prove the chik report of the F. I. R. and C. D. F. I. R. entry registering the case the police station. Mohammad Yunus (P. W. 4) is the Investigating Officer, while Dr. R. P. Pandey (P. W. 5) is the Radiologist who proved the X-ray report of the injured. Similarly, Dr. S. M. Krishna (P. W. 7) had medically examined Hakimuddin and he proved his injury report. ( 5 ) THE accused-appellants did not examine any witness in defence. Both the accused-appellants denied the prosecution version in their statements recorded under section 313 Cr. P. C. According to Bhopa appellant, Hakimuddin was Exchairman and Jamil was his Samdhi. He has been implicated in the instant case at the instance of Jamil due to party faction. According to Kalloo appellant, there was a quarrel between Jamil Chairman and his elder brother and he had been falsely implicated in the present case at the instance of Jamil. Both the accused further stated that the witness Hakimuddin was none else but own son of injured Hakimuddin and the Doctor was a friend of the injured, being his companion. ( 6 ) THE learned Additional Sessions Judge, who tried the accused, held both of them guilty of the offences charged with and accordingly he convicted and sentenced them as aforesaid. ( 6 ) THE learned Additional Sessions Judge, who tried the accused, held both of them guilty of the offences charged with and accordingly he convicted and sentenced them as aforesaid. The learned counsel for the appellants argued that there is solitary testimony of Hakimuddin, who was highly partisan and except him there is no evidence of any independent witness to support the prosecution case. It was also argued by him that there was no source of light available at the place of occurrence, facilitating the witnesses to recognise the assailants. The learned counsel also emphasised that no case under Section 507 I. P. C. was made out against the appellants. ( 7 ) I examined the evidence of the prosecution witnesses. No doubt, the Investigating Officer has not shown any electric pole in the site plan near the place of incident but Hakim uddin (p. W. 2) has come with a specific case that he had recognized the assailants in the electric light and in this connection it is worth-while to be mentioned that Maudaha is a town, which is electrified. Hakimuddin is an injured witness of the incident and he has named both Bhopa and Kalloo as his assailants. He has categorically stated that there was electric light at the place of incident and when he reached near the Tal of Ramjan he met with Habibulla, Shirajuddin and the appellants and at the exhortation of Habibulla and Shirajuddin. Bhopa gave him Pharsa blow and Kalloo beat him with a lathi. Though the witness has alleged previous enmity with Habibulla and Shirajuddin but he has not assigned any role of beating to them and the accused-appellant had not denied the existence of enmity between Hakimuddin injured and Shirajuddin and Habibulla. They have not alleged any direct enmity with Hakimuddin also. If Hakimuddin and his son had not recognised the assailants and the incident had taken place in the cover of darkness, then in all probabilities, the role of beating would have been assigned to Habibulla and Shirajuddin and not to the appellants who had no direct enmity with the injured or his son Hakimuddin. The mere fact that the Investigating Officer had not shown the electric pole in the site plan is not sufficient to belie the statement of injured witness and his testimony cannot be brushed aside so lightly. The mere fact that the Investigating Officer had not shown the electric pole in the site plan is not sufficient to belie the statement of injured witness and his testimony cannot be brushed aside so lightly. ( 8 ) NO doubt Buddhoo (P. W. 6) had turned hostile and in the court he even disowned his presence at the scene of occurrence but it appears that he was won over by the defence. Merely because this witness has not supported the prosecution case, would not serve the purpose of defence for discarding the testimony of the injured witness and his son Hakimuddin, who had fully supported the prosecution evidence and nothing could be elicited during cross-examination from them to doubt the prosecution version of the incident and it is beyond my savvy that the informant and the injured had falsely implicated the innocent persons and permitted the real culprits to go scot free. Moreover, the applicants were known to the injured from before. If for the sake of arguments it is assumed that there was no sufficient source of light on the spot, still the injured could recognise the appellants as they were already known to him. On the person of injured there are injuries both of Pharsa and lathi. If the weapons could be recognized, the assailants also could be recognized if it is assumed that there was scanty light on the spot. The medical evidence fully supports the testimony of injured and his son Hakimuddin. ( 9 ) LASTLY, learned counsel for the appellants argued that no case under section 307/34 I. P. C. is made against the appellant and submitted that Dr. S. M. Krishna (P. W. 7) stated that injury No. 4 of Hakimuddin was simple and without X-ray report no definite opinion could be given as to whether other injuries were dangerous to life and, there fore, he advised X-ray. The X-ray report has been proved by Dr. R. P. Pandey (p. W. 5), who found 9th and 10th ribs fractured as per X-ray report. The learned counsel for the appellants argued that identity of the injured has not been fixed by the prosecution in this case in relation to the X-ray plates and the X-ray report. Sri Pandey (P. W. 5) admitted that he cannot say as to who had identified the injured brought for X-ray. The learned counsel for the appellants argued that identity of the injured has not been fixed by the prosecution in this case in relation to the X-ray plates and the X-ray report. Sri Pandey (P. W. 5) admitted that he cannot say as to who had identified the injured brought for X-ray. He also admitted that X-ray plate did not contain signature or thumb impression of the person, who was subjected to X-ray but again said that the X-ray plate did contain thumb impression and he cannot say as to who had thumb marked that X-ray plates because the name of person who put the thumb mark is not written against the thumb impression. The witness also admitted that in his report it is not mentioned as to who had referred the injured for X-ray. This argument of the learned counsel that the X-ray report does not fix identity of the injured Hakimuddin has some force. At the time the statement of Dr. R. P. Pandey was recorded in court, the injured was not present before him in the court room. The Doctor could connect that report with the injured by tallying the marks of identification on his report with the person of the injured Hakimuddin had he been present in the court at the time of his evidence but that opportunity too was not available to Dr. R. P. Pandey and against the thumb mark no name of the person is mentioned who had put that thumb mark. The evidence of Dr. R. P. Pandey is of no avail to the prosecution and loses its efficacious for want of fixation of identity. However, if we exclude the evidence of Dr. R. P. Pandey, still there is sufficient evidence to established that Bhopa appellant had caused Pharsa injury and Kalloo had inflicted lathi injuries to Hakimuddin injured and their guilt for the offences punishable under sections 324 and 323, I. P. C respectively, is proved beyond any shadow of doubt, hence their conviction, from section 307/34 I. P. C. has to be converted into one under sections 324 and 323 I. P. C. respectively. ( 10 ) ON the question of quantum of sentence the learned counsel for the appellants argued that the appellants were poor servants of Habibulla and it appears that they inflicted injuries to Hakimulla at the behest and exhortation of their Master Habibulla and further both were young lads of 22 and 20 years of age at the time of incident and their past antecedents are not bad and consequently they may be awarded the benefit of First Offenders Probation Act. Certainly, this argument of the learned counsel has its own place but the appellants have assaulted an innocent and respectable persons with Pharsa and lathi on mere exhortation of their Master Habibulla for no rhyme or reason. Assault as their deliberate Act and it was not a case of sudden provocation. Purposely they had come over there near the Tal of Ramjan to commit the offence of assault and I think if a fine of Rs. 500/ - is imposed on each of them would itself be on leniency side and hence they are not entitled to the benefit of First Offenders Probation Act. ( 11 ) ACCORDINGLY, the appeal succeeds in part. The conviction and sentences of both the appellants under sections 307/34 I. P. C. are set aside. Bhopa appellant is held guilty under section 324 I. P. C. while appellant Kalloo is found guilty under section 323 I. P. C. They are convicted and sentenced to pay Rs. 500/- as fine on those counts, respectively. The amount of fine so imposed shall be deposited by them within three months, failing which each of them would undergo six months rigorous imprisonment. appeal allowed partly. .