Judgment Narinder Singh Rao, J. 1. Mala Yadav, Somara Yadav, Inderdeo Yadav and Rajiram Yadav, the appellants, stand convicted under Sec. 307 read with Sec. 34 of the Indian Penal Code (hereinafter referred to as the Code) and sentenced to undergo rigorous imprisonment for five years each, Feeling arrived, they have preferred this appeal. 2. Mala Yadav and Somara Yadav appellants are brothers inter se. Inderdeo Yadav appellant is the son of Mala Yadav appellant, and Rajiram Yadav appellant that of Somara Yadav appellant. They are residents of Reria, district Rohtas, to which village informant Sakhi Yadav (PW 5) as also Ram Briksha Yadav (PW 1), Ramesh Sing (PW 2), Jhari Yadav. (PW 3) and Mukhdeo Yadav (PW 4) also belong, PW 1 is the son of the informant. The parties are having their adjoining fields at some distance from the abadi of the village. Near those fields is situate that plot, over which a dispute was pending between the parties in August, 1985, and even prior thereto. 3. The prosecution version, in brief is that on 10-8-1985 at about 2 p.m., when PW 5, while working in his field happened to pass by the side of the tubewell of the appellants, they had waylaid him, They had caused injuries to PW 5 with their lathis. The occurrence was witnessed by by PWs 1 to 4. After committing the crime, the appellants had disappeared with their weapons. Subsequently PW 5 was removed to State Dispensary, Tilautha, where he was admitted as an indoor patient. The police had arrived in that Dispensary the same day at 5 p.m., and recorded fardbeyan of PW 5. On its basis, the case was registered. After completion of the investigation, the appellants were charge-sheeted. 4. All together five witnesses were examined by the prosecution, and they all one alleged eye-witnesses of the occurrence. The appellants, in their examinations, had denied the prosecution allegations, and stated that they were innocent. They had maintained their false implications due to previous enmity. They had not examined any witness in their defence. 5. Learned Counsel for the parties have been heard, and records carefully gone through. 6. It has remained undisputed that PW 5 had voluntarily caused some blunt weapon injuries in the afternoon of 10-8-1985 near his fields. Now according to prosecution, the appellants, in furtherance of their common intention, had opened a murderous assault on him. 5. Learned Counsel for the parties have been heard, and records carefully gone through. 6. It has remained undisputed that PW 5 had voluntarily caused some blunt weapon injuries in the afternoon of 10-8-1985 near his fields. Now according to prosecution, the appellants, in furtherance of their common intention, had opened a murderous assault on him. From their side, a case of denial simpliciter was put forward. The material question for determination is to see as to if satisfactory evidence is available on record for connecting the appellants with the offence charged. 7. True that PWs 2 and 4 had not supported the prosecution case, and name of PW1 as an eye-witness, was not mentioned in the F. I. R. still the prosecution case stands fully established on the basis of reliable evidence rendered by PWs 3 and 5. Out of them, PW 5 is a stamped witness-he having received the injuries. PWs 3 is an independent witness. He was duly named in the F. I. R. as an eye-witness. Therefore, from reliable testimony of PWs 3 and 5, it stands fully established that the latter was voluntarily caused lathi blows. 8. The main point for determination is to see as to who were the assailants of PW 5, and what offence they had committed. On these points, PW 3 had corroborated PW 5 only with respect to committing the crime by Mala Yadav and Inderdeo Yadav appellants. PW 3 had not said a word about the presence of Somara Yadav and Rajiram Yadav appellants near PW 5 at the time of the occurrence. The given circumstances of the case, especially inimical relations of the parties, to require the scrutiny of the material brought with all possible care and caution. Viewed the case in that backdrop, benefit of doubt is required to be given to Somara Yadav and Rajiram Yadav appellants as their participation in the occurrence had not been owned by the only independent witness (PW 3). However from his evidence and that of PW 5, it is satisfactorily proved that Mala Yadav and Inderdeo Yadav appellants had, in fact, caused lathi injuries to PW 5 at the relevant time. 9. However from his evidence and that of PW 5, it is satisfactorily proved that Mala Yadav and Inderdeo Yadav appellants had, in fact, caused lathi injuries to PW 5 at the relevant time. 9. Then, as regard the offence, Learned Counsel for the appellants is right in submitting that because of non-examination of the doctor who had medically examined PW 5, nothing can be said about the number and nature of his injuries. Even Medico-Legal Certificate of PW 5 was not exhibited at trial by the prosecution. Thus, even seats of injuries cannot be ascertained. The conviction of the appellants under Sec. 307 read with Sec. 34 of the Code, in the given situation, is uncalled for and same deserves to be set aside. Mala Yadav and Inderdeo Yadav appellants, who only have been proved to be the assailants of PW 5 require to be convicted under Sec. 323 of the Code simpliciter. 10. For reasons stated above, this appeal partly allowed. The conviction and sentences of the appellants under Sec. 307 read with Sec. 34 of the Code are set aside. Somara Yadav and Rajiram Yadav appellants are acquitted of all charges. However, Mala Yadav and Inderdeo Yadav appellants are held guilty, and accordingly, convicted only under Sec. 323 of the Code. 11. On point of sentence, it is to be seen that Mala Yadav and Inderdeo Yadav appellants have already undergone the ordeal of a protracted trial, and then of this appeal They have remained behind the bars for some time, and are still in custody. Having regard to all facts and circumstances of the case, the sentence of these appellants (Mala Yadav and Inderdeo Yadav) under Sec. 323 is reduced to the period already undergone by them, but they are also fined Rs. 500 (Rupee five hundred) each. In default of payment of fine, they shall undergo further rigorous imprisonment for three months each. Whole of the fine if realised from these appellants, is ordered to be paid to Sakhi Yadav PW 5. The trial Court will send due information in that behalf to him. 12. Somara Yadav and Rajiram Yadav appellants, who are in custody are ordered to be set at liberty forthwith, if not required to be detained in connection with any other case. The trial Court will send due information in that behalf to him. 12. Somara Yadav and Rajiram Yadav appellants, who are in custody are ordered to be set at liberty forthwith, if not required to be detained in connection with any other case. Regarding Mala Yadav and Inderdeo Yadav appellants, as they have to arranage money for being deposited as fine they are also directed to be released immediately, if not required to be detained in connection with any other case. However, these appellants Mala Yadav and Inderdeo Yadav through their Learned Counsel are directed to deposit their fine in the trial Court by 6th of July, 1993 failing which they shall surrender on the following day (7th July, 1993). If these appellants do not deposit their fine, or surrender in the manner stated, the trial Court, will take immediate steps in getting them arrested for being sent to jail for sentence in lieu of the fine.