Judgment O.P. Pradhan, J. 1. Respondents Kishori Lal and Ram Swaroop were tried in connection with charges under Sections 308 and 325, both read with Section 34, I.P.C., by Smt. Mohini Rajani, the then Assistant Sessions Judge, Jhansi in Sessions Trial No. A-80 of 1976 for an incident which occurred at about 10 a.m. on 14-10-1975 in village Luhari within the circle of police station, Samthar, district Jhansi and were acquitted of both these charges by the judgment and order dated 9-4-1980. The State has preferred this appeal against the said judgment and order of acquittal. 2. The relevant facts leading to the prosecution of respondents may be briefly stated. Peer Khan (PW 1) who is the complainant of the case, lives in village Luhari within the circle of police station Samthar of district Jhansi. Both the respondents are also residents of the same village. On 14-10-1975 at about 10 a. m., Peer Khan was sitting at the Chabutara of his house and was conversing with Vishwannath Singh and Parmai Kori. Respondent Kishori Lal came to Peer Khan and took him away to him own house saying that he had to discuss certain matter. At the Chabutara of his house, respondent Kishori Lal questioned Peer Khan about engaging his servant, Ram Prasad Chamar. Peer Khan replied that he had engaged him because Ram Prasad had asked him and it was no wrong to respondent Kishori Lal. In the meantime respondent Ram Swaroop also came there with a Lathi and respondent Kishori Lal asked him to be at Peer Khan whereupon respondent Ram Swaroop dealt a Lathi blow on the head of Peer Khan and respondent Kishori Lal himself struck Lathi blows on the right hand of Peer Khan. On the alarm raised by Peer Khan, Kallu, Rafiq and Ram Kishan reached the place of incident and rescued Peer Khan, who sustained fracture in his right hand. Peer Khan got a report of the incident scribed by his son and lodged the same at police station Samthar on the same day at 12.30 p.m. In this report, he nominated both the respondents are his assailants. A case was registered at the police station on the basis of this written report under Sections 325 and 323, I.P.C., and investigation followed : Injured Peer Khan was examined at 1 p.m. on the same day at the Hospital Samthar by Dr. A case was registered at the police station on the basis of this written report under Sections 325 and 323, I.P.C., and investigation followed : Injured Peer Khan was examined at 1 p.m. on the same day at the Hospital Samthar by Dr. A.H. Khan (PW 6) who noticed following injuries on his person: (1) Lacerated wound 3" X 1" margins apart in middle x whole scalp deep, on right side of forehead, extending from re-middle right side transversely, 1 x ½" above the right eye-brow. Blood was oozing continuously from the wound. (2) Lacerated wound 3/4" X margins close together X 1/10" deep on right side of head 3½" above the right ear, 1'/2" behind injured No. 1. (3) Abrasion ½" x ½' on the right mastoid bone with indulging diffuse swelling 2" X 2". (4) Abrasion ½'' X ¼" on dorsum of nose which was swollen, ½" below root of nose. The right eye swollen and the patient could not open his right eye. (5) Abrasion on lateral aspect of right upper arm 2" X 1", 4" below the tip of shoulder. The underlying hummers bone was fractured. (6) Abrasion ½" x ½" on dorsum of right forearm 2" above the wrist. The underlying bone was fractured and the whole of the right forearm and hand was swollen. (7) Ecchmosis 3" X ½" along the medical border of left forearm with 3 small abrasion over it. (8) Ecchymosis 3" X 1" on the right scapula region. (9) Ecchymosis 2½" x 1½", 2" below the inferior spine of left scapula, X-ray, of injuries Nos. 4, 5 and 6 was advised. On such X-ray, fracture of fronto-parietal region and fracture of shaft humerus-middle and radius ulna at its lower 1/3rd was detected. S.I. Bhagat Singh (PW 7) carried out the investigation of the case and converted the case under Section 308, I.P.C., on getting the X-ray report. He submitted the charge-sheet in Court for the prosecution of both the respondents. 3. The case was committed to Court of Session on 29-3-1976 by the Chief Judicial Magistrate, Jhansi. Both the respondents were charged under Sections 308 and 325 read with Section 34, I.P.C. by the Assistant Sessions Judge, Jhansi. Both the respondents pleaded not guilty to the charges and claimed trial. 4. 3. The case was committed to Court of Session on 29-3-1976 by the Chief Judicial Magistrate, Jhansi. Both the respondents were charged under Sections 308 and 325 read with Section 34, I.P.C. by the Assistant Sessions Judge, Jhansi. Both the respondents pleaded not guilty to the charges and claimed trial. 4. According to respondents, Peer Khan was assaulted by some miscreants in the dark hours and they were falsely involved in this case because they were acquitted earlier in a case under Sections 147 and 323, I.P.C., instituted by Peer Khan. In support of its case, the prosecution examined injured Peer Khan (PW 1), Kallu (PW 2), Vishvvanath Singh (PW 3) and Rafiq (PW 5) as witnesses of fact, while Dr. R.C. Gupta (PW 4) and Dr. A.H. Khan (PW 6) were examined to prove the X-ray report (Ex. Ka-2) and medical examination report (Ex. Ka-3) respectively. S.I. Bhagat Singh (PW 7) was also examined by the prosecution to prove the steps taken by him during the course of investigation, particularly, chik-report (Ex. Ka-4) and G.D. Entry as per copy (Ex. Ka-5) as also charge-sheet (Ex. Ka-7). 5. The respondents who were accused in the said Sessions Trial examined in their defence Bhawar Singh (DW 1), Dhan Singh (DW 2) and Lakshmi Narain Kaushal (PW 3) and also filed certified copy of the judgment dated 5-8-1970 delivered by Judicial Magistrate, Jhansi in Criminal case No. 516 of 1969, State v. Raghunath and others. 6. On an analysis of the oral and documentary evidence produced in the case, the learned Assistant Sessions Judge came to find that the prosecution had failed to establish that the respondents had caused the aforesaid injuries to Peer Khan at the time and place alleged by the prosecution and accordingly acquitted both the respondents of the charged levelled against them. Feeling aggrieved by the judgment and order of the learned Assistant Sessions Judge, the State of U.P., has preferred this appeal. We have heard the learned Counsel for the State as also the respondents and perused the evidence on record. 7. Feeling aggrieved by the judgment and order of the learned Assistant Sessions Judge, the State of U.P., has preferred this appeal. We have heard the learned Counsel for the State as also the respondents and perused the evidence on record. 7. It has been urged on behalf of the State that the learned Assistant Sessions Judge has grossly erred in disbelieving Peer Khan (PW 1) who had sustained injuries at the hands of the respondents in broad day-light and that the learned Assistant Sessions Judge further erred in discrediting the testimony of eye-witnesses Kallu (PW 2) and Rafiq (PW 5) on trivial and insignificant grounds. The learned State Counsel vehemently urged that in any view of the matter, the evidence adduced on record was adequate to make out the charge under Section 325 read with Section 34, I.P.C., against both respondents. The learned Counsel for the respondents attempted to justify the findings recorded by the learned Assistant Sessions Judge. 8. We now proceed to analyse the evidence adduced in the case with a view to as certain if the prosecution case against the respondents is established beyond the pale of reasonable doubt. Peer Khan (PW 1) who was the victim of the assault during the occurrence, stated that he was sitting at the Chabutara of his house at about 10 a.m. on the day of occurrence and was conversing with Vishwanath Singh Thakur and Parmai Kori when accused Kishori of his village came to him and asked him to accompany him since he had some work. Accordingly, he accompanied him to his house and it was at the Chabutara of the house of Kishori that he was questioned by Kishori as to why he had engaged his servant Ram Prasad, whereupon he replied if it had caused any loss to him. This witness further deposed that accused Ram Swaroop also reached there with a Lathi and accused Kishori asked accused Ram Swaroop to assault him. It was then that Ram Swaroop struck a Lathi blow on his head and accused Kishori dealt with Lathi blows one after the other on his right hand whereby his bone of the right hand was broken at two places. This incident, according to Peer Khan (PW 1) was witnessed by Kallu, Rafiq and Ram Kishan on whose arrival both the aforesaid accused persons escaped with their Lathies. This incident, according to Peer Khan (PW 1) was witnessed by Kallu, Rafiq and Ram Kishan on whose arrival both the aforesaid accused persons escaped with their Lathies. A report of this incident was dictated by Peer Khan (PW 1) to his son Kallu and the written-report was read over to him and thereafter thumb-marked by him. This written report was lodged at the police station Samthar and it was at Samthar Hospital that he was examined and thereafter sent to Jhansi Hospital where he was X-rayed and re-mined admitted for about a month. According to this witness, he could not do any work for about a month during which he remained admitted in the hospital, since he was under plaster. Kallu (PW 2) and Rafiq (PW 5) stated during their evidence that they also saw both the accused persons, namely, Kishori and Ram Swaroop assaulting Peer Khan with Lathes and that Peer Khan sustained injuries on his head and hand. Vishwanath Singh (PW 3) stated that he was sitting along with Parmai Kori and Peer Khan at the Chabutara of Peer Khan and was conversing with them about agricultural operations when accused Kishori came to Peer Khan at about 10 a.m. on the day of occurrence and asked him to accompany him to his house since he had some work and accordingly Peer Khan want together with accused Kishori to the letter's house. 9. The learned Assistant Sessions Judge has discredited the testimoney of Peer Khan (P.W. 1) mainly on the following grounds: (i) While the first information report Peer Khan mentioned that both the accused had Lathies with them at the time of incident but during his evidence, he stated that lathies were brought from inside the house of accused Kishori. (ii) There is discrepancy in the oral evidence of Peer Khan regarding the manner of assault and the places where the lathies struck on the person of Peer Khan. (iii) Peer Khan (PW 1) expressed ignorance about the case instituted by him against accused Ram Swaroop and others in 1969 even though Ram Kishan had appeared for Peer Khan in the said case and Dr. A.H. Khan who examined Peer Khan in the present case had also examined him earlier in connection with the said case of 1969. 10. (iii) Peer Khan (PW 1) expressed ignorance about the case instituted by him against accused Ram Swaroop and others in 1969 even though Ram Kishan had appeared for Peer Khan in the said case and Dr. A.H. Khan who examined Peer Khan in the present case had also examined him earlier in connection with the said case of 1969. 10. So far as the present ground of attack against the testimoney of Peer Khan (PW 1) is concerned, the same does not carry any substance inasmuch as in the first information report it was clearly stated by Peer Khan that each of the two accused had lathies with him. It was during evidence that he clarified that the lathies were procured by these two accused from inside the house of accused Kishori. Moreover, in the first information report it was not expected of Peer Khan to have mentioned that the lathies were procured from inside the house of accused Kishori. As to the second ground of attack, it has to be kept in mind that Peer Khan (PW 1) come to be assaulted all of a sudden at chabutara of accused Kishori and he suffered as many as nine injuries on his person as already detailed above. It was naturally not expected of Peer Khan (PW 1) to have noticed precisely the manner of assault and the particular places where the lathi blow struck him. However, he has clearly deposed that the lathi blow given by accused Ram Swaroop landed on his head while the two lathi blows given by accused Kishori struck him on his right hand breaking its bone at two places. Therefore, nothing turns upon this part of the criticism levelled against the testimony of injured Peer Khan (PW 1). 11. So far as the third point of criticism is concerned, it may be pointed out that the case instituted by the police on the report of Peer Khan in 1969 against Raghunath and others for offences under Sections 147, 323/149, I.P.C., was decided by the Judicial Magistrate, Jhansi on 5-8-1970 as per Ex, Kha-2 which is a certified copy of its judgment. It also appears from the said judgment that Ram Kishun was examined as a prosecution witness besides Peer Khan who had been manhandled by the accused of that case. Likewise, it further appears from the said judgment that Dr. It also appears from the said judgment that Ram Kishun was examined as a prosecution witness besides Peer Khan who had been manhandled by the accused of that case. Likewise, it further appears from the said judgment that Dr. A.H. Khan was also examined as prosecution witness in that case, but it has not been put to Dr. A.H. Khan (PW 6) of the present case if he had examined Peer Khan in the said case and had also figured as a prosecution witness in the aforesaid case. Be that as it may, nothing of particular significance turns upon the ignorance feigned by Peer Khan (P.W. 1) regarding the said case which was disposed of about nine years before Peer Khan (PW 1) gave his evidence in the present case. 12. The learned Assistant Sessions Judge has further pointed out that no person of the neighbourhood of the place of occurrence was examined but the persons living at far off places came to be examined by the prosecution and, therefore, the incident appeared doubtful. So far as this point goes, it is worthy of notice that the learned Assistant Sessions Judge has herself remarked that none of the persons of the neighbourhood was said to be present by the prosecution witnesses. It was, therefore, nothing strange if the persons of, immediate neighbourhood did not witness the occurrence and were, there fore, not examined by the prosecution. Kally (PW 2) and Rafiq (PW 5) were examined by the prosecution in support of the case of assault at the hands of these two accused persons. It is further borne out from the prosecution evidence that the incident occurred on Dassehra day and, therefore, too, the immediate neighbours of accused Kishori who were mostly Hindus were not normally expected to be the present around the place of occurrence at the material time. Therefore, the occurrence could not be doubted merely on the ground that the persons of the immediate neighbourhood were not present at the time occurrence and were not examined by the prosecution. The learned Assistant Sessions Judge also made a capital of the non-recovery of the blood from the place of occurrence by the Investigating Officer. Therefore, the occurrence could not be doubted merely on the ground that the persons of the immediate neighbourhood were not present at the time occurrence and were not examined by the prosecution. The learned Assistant Sessions Judge also made a capital of the non-recovery of the blood from the place of occurrence by the Investigating Officer. It has been clearly demonstrated by the prosecution evidence that Peer Khan (PW 1) has assaulted at the chabutara of accused Kishori on the day of occurrence which took place on 14-10-1975 at about 10 a.m. S.I. Bhagat Singh (PW 7) who investigated this case, clearly stated that he could not make local inspection of the place of occurrence on the day of incident on account of his duties in connection with Dassehra and that he could visit the place of occurrence and make the local inspection on 20-12-1975. In the circumstances, the non-recovery of blood at the place of occurrence by the Investigating Officer stands properly explained since the blood which fell on the chabutara where Peer Khan was assaulted could not be reasonably expect ed to be recovered by the Investigating Officer two months after the occurrence. It is also borne out from the evidence of the Investigating Officer that the chabutara was found washed with mud-plaster at the time of local inspection. Learned Assistant Sessions Judge has also pointed out that chabutara of Peer Khan (PW 1) was not expected to be washed with mud-plaster on the day of Dassehra. It may be pointed out that the assault took place at the chabutrara of accused Kishori and not at the chabutara of Peer Khan (PW 1). 13. The learned Assistant Sessions Judge further made a capital of the circumstance that fractured bone of injured Peer Khan was not attended to either at his house or anywhere else till he reached the hospital. So far as this criticism goes, it may be pointed out that it has not been elicited from any prosecution witnesses if the fracture suffered by injured Peer Khan could be attended to in his own village or at any place other than the hospital where he was ultimately attended to and put under plaster. Therefore, nothing of significance turns upon this criticism levelled by the learned Assistant Sessions Judge. 14. Therefore, nothing of significance turns upon this criticism levelled by the learned Assistant Sessions Judge. 14. It has further been pointed out by the learned Assistant Sessions Judge that Ram Prasad who is said to have been engaged by Peer Khan (PW 1) and on whose account Peer Khan came to be assaulted at the hands of the accused has not been examined by the prosecution. It is nobody's case that this Ram Prasad had seen any part of the occurrence culminating in the assault of the injured Peer Khan at the hands of the accused-respondents. Therefore, the prosecution was under no obligation to examine Ram Prasad. Strangely enough, the learned Assistant Sessions Judge has further commented upon the non-examination to Tongawala by the prosecution. It is in the evidence of Peer Khan (P.W. 1) that he went to police-station Samthar on a Tonga in order to lodge the report. This Tonga is said to have been engaged for the purpose after the incident. By no stretch of imagination, this Tongawala, if examined, would have carried the prosecution case any further. 15. Learned Assistant Sessions Judge has also pointed out that Peer Khan's son, Kallu did not go to the police-station in company with his father. So far as this criticism goes, it may be pointed out that Kallu (PW 2) and Rafiq (PW 5) who are said to have witnessed the assault of Peer Khan at the hands of the accused, did accompany Peer Khan to the police-station and, therefore, it is nothing strange if Peer Khan's son, Kallu who had scribed the written report (Ex. Ka-1) soon after the incident did not accompany Peer Khan to the police-station. 16. With regard to the testimony of Vishwanath Singh (PW 3), it has been pointed out by the learned Assistant Sessions Judge that he did not rush to the scene of occurrence even though he had heard the alarm at his house. So far as this criticism goes, this witness was not confronted with this conduct on his part. Therefore, it would not be fair to condemn this witness without having given a reasonable opportunity to explain his conduct on this score. In any case, nothing of particular importance turns upon this conduct of Vishwanath Singh (PW 3). So far as this criticism goes, this witness was not confronted with this conduct on his part. Therefore, it would not be fair to condemn this witness without having given a reasonable opportunity to explain his conduct on this score. In any case, nothing of particular importance turns upon this conduct of Vishwanath Singh (PW 3). His testimony is firm and consistent on the point that he was sitting at the chabutara of Peer Khan (PW 1) when accused Kishori came to Peer Khan and asked him to accompany him to his house since he had some work, and thereupon Peer Khan left with accused Kishori. No dent could be caused to the evidence of Vishwanath Singh (PW 3) on this score. Likewise, no particular enmity has been suggested to this witness for giving evidence against the accused persons. It was simply suggested to him that his Theka work of fisheries is done by Peer Khan but this suggestion has been refuted by Vishwanath Singh (PW 3). The evidence of Kallu (PW 2) has been discredited on the ground that he was a chance witness. According to his evidence, he is a peon in Tahsil Moth in district Jhansi. He is assigned duty with the Collection Amin. He further stated that on the day of occurrence he was on rest at his village Euhari and was awaiting the Amin who actually turned up the next day. He further deposed that he was going to collect stitched cloth from the Tailor when he heard the alarm and rushed to the house of accused Kishori where he saw the assault on Peer Khan at the hands of both there accused persons, namely, Kishori and Ram Swaroop. He was confronted with his statement under Section 161, Cr. P.C., where he stated "MAIN AAJ APNE GHAR PAR THA. MAINE PEER KHAN KE CHILLANE KI AWAZ SUNI." The fact remains that he was attracted to the scene of occurrence by the alarm and reached the place of incident to see the later part of the occurrence. He has also stated that both the accused persons ran away with their lathies, no sonner he and other witnesses, namely, Rafiq and Ram Kishun reached the scence of occurrence. He has also stated that both the accused persons ran away with their lathies, no sonner he and other witnesses, namely, Rafiq and Ram Kishun reached the scence of occurrence. He has also clearly stated that on the next day, the Amin collected dues from Latif Khan, Sewa Das, Harnam Singh, Arjun Singh, Narain Singh, Natthu Khan, Budhu Khan, Ramzan Khan and the brother of Chandrabhan and that these collections amounted to Rs. 2,000. it has not been suggested to him during cross-examine that he is not a resident of village Luhari or that he is not a peon at Tahsil Moth attached with the Amin. On the other hand, the respondents examined in their defence Dhan Singh (DW 2) who stated that he was a Collection Amin in October, 1975 but he did not make any collection in village Lohagarh in the month of October, 1975 and further that the name of the peon attached to him was Khargu and not Kallu. From his cross-examination, it is clear that he had no record with from which he could say with certainty that no collections were made in October, 1975 in village Lohagarh. Likewise, he could not deny if Kallu (PW 2) was attached to some other Amin in the year 1975 for collection work in village Lohagarh. Therefore, the testimony of this defence witness does not demolish the positive evidence of Kallu (PW 2) and is of no particular help to the accused-respondent. From a careful consideration of the evidence of Kallu (PW 2) and Dhan Singh (DW 2), it cannot be reasonably concluded that Kallu (PW 2) is not a reliable witness or that he was a mere chance witness. 17. Now remains the testimoney of Rafiq (PW 5) who has been dubbed as a chance witness by the learned Assistant Sessions Judge. It is no doubt true that he is a resident of Nai Basti, Jhansi and is a hawker. However, in his testimoney he stated that during the period the incident occurred he lived at Luhari. He further stated during his evidence that the incident occurred on the day of Dassehra. It does appear that he had to visit several villages in connection with his avocation of hawker. He denied the suggestion that he was related to Peer Khan and stated that he had intervened in the marpit of Peer Khan done by the accused-respondent. He further stated during his evidence that the incident occurred on the day of Dassehra. It does appear that he had to visit several villages in connection with his avocation of hawker. He denied the suggestion that he was related to Peer Khan and stated that he had intervened in the marpit of Peer Khan done by the accused-respondent. In the first place, no particular damage could be caused to the evidence of this witness during his cross-examination but even assuming that he happened to be present in village Luhari by chance at the time of occurrence, his testimoney may not be discredited merely on this score. He was interrogated by the Investigating Officer on the day of occurrence itself since he had also accompanied injured Peer Khan to the police station. Therefore, it cannot be said that he was not present in village Luhari on the day of occurrence around the time and place of the occurrence. 18. On behalf of the accused/respondent, Bhanwar Singh (DW 1) and Lakshmi Narain Kaushal (DW 3) have also been examined in defence. So far as the testimony of Bhanwar Singh (DW 1) goes, it is to the effect that Peer Khan was possibly injured in the early hours by some miscreants who had attempted to take away the articles kept in the 'jhal' which was guarded by Peer Khan. However, he admitted during cross-examination that he did not speak about such an incident to anybody in the village, muchless intimate the Superintendent of Police or the court that Kishori had been falsely implicated. He further conceded during cross-examination that he came for evidence in the Court on the asking of accused Kishori who had defrayed his expenses. It follows that the evidence of this witness does not inspire confidence and in any case, does not probablise the defence version that Peer Khan was injured in the early hours of the day by some miscreants. So far as the evidence of Lakshmi Narain Kaushal (DW 3) is concerned it goes to show that he was employed in Jhansi Division in October, 1975 and that a work- order was given to Munna son of Peer Khan on 21-4-1976. He had to concede during cross-examination that no theka was given to Peer Khan of village Luhari by his Department. He had to concede during cross-examination that no theka was given to Peer Khan of village Luhari by his Department. The occurrence took place on 14-10-1975 and the work-order is said to have been given to Munna son of Peer Khan on 21-4-1975. Therefore, it cannot be said that Peer Khan could be connected on 14-10-1975. With the said work assigned to his son Munna. Accordingly the evidence of this defence witness does not also help the accused-respondents' case in any manner. It was faintly argued before us by the learned Counsel for the respondents that there was no motive for the respondents to assault Peer Khan and therefore, the prosecution case is not liable to be accepted on its face value. So far as this contention goes, it may be observed that motive always locks up in the mind of the accused and sometimes it is difficult to unlock the same. Proof of motive is never indispensable for confiscation when facts are clear. Moreover, motive assumes less or little importance, once there is direct evidence. In the premises, this contention of the learned Counsel for the respondents bears no further scrutiny. 19. On a careful scrutiny and analysis of the oral and documentary evidence adduced in the case, we are of the considered view that the prosecution case of physical assault on Peer Khan (PW 1) at the hands of respondents Kishori and Ram Swaroop by means of lathies on 14-10-1975 at about 10 a.m., at the chabutara of respondent Kishori in village Luhari within the circle of police-station Samthar district Jhansi resulting in fracture on the fronto-perietal region and shaft hummers-middle and radius ulna at its lower 1/3rd on the right hand of injured Peer Khan stands established beyond pale of reasonable doubt. In this behalf it has to be kept in mind that injured Peer Khan (PW 1) is a stamped witness and his testimony is amply corroborated in material particulars by the written-report lodged by him within two hours and a half a police-station Samthar which is at a distance of seven miles from the place of occurrence. In this report, he has nominated both the respondents as his assailants, having struck him with their lathies resulting infracutre of his bones. Besides this, the medical evidence comprising of the statement of Dr. A.H. Khan (PW 6) read with his medical-examination report (Ex. In this report, he has nominated both the respondents as his assailants, having struck him with their lathies resulting infracutre of his bones. Besides this, the medical evidence comprising of the statement of Dr. A.H. Khan (PW 6) read with his medical-examination report (Ex. Ka-3) and the statement of Dr. R.C. Gupta (PW 4) read with X'ray report (Ex. Ka-2) also lends assurance to the testimoney of Peer Khan (PW 1) with regard to the injuries suffered by him. Dr. A.H. Khan (PW 6) has clearly stated that the injuries suffered by Peer Khan could be caused at about 10 a.m. on 14-10-1975. Not only this, the testimony of Kallu (PW 2) and Rafiq (PW 5) also lends further support to the prosecution version that Peer Khan suffered injuries on his person at the hands of both the respondents who struck him with' their lathies resulting in fracture of his bones. It is clear from the evidence of Dr. R.C. Gupta (PW 4) read with X'ray report (Ex. Ka-2) that Peer Khan suffered fracture on the fronto-perietal region of the skull and also of shaft hummers on the right upper arm and forearm middle and radius ulna at its lower 1/3rd. The respondents have not been able to probablise their defence version that Peer Khan was possibly injured in the early hours of the day by some miscreants. It was a broad day-light occurrence and both the respondents are residents of the same village where the occurrence took place and, therefore, known from before to Peer Khan (PW 1), Kallu (PW 2), Vishwanath Singh (PW 3) and Rafiq (PW 5). Hence, it could not be a case if mistaken identity. 20. Accordingly we hold that the charge under Section 325 read with Section 34, I.P.C., stands fully established against both the respondents. However, the charge under Section 308 read with Section 34, I.P.C., levelled against the respondents is not made out since Dr. A.H. Khan (PW 6) simply stated that if the injured did not receive medical and in time he could have died. He did not pronounce definite opinion on this aspect of the case even during his examination-in-chief. However, the charge under Section 308 read with Section 34, I.P.C., levelled against the respondents is not made out since Dr. A.H. Khan (PW 6) simply stated that if the injured did not receive medical and in time he could have died. He did not pronounce definite opinion on this aspect of the case even during his examination-in-chief. The prosecution has not succeeded in establishing the requisite intention or knowledge contemplated under Section 308, I.P.C., and therefore, the conclusion of the learned Assistant Sessions Judge that no as under Section 308 read with Section 34, I.P.C., was made out against any of the two accused-persons, does not need any interference in this appeal. We, therefore, uphold the acquittal of the respondents in connection with the charge under Section 308 read with Section 34, I.P.C., but set aside their acquittal in relation to the charge under Section 325 read with Section 34, I.P.C., and convict such of them in relation to the said charge under Section 325 read with Section 34, I.P.C. As to the sentence, we are inclined to take a lenient view. It was represented to us by the learned Counsel for both the accused' respondents that the respondents are peacefully living and looking after their family members and it will cause them as well as their family members great hardship if they are to be sent to prison at this late stage. Looking to the fact that the incident occurred on 14-10-1975, more than 18 years back, we do not think it desirable to send the respondents to jail. We accordingly sentence each of the respondents Kishori Lal and Ram Swaroop to the period of imprisonment already undergone by them and to pay fine of Rs. 500 (Rupees five hundred only) each and in default of payment of fine to undergo rigorous imprisonment for three months. The amount of fine shall be deposited in the Court to the Chief Judicial Magistrate, Jhansi within a period of one month from today. The amount of fine, if realised, shall be paid to the complainant/injured Peer Khan by way of compensation. This Government Appeal is accordingly partly allowed subject to the alteration in conviction and sentence indicated above. Appeal partly allowed.