JUDGMENT K. Narayan 1. Chhedua and seven others convicted by the IInd Additional Sessions Judge, Fatehpur, by his judgment and order dated 22.5.1979 on charges under Sections 147, 323/149, I.P.C. Accused Chhotey Lal and Bhagwan Deen were sentenced to pay a fine of Rs. 150 under Section 147, I.P.C. and others Rs. 100 under Section 323, I.P.C. and in default of payment of fine they were sentenced to rigorous imprisonment for nine months, the remaining accused were sentenced to rigorous imprisonment for one year and six months under Section 147, I.P.C. and one year's rigorous imprisonment under Section 323, I.P.C. 2. I have heard learned counsel for the appellants and the learned A.G.A. Before proceeding further it may be mentioned that the sentence of imprisonment in default of payment of fine, has been awarded by the learned Sessions Judge without looking to the relevant provisions in that behalf. Section 65, I.P.C. which limits the sentence in default of payment of fine. The sentence is provided as under: 'The term for which the court directs the offender to be imprisoned in default payment of a fine shall not exceed one fourth of the term of imprisonment which is the maximum fixed for the offence if the offence be punishable with imprisonment as well as fine." 3. The maximum sentence provided for the offence under Section 147, I.P.C. is two years and under Section 323, I.P.C. is one year. The order of the learned Sessions Judge directing the imprisonment for nine months and six months in default of payment of fine to Chhotey Lal and Bhagwan Deen, obviously exceeds one fourth of the term of imprisonment which is the maximum provided for the offence and cannot be said to be a lawful sentence. 4. Coming to the merits of the appeal on facts, it may be mentioned that the proceedings had commenced on a first information report lodged by one Jhallar on 20.3.1974 at 18-20 hours about an occurrence which took place at 4.00 p.m. on the same day. The allegations were that there was some dispute as to the extent of shares in the land held jointly by the two groups and as a relation for the same, the accused persons, numbering 8, had gone to the house of the informant and his brother who was armed with lathi etc., had assaulted Lallu, the brother of Jhallar. The allegations were that there was some dispute as to the extent of shares in the land held jointly by the two groups and as a relation for the same, the accused persons, numbering 8, had gone to the house of the informant and his brother who was armed with lathi etc., had assaulted Lallu, the brother of Jhallar. The first information report was taken as one under Section 308, I.P.C. It is very clear from the nature of the prosecution case that there was nothing in the first information report to indicate that there was any mind with any person amongst the accused to cause death and unless there is some action relating to culpable homicide, there would be no application of the provisions of Section 308, I.P.C. The nature of injury as was shown is very evident of the fact that the conviction has been made under Section 323, I.P.C. As regards the eye witnesses, it will be suffice to say that P.W. 1 Shiv Charan and P.W. 2 Bundi were both named in the first information report and they had come with a clear word that they had not seen anything. Though an effort was made by the prosecution to challenge them by way of cross- examination but apart from the procedural irregularity therein, nothing material could be made out in the so-called cross-examination which could give an impression that they had seen anything in the occurrence. Any statement given to the Investigating Officer, even if it was made, though it has been denied by the witnesses, would not reach the status of evidence before a court of law. 5. P.W. 3 Jhallar and P.W. 4 Lallu are real brothers, the former being the informer the latter being an injured. There is no doubt, and it was admitted by both the parties, that the two groups, the accused and the informant and his brother were not going on easily. There was Panchayat which had given some decisions earlier and naturally it may or my not be acceptable to one party or the other. But surely it leaves one or the other with grievance or ill will. The two, therefore, cannot be said to be independent witnesses. There was Panchayat which had given some decisions earlier and naturally it may or my not be acceptable to one party or the other. But surely it leaves one or the other with grievance or ill will. The two, therefore, cannot be said to be independent witnesses. May be they being victim, may or may not be independent persons, but where the testimony is not supported by so called named witnesses, it has to be scrutinised with a little more care. Applying this principle, I see that there are material contradictions in their statements. P.W. 3 Jhallar has gone to the stage of saying that Bundi and Shiv Charan had also seen the occurrence which was denied by them. It is not clear as to how they could depose that they had seen the occurrence unless they could have looked through the eyes of there witnesses which is impossible. The statement of both these persons, namely, P.W. 3 Jhallar, P.W. 4 Lally is that Smt.Bedamia had caught hold of Lallu from his back When a person was caught hold by anybody, it becomes risky for the assailant or the person holding to wield a lathi blow as with slight movement on the victim, the blow might fall on the head or back of the assailant's friend. This thing together with the aspect of the evidence as observed above, support the impression that the incident had not occurred in the form suggested by the prosecution and unless it could be said that the witnesses were speaking the whole truth, it could not be said that the offence alleged was proved by their statement. 6. In view of the observations made above, their appeal should succeed and the conviction and sentence awarded by the Sessions Judge should be set aside. The appeal is allowed. The conviction and sentence awarded by the learned Sessions Judge are hereby set aside. The appellants shall stand acquitted of all the charges framed against them. They are on bail. They need not surrender. The bail bonds are cancelled and sureties are discharged. Appeal allowed.