A. K. PADHI, J. ( 1 ) NINE persons including the four petitioners were charge sheeted under sections 323, 341, 342 read with section 34 I. P. C. The trial court acquitted five of them and convicted the four petitioners under section 323 I. P. C. and sentenced each of them to undergo R. I. for six months and to pay a fine of Rs. 1,000/- in default to undergo S. I. for one month. The trial court further convicted Ganesh Bhola (petitioner No. 1) and Paban Bhola (petitioner No. 2) under section 341, I. P. C. and sentenced each of them to undergo R. I. for six months under that section. Being aggrieved by conviction and sentence passed by trial court, petitioners filed Criminal Appeal No. 63/47 of 9 1/90. The appellate court confirmed the conviction and sentence passed by the trial court. Challenging the conviction and sentence, petitioners have filed this Criminal Revision. ( 2 ) THE prosecution case in short; is that on 18. 3. 1983 at about 11. 30 AM. Sarat Kumar Champati (P. W. 2) was going on cycle at village Batali assailants assaulted him by means of lathis, iron rods, cycle chains, fist blows and slaps. After assaulting him and taking away his cycle and other articles, the assailants dragged him to the nearby village and tied him to an electric pole and thereafter decamped from the place. Sarat Champati was rescued and taken to Banpur hospital and from Banpur hospital he was shifted to M. K. C. G. Medical College and Hospital, Berhampur for treatment. On getting information, the uncle of the injured (P. W. 1) lodged information and investigation was started and thereafter charge sheet was submitted against nine accused persons under sections 323, 341, 342 read with section 34, I. P. C. ( 3 ) THE plea of the defence is that of total denial. ( 4 ) THE prosecution has examined 12 witnesses though the trial court has stated that 11 witnesses have been examined (two persons i. e. Kishore Kumar Champati and Benudhar Mandal have been described as P. W. 6 ). No witness has been examined on behalf of the defence. ( 4 ) THE prosecution has examined 12 witnesses though the trial court has stated that 11 witnesses have been examined (two persons i. e. Kishore Kumar Champati and Benudhar Mandal have been described as P. W. 6 ). No witness has been examined on behalf of the defence. ( 5 ) THE trial court after assessing the evidence of the witnesses and the exhibited documents came to the conclusion that Prafulla Bhola, Ganesh Bhola, Sadasiva Mali and Pabana Bhola are guilty of offence under Section 323 I. P. C. Accepting the evidence of P. W. 2, the injured, trial court further came to the conclusion that Paban and Ganeshare liable under section 341 I. P. C. He further held that Godavari Mali, Brajabandhu Pradhan, Manguli Pradhan, Amina Naik and Kaviraj Bhola who had faced trial being charge sheeted are not guilty of the offences under sections 323, 341, and 342/34 I. P. C. and acquitted them under section 255 (1) Cr. P. C. The trial court sentenced all the petitioners under section 323 I. P. C. and sentenced each of them to undergo R. I. for six months and to pay a fine of Rs. 1000/- in default to Undergo S. I. for one month and convicted Ganesh Bhola and. Pabana Bhola under section 341 I. P. C. and sentenced each of them to undergo six months R. I. The appellate court has confirmed the above conviction and sentence. ( 6 ) COUNSEL for the petitioners submitted that:a) the maximum sentence which can be imposed under section 341 I. P. C. is to the tune of one month S. I. or with fine which may extend to five hundred rupees, or with both. The very fact that the trial court has sentenced the petitioners I and 2 to undergo R. I. for six months under section 341 I. P. C. proves non application of mind by the trial court and the appellate court has mechanically confirm the finding and sentence passed by the trial court under section 341 I. P. C. b) Admittedly the occurrence took place on 18. 3. 1983 at about 11. 30 AM. The evidence of the 1. 0. discloses that he examined the injured (P. W. 2) in hospital on 24. 3. 1983 at 11 AM. 3. 1983 at about 11. 30 AM. The evidence of the 1. 0. discloses that he examined the injured (P. W. 2) in hospital on 24. 3. 1983 at 11 AM. in Berhampur and the injured also has stated that he was examined in the hospital and he was an indoor patient in M. K. C. G. Medical College ani Hospital from 19. 3. 1983 till 13. 4. 1983. Dr. Gopabandhu Thakur of M. K. C. G. Medical College and Hospital, Berhampur has been examined as P. W. 3. He has stated that the injured was referred from Banpur Govt. Hospital to M. K. C. G. Medical College and Hospital on 19. 3. 1983. The injured was advised to take bed rest and was discharged on 22. 3. 1983. He was periodically examined as an out-door patient and he was declared fit on 13. 4. 1983. The discharge certificate has been exhibited as Ext. 6. It discloses that the injured was discharged on 22. 3. 1983. In view of conflicting versions evidence of the injured should not be accepted. c) Though incident occurred on 18. 3. 1983, the injured (main witness) was examined on 24. 3. 1983 and the rest of the eye witnesses were examined on 26. 4. 1983. The 1. 0. has not given any explanation for this delayed examination. The injured has stated in his statement that some persons of Sahashpur came towards him at the time of his assault. P. W. 11, the 1. 0. has stated that he had visited the spot on 19. 3. 1983 and had examined some witnesses. He had examined one Harish Chandra Nayak as cited in the charge sheet at the spot, but he has not been a witness. The explanation offered is as he had not implicated any of the accused persons for which he was not cited as a witness. Since the alleged eye witnesses were examined by the 1. 0. one month and seven days after the occurrence, their evidence should be discarded and for non-examination of eye witnesses prosecution is guilty of suppression of truth. Mr. Rao, counsel for the State on the other hand submitted that delay in examination of the eye witnesses should not be the ground for acquittal. No question has been asked to the 1. 0. Mr. Rao, counsel for the State on the other hand submitted that delay in examination of the eye witnesses should not be the ground for acquittal. No question has been asked to the 1. 0. for the delay in examination of the eye witnesses, therefore, the findings of the courts below should not be interfered with. ( 7 ) THE courts below have cited in sentencing the petitioners 1 and 2 to R. I. for six months under section 341 I. P. C. which is not permissible under law-Section 341 I. P. C. reads as follows: 341. Punishment for wrongful restraint Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both. Therefore, even if the trial court found that petitioners 1 and 2 guilty under section 341 I. P. C. , he would not sentenced them to six months R. I. under that section. The appellate court has confirmed the above sentence without applying his mind. The sentence imposed by the trial court affirmed by the appellate court is not sustainable in the eye of law. Regarding the merit of the case, the trial court relied on the evidence of Bansidhar Sundara (P. W. 4), Puma Chandra Naik (P. W. 5) and Kishore Champati (P. W. 6) as eye witnesses to the occurrence who have corroborated the testimony of P. W. 2, the injured for convicting the petitioners under section 323 I. P. C. P. W. 2 in his deposition has stated: I On 19. 3. 1983, I regained sense at M. K. C. G. Medical College, Berhampur. I remained till 13. 4. 1983 at M. K. C. G. Medical College Hospital. On 24. 3. 1983 S. I. of police took my statement. Dr. Gopabandhu Thakur treated me P. W. 11, the 1. 0. has stated: I have, not written who identified the injured to me but I remember that informant accompanied me. On 24. 3. 1983 at about 11 A. M. I examined injured at Berhampur Hospital TI P. W. 3 Dr. Gopabandhu Thakur who had treated P. W. 2, in his evidence has stated: I He was advised to take bed rest and was discharged with advice on 22. 3. 1983. The treatment was continued in the out door vide No. 4065. 3. 1983 at about 11 A. M. I examined injured at Berhampur Hospital TI P. W. 3 Dr. Gopabandhu Thakur who had treated P. W. 2, in his evidence has stated: I He was advised to take bed rest and was discharged with advice on 22. 3. 1983. The treatment was continued in the out door vide No. 4065. He was examined in the outdoor periodically and was found fit for duty from 13. 4. 1983 Ext. 6 discloses that P. W. 2 was discharged on 22. 3. 1983. In view of the evidence of Doctor (P. W. 3) who is more reliable and the documentary evidence i. e. discharge certificate (Ext. 6), the evidence of P. Ws. 2 and 11 becomes doubtful as by 24. 3. 1983 P. W. 2 was already discharged from the hospital. ( 8 ) P. WS. 4, 5 and 6 are the eye witnesses on whom both the courts below have placed reliance, were examined by the I. 0. on 26. 4. 1983. Regarding examination of eye witnesses the 1. 0. has stated as follows: 11j have examined Harish Chandra Nayak at the spot, but he was not cited in the C. S. as witness as no incriminating material came out from the witness. On 26. 4. 1983, I examined the other witnesses at the spot, but I have not mentioned as to where I examined them. The very fact that the eye witnesses were examined one month 7 days after the occurrence, cast doubt regarding their truthfulness. No explanation has been offered by the 1. 0. as to why he had examined the eye witnesses at such belated stage more so when he had examined the injured on 24. 3. 1983. Neither the witnesses nor the 1. 0. , state that the witnesses were not available to be examined by the police. In such circumstances, it would be unsafe and hazardous to accept the evidence of the eye witnesses with regard to the occurrence. In Prafulla Jena and another v. The State considering such a question, their Lordships have opined: In that view of the matter, non-examination of the witnesses for such a long period leaves the scope wide open for the witnesses to embellish their versions to the advantage of the prosecution and it appears as if there was an attempt of dressing the prosecution case. For coming to such conclusion their Lordships relied on Subash and another v. State of U. P. (A. I. R. 1976 S. C. 1924) and Bhagwan and another v. The State of U. P. (A. I. R. 1980 S. C. 1750 ). In Babuu Kundu v. The State of Orissa (1994) 7 O. C. R. 332), his Lordship while considering the effect of delayed examination of eye witnesses has observed: It is true that a defect investigation is not always automatically to culminate in throwing out of the prosecution case and acquittal of the accused and that unless the 1. 0. has been asked in the cross-examination regarding the defect, his evidence is not to be rejected only on account of the defect, yet it has to be appreciated that where the defect in the investigation is so fundamental and strikes at a deeper root the entire prosecution case thereby falters the Court may not rely upon and justifiably on the genuineness of the prosecution case unless plausible and acceptable explanation comes forth for the deficiency. ( 9 ) IN view of the testimony of P. W. 3, the doctor and Ext. 6, the discharge certificate to the effect that P. W. 2 was discharged on 22. 3. 1983, it becomes doubtful as to how P W. 2 was examined on 24. 3. 1983 in the hospital. ( 10 ) NON-EXAMINATION of the three eye witnesses for one month and seven days after the occurrence without any explanation for their non-examination strikes at the root of the entire prosecution case. One witness examined by the 1. 0. has not been examined in the Court as according to 1. 0. he did not support the prosecution case. In this case the defect in investigation is so fundamental that it has become unacceptable. After considering all the above facts in my opinion, the prosecution case is doubtful and the petitioners are entitled to benefit of doubt. ( 11 ) IN the result, the Criminal Revision is allowed and the petitioners are acquitted from all the charges under benefit of doubt. Revision allowed. .