Judgment R.N.Sahay, J. 1. There are as many as six appellants in this appeal which has been preferred against the judgment and order of the 3rd Additional Sessions Judge, Bhagalpur, dated 31st July, 1989. The first appellant is Sk. Saukat Ali Appellant No. 4, Sk. Mustaquin and appellant No. 6, Sk. Khalil are sons of first appellant, Saukat All. Appellant No. 5, SK. Wasir is own brother of appellant No. 1. Appellant No. 2 is SK. Alam and appellant No. 3 is Sk. Hasnain. All the appellants have been convicted under Sec. 326 read with Sec. 149 of the Indian Penal Code and sentenced to five years imprisonment. Appellant Saukat Ali and Sk. Khalil have been convicted twice for the same offence i.e. Sec. 326 of the Indian Penal Code. Appellant Sk. Mustaquin and Sk. Wasir have also been convicted under Sec. 324 of the Indian Penal Code and sentenced to two years although they have been convicted under Sec. 326 of the Indian Penal Code. All the six appellants have been further convicted under Sec. 148 of the Indian Penal Code and sentenced to imprisonment for one year. 2. The case of the prosecution was that on 10-8-1984 at 8.00 a.m., Mahfazoor Rahman @ Fool Babu was going to open his shop in village Balustart PS Bounsi in the district of Bhagalpur. When he reached near the house of Saukat Ali, he was stopped by all the appellants, who were standing there with garasi in their hands. Sk. Saukat Ali asked "ab kahanjaoge beta bulao apne baap ko ", and when Saukat Ali ordered that the informant be assaulted. Saukat Ali himself assaulted him firstly, with garasa on his left hand, which cut his left hand. Appellant Sk. Khalil assaulted him with garasa on his neck on the right side. Sk. Mustaquin assaulted him with garasa on his hand by which three fingers of his right hand were cut - off. Appellant Sk. Hasnain and Sk. Alam assaulted him with garasa. The motive for the assault on the complainant was that a case was pending between Sk. Azim and Sk. Saukat Ali and Saukat Ali was in the impression that the informant was the root cause of the quarrel. The informant on receiving injuries on his person fell down and raised hulla on which several persons reached there and witnessed the occurrence. 3. Azim and Sk. Saukat Ali and Saukat Ali was in the impression that the informant was the root cause of the quarrel. The informant on receiving injuries on his person fell down and raised hulla on which several persons reached there and witnessed the occurrence. 3. These appellants have been convicted on the testimony of the informant Md. Mahfazoor Rahman and five other witnesses corroborated the testimony of the informant. 4. The injured informant was examined on 10-8-1984 by Dr. G.D. Jaiswal of State Dispensary, Bousi. The doctor found following injuries: (1) Privation of index, middle, ring and little fingers of right hand. (2) Incised wound cross the whole of the left palm only part of skin is intact. (3) Incised wound 3" x 2" x 1" on the right forearm. (4) incised wound 5" x 2" x 2" on the right side of the neck. (5) Punctured wound 1/8" x 1/2" x 1" near right ear. Injury Nos. (i) and (ii) were grievous in nature and injury Nos. (iii), (iv) and (v) were simple in nature. The doctor, who examined the informant opined that the injuries were caused by sharp edged weapons. 5. On the same day, the doctor had examined the appellant Sk. Saukat Ali and found one simple injury on his chest caused by hard and blunt substance. The Dr. G.D. Jaiswal also examined appellant Sk. Wasir and found incised wound 2" x 1" x bone deep on the left leg below ankle joint. The injury was simple in nature caused by sharp edged weapon. 6. It is relevant to state that on 108-1984 Sk. Saukat Ali lodged First Information Report against the informant and eleven other persons. The allegation in the counter case was under Secs. 147, 148, 149 and 341 of the Indian Penal Code. Cognizance was also taken in the counter case. The allegation in the counter case was that on the orders of the informant, Sk. Wasir, the brother of the appellant No.1 was assaulted by other named accused. 7. The appellants came out with a defence that the prosecution case was not worthy of reliance since the injuries on Saukat Ali and his brother has not been explained by the prosecution. Another important fact to be noticed is that the informant although in his fardbeyan (Ext. 3) stated that he was also assaulted by Sk. Hasnain and Sk. 7. The appellants came out with a defence that the prosecution case was not worthy of reliance since the injuries on Saukat Ali and his brother has not been explained by the prosecution. Another important fact to be noticed is that the informant although in his fardbeyan (Ext. 3) stated that he was also assaulted by Sk. Hasnain and Sk. Alam but, in his statement given before the BDO of Bousi Block (Ext. 5) he has not made any allegation of assault by Sk. Hasnain and Sk. Alam and simply stated that Sk. Hasnain and Sk. Alam were also with the remaining accused persons at the time of the alleged occurrence. Learned Additional Sessions Judge, however, convicted the appellants Sk. Hasnain and Sk. Alam with the aid of Sec. 149 of the Indian Penal Code. 8. In my view, the conviction of these two appellants, namely, Sk. Hasnain and Sk. Alam with the aid of Sec. 149 of the Indian Penal Code cannot be maintained in the facts and circumstances of the case. In his evidence, the informant and other witnesses have stated about assault by these two appellants also which is contradicted by the statement before the BDO. The appeal of these two appellants deserves to be allowed on this short ground. 9. As regards the counter case, the learned trial Judge has observed that the injuries were simple in nature and that the case was lodged after Saukat Ali was arrested by the Police. Learned trial Judge has also drawn adverse inference against the accused persons for not promptly informing the appellants about their version of the occurrence. Learned trial Judge has rejected the defence case outright in view of the fact that there was consistent evidence of the prosecution witnesses and in view of the serious injuries sustained by the informant. 10. Learned counsel for the State has argued that the conviction of the appellants is perfectly in order and should not be interfered with. 11. Appellant Sk. Saukat Ali was aged about 55 years at the time of his conviction by the trial Judge. The occurrence is of the year 1984. Two grievous injuries were found. The evidence is that assault by Sk. Saukat Ali caused injury No. (ii) which was serious injury. Injury No. (1) was attributed to Sk. Mustaquin and Sk. Wasir. Injury on the neck was attributed to Sk. Khalil. The occurrence is of the year 1984. Two grievous injuries were found. The evidence is that assault by Sk. Saukat Ali caused injury No. (ii) which was serious injury. Injury No. (1) was attributed to Sk. Mustaquin and Sk. Wasir. Injury on the neck was attributed to Sk. Khalil. Other injuries were simple. I am in agreement with the finding of the trial Court that with regard to participation of the appellants Nos. 1 and 4 to 6, namely, Sk. Saukat Ali, Sk. Mustaquin, Sk. Wasir and Sk. Khalil in the assault. Injury on the neck is attributed to Sk. Khalil. The injury was simple in nature. It is difficult to accept the evidence that three fingers of the informant were cut-off-by two persons Sk. Wasir and Sk. Mustaquin. I, therefore, hold that appellants Saukat Ali, Sk. Mustaquin, Sk. Wasir and Sk. Khalil have been rightly convicted under Sec. 323, Indian Penal Code. Conviction of appellants Sk. Alam and Sk. Hosnain is set aside. So far sentence is concerned, in my opinion, sentence of five years is excessive since the occurrence is of the year 1984. Considering the facts and circumstances of the sentence of the case, the sentence of appellants Sk. Saukat Ali, Sk. Mustaquin, Sk. Wasir and Sk. Khalil is reduced to one year imprisonment. These four appellants are further directed to pay a fine of Rs. 1,500.00 and in default, they will have to suffer imprisonment for a period of sixmonths. The entire fine if, realised shall be paid to the informant or his heirs. The period of sentence already undergone by them shall be set-off from the substantive sentence. The conviction of appellants Nos. 2 and 3, namely, Sk. Alam and Sk. Hasnain @ Md. Hassanin is set aside and they are acquitted of the charges. They are discharged from the liability of their bail bonds. Appeal disposed of accordingly.