S. K. AGARWAL, J. ( 1 ) HEARD learned counsel for the applicants Sri G. S. Chaturvedi assisted by Sri Samit Gopal, Sri K. N. Joshi, learned counsel for the complainant and learned A. G. A. ( 2 ) THE present appeal has come to this Court against an order of conviction under Sections 307/149, 325/149, 323/149 and Section 147 IPC. The appellants are consequently sentenced to 4 years R. I. , one yearr. I. , 6 months R. I. respectively under the above said counts. The sentences were to run concurrently. ( 3 ) THE brief facts of the case are that appellants and victim both are collaterals. They were living in the same area. The relation between them were strained due to litigations including proceedings under Section 107/116. As a consequence of this animosity, on 2-4-1989 in the morning at about 8. 00 A. M. an assault was launched by these appellants and 3 others who were acquitted by the trial Court upon Shiv Balak Bharti, Raghunath Bharti, Ram Kumar Bharti and the informant Ram Das Bharti while they were harvesting their Arahar crop. The assault culminated on the arrival of the witnesses who heard the alarm raised by the victims of the incident. The assailants as soon as they saw a number of people approaching towards the site of occurrence withdrew from the spot with their respective weapons. The report was transcribed on the dictation of the informant, Ram Das Bharti, by one Ramanand Rai and the same was taken to police station Bairiya on the same day and lodged at about 12. 45 P. M. it is Ex. Ka-1. Relevant entries in the General Diary of the police station were made. The offence was registered and the check F. I. R. was also prepared by the Head Moharrir. P. W. 5 Ram Sanehi Yadav. After the registration of the case the investigation was taken up by P. W. 6, Ram Daras Rai but before he could complete the investigation, it was entrusted to Rang Lal Pandey who completed the investigation and submitted charge-sheets in Court against all the accused persons. The injured persons were medically examined by two doctors Dr. V. Rai, P. W. 4, who examined Shiv Balak, Raj Kumar and Raghunath on the date of incident itself. Dr. Vijay Kumar, P. W. 9, examined the injuries of Smt. Lalmani, Dr. The injured persons were medically examined by two doctors Dr. V. Rai, P. W. 4, who examined Shiv Balak, Raj Kumar and Raghunath on the date of incident itself. Dr. Vijay Kumar, P. W. 9, examined the injuries of Smt. Lalmani, Dr. R. C. Rai, P. W. 8, Radiologist, subjected Shiv Balak Bharti, P. W. 3, Raj Kumar Bharti, P. W. 7 and Smt. Lalmani to X-ray examination. A fracture of the parietal bone was detected in the case of Shiv Balak Bharti. ( 4 ) THE prosecution in support of its case apart from above witnesses examined 3 eye witnesses. They are Ram Das, P. W. 1, the informant, Raj Kumar Bharati, P. W. 2 and Shiv Balak Bharti, P. W. 3. ( 5 ) THE learned Sessions Judge after a thorough and proper appraisal of the evidence came to the conclusion that the offence against the accused persons was proved on all those counts for which they were charged for and convicted and sentenced them as earlier stated. He had extended benefit of doubt and acquitted three viz. Sri Ram Bharti, Sarju Bharti and Nand Kishore Bharti. Sri Ram Bharti was armed with Ballam and rest were armed with Lathi. Sarju Bharti and Nand Kishore were granted benefit of doubt on the ground that they were the men of considerable advanced age. Sri Ram Bharti was acquitted on the ground that none of the victim had sustained any injury of the weapon i. e. Ballam with which he was armed. ( 6 ) IT has been urged before me that no offence under Section 307 IPC is made out against these appellants. The injuries sustained by the victims are wholly incompatible with the number of assailants. According to learned counsel, in all 25 injuries were caused upon the 3 victims. They have also challenged the presence and injuries of Smt. Lalmani. Who is the author of Shiv Balak P. W. 2s head injury is not specified. ( 7 ) A perusal of the statements of the 3 eye witnesses including the two injured leaves no room for any doubt that the incident had taken place at the time and almost in the manner alleged by the prosecution witnesses. No serious infirmity in the prosecution evidence except as stated earlier were brought about by the defence. ( 7 ) A perusal of the statements of the 3 eye witnesses including the two injured leaves no room for any doubt that the incident had taken place at the time and almost in the manner alleged by the prosecution witnesses. No serious infirmity in the prosecution evidence except as stated earlier were brought about by the defence. In the result no useful purpose will be served by dealing with the witnesses. The only question that requires consideration is whether the appellants intended to cause death or can they be attributed in the minimum, knowledge, that the assault with their respective weapons could have result into the death of Shiv Balak. ( 8 ) SO far as the prosecution evidence is concerned, it is absolutely silent with regard to the author of the head injury of Shiv Balak. Eight persons were convicted by the trial Court and in the assault according to the prosecution side 11 persons participated. Complete absence of specification of the author of this injury, in the circumstances, leaves no space for this Court to uphold the conviction of these appellants under Section 307 IPC with the help of Section 149 IPC. Even medical officers had not come up with a categorical statement that the injury sustained by Shiv Balak on hishead was sufficient in the ordinary course of nature to cause his death. The precise statement P. W. 4, Dr. V. Rai is as under :-"shiv Balak wa Rajkumar ki chhote sir par vital part par hai sir par lathi maarne se aayee hui chote jeevan ke liya ghatak bhi ho sakti hai. Sar Par lathi ki chot se maut hona bhi sambhav hai. Uparokt teeno ghayalo ki choten 2-4-89 ko 8 baje pratah kaal ana sambhav hai. ( 9 ) IF this statement is analysed, it transpires that this witness P. W. 4, Dr. V. Rai had fallen short of the requirement of law. There must be a positive statement that injury sustained by the victim on his head, which is a vital part, was likely to cause his death. There is a big gap between may result into death and likely to cause death. The intention of P. W. 4 apparently is by using the word "jeevan ke liye ghatakbhi ho sakti hai that it might have resulted in death. There is a big gap between may result into death and likely to cause death. The intention of P. W. 4 apparently is by using the word "jeevan ke liye ghatakbhi ho sakti hai that it might have resulted in death. In the circumstances I cannot uphold the conviction of these appellants under Section 307 readwith Section 149 IPC. In the result, their conviction under this count cannot be sustained and is hereby set aside. ( 10 ) HOWEVER, I do not find any merit in the contention with regard to Sections 325/149 and 147 IPC. An assault with whatever intention caused by as many as 11 persons out of whom 8 have been convicted cannot be allowed to go scot free if a single injury is found to be grievous on a vital part. So far as Section 325 is concerned, absence of any specific role attributed to any person as author of that injury will have no effect on the same. It can specially be gathered from the manner of assault and number and nature of injuries that they could have at least intention to cause grievous hurt. One injury of Shiv Balak and two injury on the mouth of Raj Kumar have resulted into fracture of his parital bone breaking of his tooth and the other in the fracture of elbow. In these circumstances these appellants have no escape from Section 325 IPC. So far as their offence under Section 325 read with Section 149 is concerned the same is maintained. So far as their conviction under Section 323/149 IPC is concerned, it is also confirmed. So far as conviction under Section 147 is concerned, there is no doubt about their constituting an unlawful assembly. In the circumstances their conviction under Section 147 too cannot be interfered with. ( 11 ) THE last submission made before me by learned counsel for the appellant is regarding the sentence. According to him these appellants and the victims are collaterals. If they will be sent to jail after 11 years of occurrence and 8 years after admission of this appeal it will add fuel to the fire i. e. their enmity and if a lenient view is taken by this Court it may act as a cementing factor to the strain in their relations. If they will be sent to jail after 11 years of occurrence and 8 years after admission of this appeal it will add fuel to the fire i. e. their enmity and if a lenient view is taken by this Court it may act as a cementing factor to the strain in their relations. Learned counsel for the appellants had proposed that in lieu of the remission in their sentence this court may impose some fine in the alternative. In my opinion after 11 years of the incident since they have been acquitted for the offence under Section 307 readwith Section 149 IPC. , for the minor charges under Sections 325, 323 and 147 IPC it shall be sufficient in the interest of justice if they are allowed the benefit of sentence already undergone by them after conviction and before they were granted bail after their arrest during investigation. It has been brought to my notice that 10 to 12 days. All these appellants had remained in jail after their conviction and some of these appellants had been for 15 days and others for about a month during investigation. In my opinion it shall be sufficient sentence in lieu of jail term awarded by trial Court. I propose to impose a fine of Rs. 1500. 00 under Section 325/149 IPC on each of these appellants. They are also (sic) in deposit a fine of Rs. 500. 00 under Section 323/149 IPC and Section (sic) IPC each independently. In all under the above said 3 counts they are directed to pay a sum of Rs. 2500. 00 each as fine. This fine shall be deposited by them within 8 weeks from today. In the event of their failure to deposit this fine they will undergo the sentences awarded to them for these counts by the trial Court. ( 12 ) THIS appeal is partly allowed to the extent of modifications made above. They are on bail. They need not surrender. Their personal bonds are cancelled and sureties are discharged. Learned C. J. M. is directed to report back whether fine is deposited or not. Ordered accordingly. .