M. C. JAIN, J. ( 1 ) THE appellants are Sheo Nath, his son Sarvadeo and one Suresh who have been convicted under Section 324, I. P. C. read with Section 34, I. P. C. and each sentenced to undergo R. I. for two years by judgment dated 11/06/1981 passed by Sri Hem Raj Ram, the then II Additional Sessions Judge, Ballia in S. T. No. 45 of 1981. The trial was held under Section 307, I. P. C. read with Section 34, I. P. C. ( 2 ) THE basis of the prosecution was the F. I. R. lodged by Rajendra Singh son of injured Gauri Shanker Singh P. W. 1 at the concerned police station on 25-11-1979 at 2. 30 a. m. The incident took place in between the night of 24/25-11-1979 close to midnight at the tube well of the complainant situated in Village-Katahura, Police Station, Rashra, District Ballia. ( 3 ) THE relevant facts are that in the evening of 24-11-1979 Sheo Nath and Suresh accused approached Gauri Shanker Singh for providing water for irrigation from his tube well. Gauri Shanker Singh expressed his inability because of the scarcity of electricity. They, however, threatened him with dire consequences in near future. In between the fateful night Gauri Shanker Singh and his brother Brijendra Singh were sleeping inside, the Kothari of their tube well on separate cots. A lantern was glowing. At about 12. 30 a. m. he saw flickering of some light outside and gathered the impression that electricity supply had come. He got up from his bed and came out. The three appellants appeared there. Sheo Nath had torch and lathi whereas remaining two were armed with spears. Sheo Nath exhorted the other two to kill Gauri Shanker Singh as he had refused to supply water for irrigation from his tube well. Instantaneously, Sarvadeo and Suresh assaulted Gauri Shanker Singh with spears. On his alarm, his brother Brijendra Singh also came out from the Kothari with flashing torch. He, too, was assaulted. On the shouts of the victims, Ganga Dayal Singh P. W. 3 and Ram Rikh Singh reached and witnessed the incident. The assailants ran away. ( 4 ) ON the lodging of the FIR, a case was registered and investigation followed. Gauri Shanker Singh and Brijendra Singh were subjected to medical examination at 3. 00 and 3. 15 a. m. respectively. Dr. The assailants ran away. ( 4 ) ON the lodging of the FIR, a case was registered and investigation followed. Gauri Shanker Singh and Brijendra Singh were subjected to medical examination at 3. 00 and 3. 15 a. m. respectively. Dr. S. P. Sinha P. W. 5 had medically examined them. Following injuries were found on the person of Gauri Shanker Singh :-1. Punctured wound 2 cm x 1/2 cm x 11/2cm on the left side chest, 51/2 cm below left sternoclavicular joint. Fresh bleeding present. Margins clean-cut and everted. 2. Punctured wound I cm x 1/2 cm x 1/2 cm on the back and base of right index finger. Fresh bleeding present Margins clean-cut and everted. 3. Punctured wound I cm x 1/2 cm x 1 cm on the right palm on the web in between the index and middle finger. Fresh bleeding present. Margins clean-cut and everted. ( 5 ) THE injuries were simple and had been caused by sharp pointed weapon. Duration was fresh. ( 6 ) THE following injuries were found on the person of injured Brijendra Singh :-1. Punctured wound 1/2 cm x 1/4 cm x muscle deep on the front of left forearm 11 cm below elbow joint Fresh bleeding present. Margins clean-cut and everted. 2. Linear abrasion 6 cm long on the left hypochordium of abdomen 13 cm below left nipple. ( 7 ) THESE injuries were also simple and caused by sharp pointed weapon. Duration was fresh. ( 8 ) THE defence was of denial. ( 9 ) SHEO Nath Singh also stated in his statement under Section 313, Cri. P. C. that because of ailment in leg he could not even walk. ( 10 ) AT the trial, injured Gauri Shanker Singh P. W. 1 and another injured Brijendra Singh P. W. 2, eye-witness Ganga Dayal Singh P. W. 3, I. O. S. N. Chauhan P. W. 4 and Dr. S. P. Sinha P. W. 5 were examined. Believing the prosecution evidence and having regard to the nature of injuries sustained by the two injured, the Court below found the offence to be covered under Section 324, IPC instead of Section 307, IPC. S. P. Sinha P. W. 5 were examined. Believing the prosecution evidence and having regard to the nature of injuries sustained by the two injured, the Court below found the offence to be covered under Section 324, IPC instead of Section 307, IPC. ( 11 ) AT the hearing of the appeal, none has appeared from the side of the appellants, though they are represented on record by Sri G. P. Diskshit, Advocate, I have heard learned A. G. A. from the side of the respondent-State in opposition of the appeal and have carefully gone through the evidence on record. The appeal is being decided on merits. ( 12 ) TO start with, it deserves mention that FIR of this case is a prompt one, having been lodged at 2. 30 a. m. of the night of the occurrence. The incident had taken place at about 12. 30 a. m. The distance of the police station was two miles. The lodging of the FIR without loss of time lends valuable corroboration to the prosecution case. ( 13 ) SECONDLY, the medical evidence is in harmony with the ocular version. The appellants Sarvadeo and Suresh had allegedly caused injuries to Gauri Shanker Singh and Birjendra Singh with spears. Three punctured wounds were found on the person of Gauri Shanker Singh who had been examined medically at 3. 00 a. m. One punctured wound and linear abrasion were the injuries on the person of other injured Brijendra who was medically examined at 3. 15 a. m. The version of the Dr. S. P. Sinha P. W. 5 is there that said injuries could have been caused by sharp edged and pointed weapons such as spears. The injuries were found to be fresh at the time of the medical examination, meaning thereby that they could have been sustained at the time alleged by the prosecution. ( 14 ) THE culprits were known to the injured persons and eye-witness Ganga Dayal Singh P. W. 3 from before as all of them resided in the same village. there could be no question of misidentity. It has come in the testimony adduced before the Court below that the injured Brijendra Singh P. W. 2 had come out of the Kothari with a flashing torch. That apart, the witnesses Ganga Dayal Singh and Ram Rikh Singh had also come with flashing torches. there could be no question of misidentity. It has come in the testimony adduced before the Court below that the injured Brijendra Singh P. W. 2 had come out of the Kothari with a flashing torch. That apart, the witnesses Ganga Dayal Singh and Ram Rikh Singh had also come with flashing torches. Ganga Dayal Singh P. W. 3 has given plausible explanation for his presence that he was sleeping at his tube well which was only at a distance of 100 yards from the tube well of injured Gauri Shanker Singh. Therefore, he was in a position to rush up on hearing the shouts from the place of occurrence. He has only stated the truth in unalloyed terms that he could not see the actual assault, but found the appellants running from the spot. However, his res gestae evidence is there that at the spot itself the injured had informed him that the appellants were Suresh and Sarvadeo who used spears. There does not appear to be any reason to suppose that this witness would depose falsely against the appellants. ( 15 ) THE previous background was given in the promptly lodged FIR and also came to be stated by Gauri Shanker Singh P. W. 1 injured that in the preceeding evening the appellants had offered threats on his expressing inability to supply water to them for irrigation of their fields from his tube well. . The appellant Sarvadeo is the son of the appellant Sheo Nath whose field is in the south of the chak of injured Gauri Shanker Singh P. W. 1 in which tube well is installed. The field of appellant Suresh is adjacent in western side to the chak of Gauri Shanker Singh. Therefore, the prosecution case is acceptable that they wanted water from the tube well of injured Gauri Shanker Singh to irrigate their fields. ( 16 ) HOWEVER, an element of doubt persists so far as the participation of appellant Seho Nath in the incident is concerned. None of the injuries sustained by the two injured had been caused by lathi which was allegedly held by the appellant Sheo Nath. Rather, the clear statement of Gauri Shanker P. W. 1 and Brijendra Singh P. W. 2 is that they did not sustain any lathi injury. It is clear otherwise also on perusal of statement of Dr. S. P. Singh P. W. 5. Rather, the clear statement of Gauri Shanker P. W. 1 and Brijendra Singh P. W. 2 is that they did not sustain any lathi injury. It is clear otherwise also on perusal of statement of Dr. S. P. Singh P. W. 5. The spears were wielded by the other two appellants. Ordinarily, the lathi injury would have also been inflicted by Sheo Nath, if he was really present there with lathi. Presence of this old man, without doing anything, does not stand the test of probability. Therefore, benefit of doubt should have been afforded to him. ( 17 ) THE other two appellants, namely, Suresh and Sarvadeo had rightly been convicted under S. 324, IPC read with Section 34, IPC having regard to the nature of the injuries, which were simple. Their conviction has to be maintained. ( 18 ) COMING to the sentence part, it is to be noted that the incident took place nearly 23 years back. The offence under Section 324, IPC is punishable with imprisonment up to three years or with fine or with both. Having regard to the totality of the facts and circumstances, this Court is of the opinion that it would be expedient in the interest of justice to convert the sentence of appellants Suresh and Sarvadeo to payment of fine of Rs. 5,000. 00 by each of them. ( 19 ) IN the result, the appeal is partly allowed. The conviction and sentence passed against appellant Sheo Nath is set aside and he is acquitted. He is already on bail. ( 20 ) THE conviction of the appellants Suresh and Sarvadeo under Section 324, IPC is maintained. However, the sentence of two years rigorous imprisonment passed against each of them is converted into fine in that each of them would pay a fine of Rs. 5,000. 00 or would suffer rigorous imprisonment for nine months in default of payment of the same. Presently, they are also on bail. ( 21 ) LET a copy of the judgment along with record be sent to the Court below for needful action and compliance of this order under intimation to this Court within one month. Appeal partly allowed. .