Judgment B.N.P.Singh, J. 1. Prosecution was launched against the appellants on behest of Kanhaiya Kumar Jha (P.W. 3) with accusation that at 6.30 hours on 14th October, 1989, while he happened to reach Sapta Chowk, Police Station Rahika, District Madhubani, in the company of Anil Kumar Mishra (P.W. 1), he was intercepted by the appellants, who hurled abuses on them and on protest being made, both were subjected to assault. It was alleged that on exhortation made by Samrendra Kumar Mishra, Khelanand Mishra alias Shiv Kumar Mishra pierced a knife in his abdomen when he dropped to the ground in the pool of blood and, shortly on receipt of injury by him, the assailants made good their escape. The fardbeyan of Kanhaiya Kumar Jha was recorded at 17.30 hours on 16th October, 1989 in the clinic of Dr. S.M.Nawab at Darbhanga which forms the basis of the first information report, drawn up on 20th October, 1989, at Madhubani Police Station. After the Police was set in motion, investigation commenced and in course of investigation, Police Officer visited the place of occurrence, recorded statements of witnesses, secured injury report from the doctor and on conclusion of investigation, laid chargesheet before the Court. 2. In the eventual trial that commenced, the State examined altogether five witnesses including the injured, his family members, Anil Kumar Mishra who allegedly accompanied him at the time of receipt of injury, the doctor, who clinically examined the injured in his clinic, and also the Police Officer, who carried out investigation of the case. The defence too examined Dr. N.K. Singh (D.W. 1) and also brought on the record, some documents which include bed head ticket (Exhibit A), requisition sent by the Police (Exhibit B) and the injury report issued by Dr. N.K. Singh (Exhibit C). The defence of the appellants, both before the trial court and also this Court, had been plain denial of entire allegations, ascribing their false implication due to hostility between the parties. Explicit defence of the appellants at the trial was that though Kanhaiya Kumar Jha sustained injury by accidental fall from the motorcycle on the pointed substance, these injuries were made attributable to Khelanand Mishra alias Sheo Kumar Mishra, and to fortify their defence, the appellants also examined Dr. Explicit defence of the appellants at the trial was that though Kanhaiya Kumar Jha sustained injury by accidental fall from the motorcycle on the pointed substance, these injuries were made attributable to Khelanand Mishra alias Sheo Kumar Mishra, and to fortify their defence, the appellants also examined Dr. N.K.Singh as defence witness, and the trial court on evaluation of probative value of the testimony of witnesses, while negativing contentions raised on behalf of the appellants, rendered verdict of guilt against Amrendra Kumar Mishra and Babloo Kumar Mishra under section 323 of the Indian Penal Code (IPC), and regard being had to their age, character and circumstances, released them under probation of good conduct with caution to maintain peace and tranquility for a specified period and to receive sentence when called upon by the Court. As for rest appellants, the trial court recorded finding of guilt against Khelanand Mishra alias Sheo Kumar Mishra for the offence under sections 307 and 326 IPC and sentenced him to rigorous imprisonment for a term of seven years and five years, respectively, on these two counts. Conviction was recorded also against Samrendra Kumar Mishra under section 307/109 IPC for which he was sentenced to undergo rigorous imprisonment for a term of seven years and now these findings recorded by the trial court are being challenged before this Court. 3. Plethora of contentions were raised on behalf of the appellants to show their innocence and it is sought to be urged that even though injured was examined at Madhubani hospital, for which there has been not only positive finding of the doctor who attended him, but volume of documents have been placed on record which would unfailingly suggest treatment of the injured by Dr. N.K. Singh who recorded the finding about injury to the fall out due to accidental fall from the motorcycle. Contentions were raised that though there are tea shops, grocery shops and also number of residential house near Sapta Chowk, where the incident allegedly took place, none of these residing in the vicinity had been examined by the State and those who were examined include the family members and friends of the injured, entirely to the exclusion of those who could have been competent witnesses. While commenting on the credibility of P.W. 2, it is urged that though he claims to be ocular witness to the incident, his name did not transpire in the early version of the prosecution among the witnesses who flocked to the place of occurrence. Yet, it is urged that even the Police Officer, who visited the place of occurrence, did not record objective finding about there being any sign of violence there. The other limb of the argument, pressed into service on behalf of the appellant, was that though the occurrence allegedly took place at 6.30 p.m. on 14th October, 1989, it was not before lapse of about 24 hours that the statement of the injured was recorded and to crown all, even the first information report was recorded after lapse of six days at the Police Station which makes the early version of the prosecution a tainted document, and the last argument canvassed on behalf of the appellants was that as the prosecution was launched in the year 1989 and the appellants have suffered ordeal of protracted trial for about 13 years, this mitigating circumstance deserves consideration while considering to impose sentence on them, if finding of guilt recorded by the trial court is upheld by this Court. Contentions raised by the learned counsel for the appellants is resisted by the learned counsel for the State and it is urged that the State has led positive and credible evidence to bring home the charges against the appellants. 4. The facts of the case are tell-e-tell, as in most unambiguous and certain terms, evidences were led at trial by the State that after Kanhaiya Kumar Jha in the company of Anil Kumar Mishra came to Sapta Chowk, they were abused by the appellants who also slapped them on their protest. The witnesses made coherent statement before the trial court about Khela Nand Mishra alias Sheo Kumar Mishra piercing a knife in the abdomen of Kanhaiya Kumar Mishra when he dropped in the pool of blood. True it is that name of Radha Kant Jha, who happens to be none else but the father of the injured, did not appear in the first information report but the old proverb that First information report is not the last word of the prosecution, should not be lost sight of. True it is that name of Radha Kant Jha, who happens to be none else but the father of the injured, did not appear in the first information report but the old proverb that First information report is not the last word of the prosecution, should not be lost sight of. Since I do not find any infirmity in the evidence of Radha Krishna Jha, who projected himself to be the eye witness, I feel least inclined to reject his testimony and the coherent statement made by the witness about Kanhaiya Kumar Jha sustaining injury in his abdomen by piercing a knife by Khelanand Mishra receives ample corroboration from the positive finding recorded by Dr. S.M. Nawab who noticed following injuries : (i) Penetrating injury in the abdomen left of umbilicus 2" x 3/4" penetrating deep in the abdomen." The injury in the estimation of the doctor was grievous in nature caused by knife or any other penetrating weapon. 5 True it is that the Police Officer who carried out investigation of the case, did not take deep probe about the examination of the injured at Madhubani Hospital and subsequent thereto at Darbhanga, but for lapse of the Investigating Officer, the prosecution should not be a casualty. 6. Though Dr. N.K. Singh (D.W. 1) noticed abdominal injury on the person of Kanhaiya Kumar Jha, in the estimation of the doctor, it was on account of fall from the motor cycle, and also that though the defence brought on the record, bed head ticket, in most certain terms, the doctor would add that the bed head ticket has not been prepared in proper form, as it was written on a plain paper and that apart, time of admission of the injured had not been mentioned in the bed head ticket. Even the name of the person who informed about the injured, having sustained injury by the motorcycle, had not been mentioned in the bed head ticket. As has been urged at Bar, the witnesses admitted about admission of injured in Madhubani Hospital, from where he was referred to Darbhanga and this fact would find support from the positive finding recorded by Dr. N.K. Singh. As has been urged at Bar, the witnesses admitted about admission of injured in Madhubani Hospital, from where he was referred to Darbhanga and this fact would find support from the positive finding recorded by Dr. N.K. Singh. However, so far as the cause of injury was concerned, no where, even in the injury report, it was mentioned that it was only due to accidental fall of the injured from motorcycle and probably, that was not expected to be mentioned, as that was simply based on the information rendered by some person and the said person was admittedly not examined at trial even by the defence. The assertions made by the defence about injury sustained by the injured also suffer other infirmity, as had the injured sustained injuries by accidental fall from the motorcycle, he was expected to have sustained scratches and abrasions even on other parts of his person which is not the finding of the doctor who examined him. The trial court has also noticed that the endorsement made on the bed head ticket about the injured having suffered injury due to fall from the motorcycle, was not recorded in the same sequence. 7. Though other persons also were shown to have flocked to the place of occurrrence, they were not examined by the State for the simple reason that the State found them hostile to the case for which even a petition had been filed before the trial court and bona fide of the prosecution case would not suffer set back on that count. 8. The accident allegedly happened on 14th October, 1989, pursuant to which injured was taken to Madhubani Hospital, where he was admitted on the same day and, once the defence has relied on this evidence, the matter was no longer debatable about belated prosecution, and that apart, as the injured had grievous injury on his person, the anxiety of those who accompanied him was firstly to make him available medical aid than to take recourse to Police authority, and on these premises. I find that the finding recorded by the trial court did not suffer legal, much less any serious infirmity warranting any interference by this Court so far as the conviction was concerned. I find that the finding recorded by the trial court did not suffer legal, much less any serious infirmity warranting any interference by this Court so far as the conviction was concerned. This is admitted that there was no accusation about repetition of blow by the assailant, much less there was intervening circumstance which could desist the assailant to translate his design into action, and none of the witnesses had been stating that Samrendra Kumar Mishra exhorted the assailant to eliminate Kanhaiya Kumar Jha and on these premises, I am constrained to hold that the trial court should have recorded conviction against Khelanand Mishra alias Sheo Kumar Mishra only under section 326 IPC, and hence, the finding of guilt is recorded under Section 326 IPC, having set aside his conviction under Section 307 IPC. Likewise, conviction recorded against Samrendra Kumar Mishra is converted to under Section 326/109 IPC. It is brought to my notice that Kheianand Mishra remained in custody both as under trial prisoner and also during post conviction period, for about ten months and in this view of the matter, regard being had to the fact that he has suffered the ordeal of protracted trial for about 13 years, his sentence is reduced to the period already undergone and in addition to that, he is sentenced to pay a fine of Rs. 5000A (five thousand), in default of which, he would suffer rigorous imprisonment for a term of one year. Likewise, since Samrendra Kumar Mishra, the other appellant has remained in custody for about a month, he is sentenced to the period already undergone by him. Finding of guilt recorded by the trial court in respect of other two appellants is, however, upheld and with this modification, the appeal is dismissed. The amount of fine, so realised from appellant no. 1, be deposited in the trial court within two months of the receipt of the order and on realisation, half of it may be paid to the injured or his heir, if the former is not alive.