Judgment B.N.P.Singh, J. 1. As some one had put night soil in front of house of Amar Nath Keshri, PW2 was making enquiries about the person who had committed mischief against him, and eventually he came to know from Mita Yadav, PW1, that the mischief had been committed by Gopalji Keshri and his four associates. It was alleged that when Amar Nath Keshri went to Shyam Sunder Keshri and questioned him for throwing night soil, the other appellants joined him and hurled abuses. When Amar Nath Keshri registered protest and came to his shop it was alleged, that they too came there when on exhortion made by Rajendra Keshri, Shyam Sunder Keshri and Rajendra Keshri dealt blows on him. However, it was expressly stated in the fardbeyan that the blows dealt by Shyam Sunder Keshri hit his head and also the lip from which the blood ozed out, and when blow was repeated, he sustained injuries on his left hand. The accusations against rest appellants was about dealing blows with lathi on him. After fardbeyan of Amar Nath Keshri was recorded by police, it came in action pursuant to which, investigation commenced. The Investigating Officer appointed in the case recorded statement of witnesses, visited place of occurrence, secured injury reports, and on conclusion of investigation, laid charge sheet before the court. The defence of the appellants was that of innocence and they ascribed their false implication. In the eventual trial that commenced against the appellants, the State examined altogether four witnesses, out of whom Murat Ram, PW4, was quite formal, who brought certain entries of the police case-diary on the record. The State also examined Amar Nath Keshri, PW2, who was maker of fardbeyan and also an injured witness. The other witness was Meeta Yadav, PW1, who was put in the witness box to lend assurance to the prosecution allegation, about Amar Nath, sustaining injuries at the hands of the assailants. The doctor put and examined at trial and this is all the witnesses that have been examined on behalf of the State. The other witness was Meeta Yadav, PW1, who was put in the witness box to lend assurance to the prosecution allegation, about Amar Nath, sustaining injuries at the hands of the assailants. The doctor put and examined at trial and this is all the witnesses that have been examined on behalf of the State. The trial court on appreciation of evidences, while recording guilt against Gopalji Keshri, Ashok Kumar Keshri and Kanhaiya Keshri under Sections 323 & 147 of the Indian Penal Code, instead of sentencing them at once, released them on probation under Section 4(1) of the Probation of Offenders Act, on their entering into a bond cautioning them to maintain peace and tranquility for a period of one year. The trial court, however, found Shyam Sunder Keshri and Rajendra Keshri guilty under Sections 323 & 148 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for two years and one year respectively on these counts. 2. Contentions raised at bar on behalf of the appellants to criticize propriety of finding recorded by court below was that the evidences of PWs 1 & 2, who were witnesses on the point of alleged assault, runs counter to each other and bristles with minor contradictions which cannot be overlooked. The contentions are raised that it would appear from the testimony of PW1 that the place of occurrence which situates at Ara-Buxar road, was a busy place but barring the employee, who happened to be PW1, none was examined to lend assurance to the allegation attributed to the appellants, by PW2. Yet it is urged that it has come in the evidence of PW1 that houses of Bihari Lal, Moti Lal, Hanumanji and Gauri Shankar ara in the same vicinity but the State has chosen only the interested witnesses to examine, entirely to the exclusion of those who could not have been independent witnesses. The non-examination of the investigating officer was also taken to be a ground to assail bonafide of the prosecution case. The learned counsel appearing for the State, however, resisted contentions raised at bar on behalf of the appellants and it is urged that the prosecution had led cogent and credible evidence in support of allegations attributed to the appellants. 3. The non-examination of the investigating officer was also taken to be a ground to assail bonafide of the prosecution case. The learned counsel appearing for the State, however, resisted contentions raised at bar on behalf of the appellants and it is urged that the prosecution had led cogent and credible evidence in support of allegations attributed to the appellants. 3. Now comming to the evidences that has been adduced on behalf of the State though Amar Nath Keshri, PW2 who was also the maker of fardbeyan, had shout to reiterate his early version which he rendered before the police with some variations, would state that Shyam Sunder Singh dealt blows with farsa on his head, left hand and also the lips when blood oozed out from the wounds. Even though no explicit accusations were attributed in his earlier version, to Rajendra Keshri about causing injuries on his person, in his evidence Amar Nath Keshri, would state to have sustained injuries at his hands on his lips, and this statement made by PW2 was challenged by the defence, there being no such narrations made by him before the police. 4. Meeta Yadav would state that Rajendra Keshri and Shyam Sunder Keshri dealt blows with farsa on Amar Nath Keshri which hit head and also the lips. About the other appellants, the witness would state that they too dealt lathi blows on him and this is also the evidence of PW2 about Ashok Keshri, Gopal Keshri and Kanhaiya Prasad dealing blows with lathi on Amar Nath Keshri. The doctor, who examined injuries on the person of Amar Nath Keshri, noticed incised wounds and one bruise on the right thigh. All the three wounds which were incised were, however, considered to be superficial in nature by the doctor. 5. Now while analysis the testimony of witnesses, one may not fail to notice that even though in his early version no implicit attribution was made by Amar Nath Keshri about Rajendra Prasad Keshri causing injuries on his person, improvements were made |n his evidence, and so iar Meeta Yadav PW1, was concerned, he would saddle only Shyam Sunder Keshri for dealing blows with farsa on him causing injuries on his head and lips. Though Rajendra Prasad Keshri was also suggested to have exhorted his associates but that was not the evidence of Meeta Yadav, PW1, and since evidence of Amar Nath Keshri suffer inconsistencies with his earlier version about complicity of Rajendra Keshri as the assailant, and also that Meeta Yadav would not saddle him with allegation of being assailant of Amar Nath Keshri, he is exonerated of the charges, and finding of the court below on this score is set-aside. So far Shyam Sunder Prasad Keshri was concerned, evidence of both Meeta Yadav and Amar Nath Keshri manifestly suggest him to be the assailant for causing incised wound on Amar Nath Keshri, and for which there has been corresponding finding of the doctor, who clinically examined the injured. Accusations were also attributed to Sham Sunder. Meeta Yadav even in his earlier version stated that he now repeated blows on the injured, and, in this view of the matter, the court below, rightly convicted Shyam Sunder Prasad Keshri finding him guilty under Sections 324 & 148 of the Indian Penal Code. 6. So far case of Gopal Keshri, Ashok Keshri and Kanhaiya Keshri was concerned, though they suffered conviction under Sections 323 & 148 of the Indian Penal Code, as has been stated, were not sentenced at once to substantive imprisonment and were released on probation. However, this fact cannot be lost sight of that though Meeta Yadav, PW 1, was stating before the Court that they dealt indiscriminate blows with lathi on the informant, the doctor, who examined injured, noticed only one bruise on the informant and it is quite unlikely that when three persons were making indiscriminate blows, there..would have been one bruise, and, in this view of the matter, since three persons were suggested to be author of one bruise, the finding recorded by court below recording conviction against them in also set-aside and they are acquitted of the charges. My attention has also been drawn to the fact that the prosecution was launched against the appellants in the year 1985 and they have suffered the ordeal of protracted prosecution for about seventeen years for causing superficial injuries and one bruise, and in my view, it would not be just and proper to sentence them to undergo custody, and, hence, while upholding conviction of Shyam Sunder Prasad Keshri, he is sentenced to the period already undergone by him, and in addition to that, he is sentenced to pay a fine of Rs. 1,500/- in default of which he would suffer rigorous imprisonment for five months. The fine so realised from Shyam Sunder Prasad Keshri shall be payable to the injured which is to be deposited with the Court below within two months from the date of receipt/production of copy of this order and with this modification the appeal partly succeeds.