Judgment BRAJ NANDAN PRASAD SINGH, J. 1. Though both the appellants suffered conviction under Section 392 of the Indian Penal Code for which they were sentenced to suffer rigorous imprisonment for a term of 10 years and also to pay of Rs. 5,000/- each, in default of which to undergo further rigorous imprisonment for a period of two years, Bhukhal Das suffered conviction also under Section 397 of the Indian Penal Code for which he was sentenced to suffer rigorous imprisonment for a term of 10 years with direction that in his case the sentences shall run concurrently. 2. The salient features of the prosecution case can be recapitulated with brevity. It was alleged that at about 8.00 p.m. on 16th October, 1994 while Ganga Sah (PW5) was returning from market with sale proceeds of bananas, he was intercepted by the appellants at some distance, north-east to Chanpatia Bazar, when miscreants coerced him, pursuant to which Bhukhal dealt successive blows on his person with dagger, which followed profuse bleeding from the wound. As for Allauddin Mian, it was alleged that he relieved him of his sale proceeds. Fardbeyan of Ganga Sah, the injured, was recorded in Beetiah hospital at 14 hours on 28th October, 1994, pursuant to which the investigation commenced, and in course of investigation, the police while collecting evidences, visited place of occurrence, recorded statement of witnesses, got the injured clinically examined by the doctor and on conclusion of investigation, laid charge-sheet before the Court. 3. At trial, the State examined altogether 8 witnesses who were the injured, his son, doctor, two Police Officers and also other host of witnesses, some of whom turned volte face to the State. 4. The defence of the appellants before the Court below and this Court was that of innocence and they ascribed their false implication, notwithstanding there being no animosity with the injured. The defence, however, did not choose to examine any witness, and the trial Court on evaluating probative value of testimony of witnesses, recorded finding of guilt and sentenced the appellants in the manner stated above. 5. For appreciation of contentions raised, the narrations made by the prosecution witnesses can be stated with brevity. Shiv Pujan Sah (PW 1) had turned volte face to the State. 5. For appreciation of contentions raised, the narrations made by the prosecution witnesses can be stated with brevity. Shiv Pujan Sah (PW 1) had turned volte face to the State. While both Gopal Sah (PW 2) and Raj Kumar Sah alias Raju Sah (PW 3) stated to have noticed wounds on the person of Ganga Sah who was carried to Chanpatia hospital. Attention of Raj Kumar Sah alias Raju Sah (PW 3) had been drawn by the State to suggest that before police he had claimed to be an ocular witness to the assault made on Ganga Sah. 6. Nagendra Sah alias Bhusa Sah (PW 4) though claimed to be an ocular witness to assault made on his father by the appellants who also relieved him of his Rs. 150/-, he would acknowledge that he happened to reach the place of occurrence, after five minutes of the incident, when he noticed his father dropped on the ground with wounds on several places on his person. Though this witness claimed to be ocular witness to the incident, his evidence can be rejected for more than one reason. Firstly, he would acknowledge about he having reached at the place of occurrence after five minutes of assault on his father, and secondly, though the happens to be none else but son of Ganga Das. It was most unlikely that had he been there in the company of his father, his name would not have transpired in the fardbeyan of his father. 7. Reiterating his earliest version Ganga Sah, PW 5, stated that while he was returning from Chanpatiya market with sale proceeds of banana, he was intercepted by appellants near Ramjanki orchard when he identified appellants in moon-lit night, who thrashed him on the ground pursuant to which while Allauddin Mian displayed his fire arm, Bhukhal Das dealt successive blows with knife on his back abdominal region and also on head, as a result of which his intestine had bulged out. He was carried to Government Hospital where his statement was recorded after twelve days when he had regained consciousness. 8. Now the positive finding recorded by Dr. Ranveer Singh, PW 8, can be noticed who abdominal wall lower part 1/2" in diameter x cavity deep, intestine, and omentum were coming out of it. He was carried to Government Hospital where his statement was recorded after twelve days when he had regained consciousness. 8. Now the positive finding recorded by Dr. Ranveer Singh, PW 8, can be noticed who abdominal wall lower part 1/2" in diameter x cavity deep, intestine, and omentum were coming out of it. The above injury in estimation of the doctor was caused by sharp cutting weapon and was dangerous to life in nature. 9. Though Prasuram Singh, Sub-Inspector of Police, PW 7, did not record Jardbeyan of Ganga Sah, he stated to have received the same from Govind Gupta, Sub- Inspector of Police who had recorded it. He stated to have taken up investigation of the case pursuant to which he took steps for collecting evidences and for apprehension of the assailants. He did not find either marks of violence or blood at the place of occurrence. The final touch of investigation was given by Arjun Singh Yadav, PW 6, who after taking over charge of the case apprehended Allauddin Mian and laid charge- sheet before the Court showing Bhukhal Das absconder. This is all the evidence that has been adduced on behalf of the State. 10. Contentions are raised that though occurrence took place on 16th October, 1994, it was not before 28th October, 1994 that statement of Ganga Sah was recorded by police, and for such belated prosecution, there had been no plausible explanation, which makes the prosecution case unworthy of credence and merits rejection on this score alone. However, narration made by the injured cannot be lost sight of that he regained consciousness in the hospital during treatment after about 12 days of the incident, and if that be taken into consideration, there seems to be good excuse for belated statement of the injured which was recorded no where but in the hospital on 28th October, 1994. 11. While referring to the objective finding recorded by Police Officer, learned counsel would urge that the prosecution is also guilty of introducing distorted version about place of occurrence, as while in the Jardbeyan the injured alleges to have sustained injuries near orchard of Ram Janki, the Police Officer found PO to be a banswari. 11. While referring to the objective finding recorded by Police Officer, learned counsel would urge that the prosecution is also guilty of introducing distorted version about place of occurrence, as while in the Jardbeyan the injured alleges to have sustained injuries near orchard of Ram Janki, the Police Officer found PO to be a banswari. However, from evidence of both injured and also the Investigating Officer it would appear that the Place of Occurrence was at some distance, ,north-east to Chanpatiya market and hence there has been no variation in evidence of both witnesses as to the place of occurrence. 12. Yet it is urged that contrary to accusation attributed to the assailant about he having dealt successive blows on Ganga Sah, the doctor had found only one injury on the abdominal region, and that assumes significant to lead to conclusion that the witnesses had not made coherent statement also about the manner of occurrence. True it is that contrary to assertion made by the injured and also his son about Ganga Sah having received injuries on several places on his person, the doctor found only one injury in the abdominal region, but for that variation, prosecution case cannot be rejected in view of corresponding finding of the doctor about there being sharp cut on anterior abdominal wall of the injured. 13. However, one disturbing feature of the prosecution case which came to my notice is that though in Jardbeyan of Ganha Sah, it was Allauddin Mian who had been saddled with accusation of relieving him of his money, in his evidence, these accusations were attributed to Bhukhal Das and similar had been the evidence of Nagendra Sah, PW 4, the son of the injured. This fact cannot be lost sight of that both the appellants suffered conviction under Section 392 of the Indian Penal Code and one of them under Section 397 of the Indian Penal Code for having caused injured to Ganga Sah in course of commission of robbery, and if narrations made by both witnesses were given credence, which admittedly runs counter to the earliest version of Ganga Sah, mischief attributed to the appellants did not fall within the four corners of Section 392 or 397 of the Indian Penal Code. To repeat it again, if element of extortion or relieving the victim, vanishes, the accusation attributed to the appellants would not fall either within Section 392 or 397 of the Indian Penal Code. To me it appears that it was a simple case of assault on the injured by Bhukhal Das with complicity of other appellant Allauddin Mian also. I am not oblivious that the appellants have not been charged either under Section 326 or 326/34 of the Indian Penal Code. 14. However, regard being had to the nature of accusations attributed to the appellants and the evidences that were led at trial, which were tested by the defence during cross-examination, the case of appellant Bhukhal Das squarely falls within the mischief of Section 326 of the Indian Penal Code. Though Allauddin Mian was not suggested to be the assailant of the injured, he too was vicariously liable to the accusation attributed to the assailant, and that makes him answerable under Section 326/34 of the Indian Penal Code other contentions that were raised at bar was that as occurrence took place in the year 1994, the appellants had suffered mental trauma of protracted prosecution for about nine years, and that apart, while Bhukhal Das has remained in custody during the period of investigation, the trial and post conviction period for about four years and eight months, other appellant Allauddin Mian during these periods has remained in custody for about sixteen months. 15. In the circumstances, while appellants are sentenced to the period already undergone by them in custody, they are sentenced to pay fine of Rs. 500/- (five hundred) each also which shall be payable to the injured after realisation. The fine to be injured after realisation. The fine to be deposited with the Court below within two months of the production/receipt of this order and with this modification, the appeal is dismissed. Appeal dismissed with modification.