M. C. JAIN, J. ( 1 ) FIVE persons namely, Mahesh, Manna, Virendra, Parashu Ram and Shankar were tried in sessions Trail No. 262 of 1976 before the II Additional Sessions Judge, Deoria and they came to be acquitted. The charges against Mahesh, Virendra, Parashu Ram and Shankar were of Section 147 and 307 read with Section 149 I. P. C. whereas accused respondent Manna was charged under sections 148 and 307 I. P. C. simpliciter. The incident took place on 19. 8. 1974 at about 8. 30 P. M. near Amar Jyoti Crossing, Police Station Kotwali, District Deoria and the F. I. R. was lodged the same night at 9. 30 P. M. by Dharamraj Singh, (PW 6) an eyewitness. Mahesh, Manna and virendra accused respondents are real brothers being sons of Radha Kishan, Parashu Ram and shankar are also real brothers being sons of Raghubir. Dharam Raj Singh and Ramagya sustained injuries in the incident. ( 2 ) PARASHU Ram died during the pendency of the appeal and the same abated respecting him on 28. 2. 2005. ( 3 ) SHORT listing, the facts are these: Dharam Raj Singh PW6 was the resident of village Bharauli, police Station Khukhundu, District Deoria. On 17. 8. 1974 the accused Parashu Ram and others had beaten up the wife and sister of one Dina, who used to run a tea stall in front of Amar Jyoti talkies in the town of Deoria Dharam Raj Singh was doing pairvy at the Police Station in respect of that incident after a report having been lodged by Dina. On account of such enmity, that very day when the informant was returning from Police Station Kotwali to his house, all the accused respondents along with others expressed their anger and annoyance against the informant and forbade him from doing pairvy for Dina. The informant refused to oblige them. The accused and their companions had then threatened the informant and had gone away. ( 4 ) ON the fateful day at about 8. 30 P. M. , the informant, Ramagya Chauhan, Ram Chhabila Misra, pradyumn Tiwari, Ramayan Shukla, Ram Lal Khatik and others were conversing near the crossing of Amar Jyoti Talkies where there was electric light. Some were taking betel leaves at the shop of Puranmasi. At that very time, the accused Parashu Ram and Mahesh were also taking betel leaves at that shop. Some were taking betel leaves at the shop of Puranmasi. At that very time, the accused Parashu Ram and Mahesh were also taking betel leaves at that shop. They asked the shopkeeper to give betel leaves to them first. The informant told that they would take the betel leaves first. Parashu Ram and Mahesh thundered on the informant that he was meddling in all the matters posing to be a big Neta (leader) and they would see to it that his Netagiri (leadership) was put to an end. The informant objected to it, saying that they were unnecessarily raising their tone. Mahesh retorted angrily and exhorted the accused Manna, Virendra and Shanker calling by their names. Mahesh and Parashu Ram rushed towards the informant to assault him. He tried to save himself. By that time, Manna, Virendra and Shanker also leapt up surrounding the informant and started assaulting him with kicks and fists. When the companions of the informant came to his rescue and tried to save him, Mahesh and Parashu Ram instigated their companions to kill the informant by means of a knife. Then the accused Manna assaulted the informant on his neck by means of a Gupti (a sharp edged weapon)but the informant warded off the blow by his left hand. Then the accused Manna attacked him by gupti second time and injured him at two places on his left hand. When the accused Manna attacked the informant third time, the latter turned his neck and the Gupti blow landed on his back just below the neck. When the witness Ramagya tried to save the informant, the accused manna attacked him too by Gupti and he was also injured thereby. In the meantime, constables ram Sanware Rai, Chandrika Tiwari and Vijai Prakash Tiwari also reached the scene of occurrence. They saw the informant and Ramagya being injured by the accused Manna and they also saved the life of the informant. Out of the assailants, Mahesh was arrested at the spot with the help of the companies of the informant and members of the public. The rest of their fled away. Both the injured bled profusely because of the injuries sustained by them. ( 5 ) AFTER the occurrence, the informant got a written report prepared about the occurrence by Ram chhabila Misra and took it to the Police Station. The arrested accused Mahesh was also taken there. The rest of their fled away. Both the injured bled profusely because of the injuries sustained by them. ( 5 ) AFTER the occurrence, the informant got a written report prepared about the occurrence by Ram chhabila Misra and took it to the Police Station. The arrested accused Mahesh was also taken there. The report was lodged and a case registered. The investigation was conducted as usual. ( 6 ) THE injuries of the informant Dharam Raj Singh PW 6 were examined on 19. 8. 1974 at 9 P. M. by Dr. Shyam Narain Barnwal PW 2. The following injuries were found on his person: 1. Penetrating wound 3/4" x 1/2" x 1 3/4" on right side back upper part just near midline. 2. Penetrating wound 1/2" x 2/10" x 1/2" on front of left forearm, upper part. 3. Lacerated wound 2" x 3/4" x muscle deep on left forearm upper part. All the injuries were kept under observation. Injuries No. 1 and 2 were caused by sharp edged weapon and injury No. 3 was caused by blunt object. All the injuries were fresh. ( 7 ) DHARAM Raj Singh was admitted in Surgical Ward of Civil Hospital. His X-ray had been taken under the supervision of Dr. J. P. Sharma PW 8. It was found that there was tenting of right dome diaphragm with atelactasis of right zone and shrinking of one or two lobules of lung. ( 8 ) THE same Doctor (Dr. Shyam Narain Barnwal PW 2) examined the injuries of the injured ramagya on 19. 8. 1974 at 9. 15 P. M. The following injury was found on his person: 1. Incised wound 1" x 2/10" x muscle deep on outer and upper part of right arm. The injury was simple and was caused by some sharp weapon. It was fresh. ( 9 ) THE prosecution in all examined 10 witnesses. One Amla Singh was examined as CW 1. Ramagya Chauhan PW 1, Ram Chhabila Misra PW 3, Ramayan Shukla PW 4, Dharam Raj singh PW 6, Pradyumn Tiwari PW 7 and Chandrika Tiwari PW 9 were examined as eyewitnesses and the rest were doctors and those related to the investigation of the case. Amla singh CW 1 was the witness of recovery of articles from the scene of occurrence and he was also an eyewitness of the occurrence. Amla singh CW 1 was the witness of recovery of articles from the scene of occurrence and he was also an eyewitness of the occurrence. ( 10 ) THE defence was of denial. Mahesh stated that at about 11 P. M. he was arrested from his house by a constable and falsely implicated in this case on account of enmity. The accused manna stated that the witnesses were Neta-type people always demanding subscriptions and when he refused to oblige them, in collusion with the police they got him falsely implicated. ( 11 ) NO evidence was adduced by the accused in defence. ( 12 ) THE trial Judge found fault with the prosecution case and the occurrence as claimed to have taken place. He, therefore, recorded acquittal. ( 13 ) WE have heard Miss N. A. Moonis, learned A. G. A. from the side of the State and Sri Satish trivedi, learned Sr. Advocate, assisted by S/s Siddharth Shukla, B. K. Tripathi and Imran Ullah from the side of the accused respondents. The record is before us which we have perused. ( 14 ) THE submission from the side of the State is that the trial judge committed error in ignoring the overwhelming prosecution evidence to bring home the guilt of the accused. It has been submitted that the eyewitnesses were most natural and they could not have been discarded. Further, the medical evidence was consistent with the ocular version. On the other hand, the learned counsel for respondents has tried to support the acquittal. ( 15 ) NEEDLESS to say, even when an offence involves a number of offenders, it is the duty of the court to separate the grain of acceptable truth from the chaff of exaggerations and improbabilities and to act accordingly to punish the guilty. The court cannot adopt a shortcut generalized approach to find fault with the prosecution evidence to justify acquittal as has been done by the trial judge in the present case. ( 16 ) IT is evident from the careful perusal of the evidence on record that there were six persons from the side of the prosecution, namely, Ramagya Chauhan (injured) PW 1, Ram Chhabila misra PW 3, Ramayan Shukla PW 4, Dharam Raj Singh PW 6, Pradyumn Tiwari PW 7 and Ram lal Khatik when the incident occurred. Out of them, five as marked above were examined as eyewitnesses. Out of them, five as marked above were examined as eyewitnesses. Two of them, namely, Dharam Raj Singh PW 6 and Ramagya Chauhan PW 1 were the injured of the felony. One Police constable Chandrika Tiwari PW 9 was also examined who had reached the spot. His version was that after taking dinner, he and constable Vijay Prakash tiwari had gone from Police Station Kotwali towards Amar Jyoti Cinema just for strolling and saw that accused Manna was assaulting Dharam Raj Singh and Ramagya with a Gupti. According to him, the accused Mahesh, Shanker and one another were also there. It was also stated by him that Ram Chhabila, Pradyumn Tiwari, Ram Lal Khatik and Ramayan Shukla were also there. Mahesh was allegedly apprehended there but the remaining accused managed to flee away. The name of this witness as also of constable Vijay Prakash Tiwari had been mentioned in the F. I. R. too. The incident occurred over a brief altercation between the two sides as to who was to take the betel leaves first. Dharam Raj Singh and Ramagya did sustain injuries details of which have been set out above. X-ray of Dharam Raj Singh taken under the supervisions of Dr. J. P. Sharma PW 8 revealed tenting of right dome of diaphragm with atelectasis of right upper zone. In his testimony Dr. J. P. Sharma PW 8 stated that one or two lobules of right lung were little shrunken. ( 17 ) ONE Amla Singh was also examined as CW 1 who had his shop of general merchandise nereby the place of incident. He deposed about the recovery of bloodstained earth from the spot by the Investigating Officer on 20. 8. 1974. He was present at the time of the incident also as he was closing his shop at that time. His version was that Dharam Raj and Ramagya were shouting aloud that Manna had run away after assaulting them. The police had arrested one of the persons present there and he later on learnt that he was Mahesh. ( 18 ) IT is further noted that Ram Chhabila Misra PW 3 and Ramayan Shukla PW 4 did not support the prosecution case. Ram Chhabila Misra PW 3 stated that he did not witness the incident himself. The police had arrested one of the persons present there and he later on learnt that he was Mahesh. ( 18 ) IT is further noted that Ram Chhabila Misra PW 3 and Ramayan Shukla PW 4 did not support the prosecution case. Ram Chhabila Misra PW 3 stated that he did not witness the incident himself. To make a dent in the prosecution case, he even went to the extent of saying that he had seen the two injured in the Hospital and the F. I. R. had also been scribed by him there at the instance of Dharamraj, Ramayan Shukla PW 4 denied his presence at the spot. According to him, he did not see the assailants, though he admitted that Dharam Raj and Ramagya had been assaulted. ( 19 ) THE fact is also there that the testimony of other eyewitnesses too is not consistent and uniform as to who (other than the accused Manna) was armed with what weapon. Ramagya chauhan PW 1 (injured) stated that Mahesh and Virendra had lathis whereas Parashu Ram and shanker were empty handed. Pradyumn Tiwari PW 7 deposed that none of the accused had lathi, nor was lathi used by any of the accused in assaulting Dharam Raj or Ramagya. Constable chandrika Tiwari PW 9 stated that Mahesh had no lathi or Danda. He did not see him wielding any lathi or Danda. ( 20 ) MAHESH was said to have been arrested at the spot and taken to the Police Station to be handed over there along with the F. I. R. , but there is no mention in the related G. D. that he had any lathi. Nor does the F. I. R. say that he was apprehended at the spot with lathi. Another important feature to be taken note of is that in the G. D. there is mention of the injuries found on the person of Mahesh, Strangely enough, there is no explanation from the side of the prosecution as to how did he receive injuries. It was not a case of the prosecution that Mahesh had been beaten up and injured at the time of his arrest. It was not a case of the prosecution that Mahesh had been beaten up and injured at the time of his arrest. ( 21 ) THE dissection of the prosecution evidence and the attending circumstances, as discussed above, clearly led to the conclusion that the evidence was not firm enough against the accused other than Manna to prove them to be guilty of any offence. Regard had to be had to this aspect of the matter that the incident occurred following a brief altercation between the two sides over the turn of taking betel leaves first. As per the prosecution case, there were six persons from its side including the two injured. The other side consisted of five persons including Manna and mahesh. The incident was not preplanned or premeditated. Mahesh, of course, was apprehended at the spot but no weapon was found with him. The possibility could not be ruled out that he being there with the other group was apprehended at the spot and even assaulted. His mere presence with the real assailant Manna and some others of his group would not render him liable unless he could be shown to be the member of unlawful assembly which allegedly consisted of five persons on the side of the accused. The prosecution cannot gain any point over the arrest of mahesh at the spot and of his having been taken to the Police Station at the time of the lodging of the F. I. R. ( 22 ) SO, the situation boiled down to his that the two groups entered into altercation at the spur of moment over the turn of taking of betel leaves at a betel shop. Manna got hot under the collar and assaulted Dharam Raj Singh and Ramagya with Gupti. It was his individual act and he alone is liable to be punished therefor. ( 23 ) LOOKING to the injuries of the two injured, it is found that the injury of Ramagya Chauhan (an incised wound) was simple, Of course, Dharam Raj Singh sustained three injuries-two penetrated wounds and one lacerated wound. Lacerated wound, too, could be sustained by him from the blunt portion of the Gupti wielded by Manna as stated by Dr. Shyam Narain Barnwal PW 2 who had examined his injuries. No doubt, one of his penetrated wounds was on vital part, i. e. , the right lung. Lacerated wound, too, could be sustained by him from the blunt portion of the Gupti wielded by Manna as stated by Dr. Shyam Narain Barnwal PW 2 who had examined his injuries. No doubt, one of his penetrated wounds was on vital part, i. e. , the right lung. No doubt, one of his penetrated wounds was on vital part, i. e. , the right lung. Dr. J. P. Sharma PW 8 stated that there was tenting of right dome diaphragm with atelectasis of right upper zone and shrinking of one or two lobules of right lung. Dharam Raj Singh stated before the court that owing to his injuries he remained in the hospital for treatment for 20-25 days. This part of his statement went unchallenged. The fact, however, is there that despite one of the injuries of dharam Raj being on vital part, there was no serious damage underneath. No second blow was repeated by Manna on any vital part. The incident, as we stated, occurred over insignificant issue of taking the betel leaves first without any premeditation. It was simply a clash of egos. There was no intention on the part of Manna to commit murder of the victim. The victim Dharam Raj singh, however, remained admitted in hospital for treatment for about 20-25 days. As per clause eighthly of Section 320 I. P. C. , a hurt is grievous which causes the sufferer to be during the space of twenty days in severe bodily pain or unable to follow his ordinary pursuits. Therefore, for causing simple injury to Ramagya by sharp edged weapon, the accused Manna committed an offence punishable under Section 323 and that of Section 326 I. P. C. for causing grievous injuries to Dharam Raj Singh by sharp edged weapon. ( 24 ) NOW comes the question of punishment. The incident took place nearly 31 years back on 19. 8. 1974. The assault was not pre-planned. It was simply a sequel of clash of egos. The accused respondent Manna was aged about 36 years on 22. 5. 1981 when his statement under Section 313 cr. P. C. was recorded. He was a petty thread merchant. He must be of nearly 60 years of age now. The entire facts and circumstances of the case have to be considered for determining just and proper punishment. The accused respondent Manna was aged about 36 years on 22. 5. 1981 when his statement under Section 313 cr. P. C. was recorded. He was a petty thread merchant. He must be of nearly 60 years of age now. The entire facts and circumstances of the case have to be considered for determining just and proper punishment. The record shown that the accused respondent Manna remained in jail for a total period of 53 days. Now sending him to jail would neither work as deterrent nor would be reformative in nature. In our opinion, the ends of justice would be met by sentencing him under Section 323 I. P. C. for the period already undergone and under Section 326 I. P. C. for the period of imprisonment already undergone and a fine of Rs. 10,000/ -. In default of payment of fine, he shall undergo rigorous imprisonment for two years. Out of the amount of fine, if realized, Rs. 5,000/- shall be paid as compensation to the victim Dharam Raj Singh PW 6. ( 25 ) IN the result, we partly allow this State Appeal. The acquittal in respect of accused respondents, Virendra, Shankar, Mahesh and Parashu Ram is affirmed but the acquittal of the accused respondent Manna is converted into conviction. He is held to be guilty for the offence under Sections 323 and 326 I. P. C. He is sentenced to imprisonment for the period already undergone under Section 323 I. P. C. and for the period of imprisonment already undergone and a fine of Rs. 10,000/- under Section 326 I. P. C. In default of payment of fine, he shall undergo rigorous imprisonment for two years. Out of the amount of fine, if realized, Rs. 5,000/- shall be paid as compensation to the victim Dharam Raj Singh. The fine is to be paid within two months from today. ( 26 ) ACCUSED respondent Manna is already on bail. The Chief Judicial Magistrate, Deoria shall ensure compliance of this judgment under intimation to this Court. ( 27 ) JUDGMENT be certified to the court below. . .