JUDGMENT Narendra Nath Tiwari, J. 1. All the appellants were charged for having committed offences of wrongfully restraining insulting and causing injuries to the informant Shahdeo Sharma and his sons in furtherance of common intention. They were tried and on conclusion, are convicted and sentenced under Section 323 IPC to undergo one year rigorous imprisonment, two years rigorous imprisonment under Section 504 IPC, one month rigorous imprisonment under Section 341 IPC, three years rigorous imprisonment under Section 324 IPC, five years rigorous imprisonment under Section 325/34 IPC and to pay fine of Rs. 5000/- each and in default to undergo simple imprisonment for one year. 2. The prosecution case, in short, is that on 7.9.2000, while the informants son Moti Sharma had gone to take bath in the river Ajay, he was assaulted by appellant No. 2 with fists and slaps when the informant went to the house of the appellant No. 2 to enquire about the same, he and his sons were assaulted by the appellants. Appellant No. 1 along with others armed with rod and lathi assaulted the informant; the appellant No. 1 allegedly gave iron rod blow, causing injuries on the scalp of the informant; appellant No. 2 assaulted the informant with lathi on his right palm, when the informants son Hiralal Sharma wanted to rescue the informant, he was also assaulted by appellant No. 3 with lathi on his right and left shoulder causing injuries. 3. The prosecution altogether examined eight witnesses. P.W. 1, Mahadeo Mistri, P.W. 2, Taleshwar Mistri, P.W. 3, Ishwar Lal Mistri, P.W. 4, Ranjit Mistri are said to be the independent witnesses. They did not support the prosecution case and were declared hostile. P.W. 5, Hira Lal Sharma is the son of the informant. P.W. 6, Shahdeo Sharma is the informant himself. P.W. 7, Nitya Nand Singh is the Investigating Officer and P.W. 8 is the doctor who examined the injuries on the person of the informant and other victim. 4. Learned trial court had also framed charge under Section 307 IPC but it appears that in absence of any ingredient under Section 307 IPC, the court below did not enter into any discussion and finding regarding the said charge. No grievance is made before this Court to that regard as well. 5. Mr. 4. Learned trial court had also framed charge under Section 307 IPC but it appears that in absence of any ingredient under Section 307 IPC, the court below did not enter into any discussion and finding regarding the said charge. No grievance is made before this Court to that regard as well. 5. Mr. S.K. Jha, learned Counsel appearing on behalf of the appellants, assailed the appellants conviction and sentence on various grounds. It has been submitted that the impugned judgment/ order is based on the testimony of P.Ws. 5 and 6 who are highly interested witnesses. There is no evidence of any independent witness to corroborate and/or prove the prosecution version. It has been submitted that the occurrence took place on 7.9.2000 but the F.I.R. was forwarded to the learned Chief Judicial Magistrate after delay of about 48:00 hours on 9.9.2000. There is no explanation for such delay in forwarding the FIR to the court below, which creates serious suspicion and doubts on the prosecution version. It has been submitted that even P.Ws. 5 and 6 were highly interested witnesses, they have given contradictory statements and there is no corroborative evidence to safely rely on the testimony of the said witnesses. P.W. 5, who claimed to be the eye witness in Paragraph-4 of the deposition, stated that when he arrived at the place of occurrence, he saw his father lying on the ground which goes to show that he did not witness the alleged assault on his father. Learned Counsel submitted that the injury report does not support the prosecution version. Only simple injury has been found on the upper arm and there is no grievous injury according to the evidence of Doctor. No instrument or weapons have been seized or produced before the court below, even the place of occurrence has not been established. P.W. 7, the Investigating Officer, visited the alleged place of occurrence but he did not find any blood stain or any incriminating material, which also belies the prosecution version. He further submitted that though the prosecution failed to prove the required ingredients of Sections 504, 324 and 325 IPC, yet learned court below has mechanically convicted and sentenced the appellants under the said Sections of Indian Penal Code. There is no cogent material for upholding the conviction and sentence against the appellants and the same are liable to be set aside. 6. There is no cogent material for upholding the conviction and sentence against the appellants and the same are liable to be set aside. 6. Learned A.P.P., on the other hand, supported the impugned judgment and order of leaned court below and submitted that learned court below has considered all the evidences including the evidences of P.Ws. 5, 6, 7 and 8 and has come to the finding on the basis of due appreciation thereof. There is detail discussion of the evidences by the court below and there is no basis to hold that the conviction and sentence is based on non-consideration of materials on record. He further submitted that though there are minor contradictions in the evidences of P.Ws., the prosecution has been able to establish the charges against the appellants. 7. On perusal of the evidences on record including the statements of P.Ws. 5, 6 and 7, nothing appears on record to support the prosecution charges against the appellants under Sections 504, 324 and 325 IPC. The prosecution has failed to produce any instrument/weapon by means of which the alleged injuries have been caused on the informant and P.W. 5. In order to establish charge under Section 324 IPC, the prosecution has to prove assault by means of any instrument for sharp cutting or any instrument which used as weapon to cause death etc. Neither the prosecution version nor the injury report and the evidence of the doctor P.W. 8 go to prove the charges either under Section 324 or 325 IPC. According to the doctor P.W. 8, the injuries on upper arms and on scalp were both simple in nature. A person cannot be held guilty of voluntary causing grievous hurt under Section 325 or causing hurt under Section 324 if the hurt is found simple. Similarly, there is nothing on record to establish that the accused appellants had intentionally assaulted and gave provocation to the informant or to P.W. 5 knowingly to cause him to break the public peace or to commit any other offence so as to prove the charge under Section 504 IPC against the appellants. However, from the evidences of P.Ws. 5, 6 and 7 read with the evidence of P.W. 8 the charges under Sections 323 and 341 IPC stand proved against the accused appellants. However, from the evidences of P.Ws. 5, 6 and 7 read with the evidence of P.W. 8 the charges under Sections 323 and 341 IPC stand proved against the accused appellants. Learned trial court without giving anxious consideration on the materials on record/ has erroneously convicted the appellants also under Sections 504, 324 and 325 IPC. Learned court below has also failed to consider the provisions of Section 360 and 361 Cr.P.C. while passing the order of sentence against them under Sections 323, 341/34 IPC. On thorough consideration of evidences and materials on record, I find that the prosecution failed to prove charges under Sections 504, 324 and 325/34 IPC against the accused appellants. However, as aforesaid, prosecution has been able to prove the charges under Sections 323, and 341/34 IPC against the accused appellants. 8. Considering the above, the appellants are acquitted of the charges under Sections 504, 324 and 325 IPC and their conviction and sentence under the said sections are set aside. Since the charges under Section 323, 341/34 IPC have been proved by the prosecution beyond reasonable doubts the appellants conviction under the said sections are maintained. However, regard being had to the character and antecedent of the appellants and the circumstances in which the offence was committed and other circumstances appearing on record instead of sentencing them to suffer imprisonment, the appellants are directed to be released on probation of good conduct, on their furnishing a bond of Rs. 5000/- with two sureties for a period of one year, for keeping the peace and good behavour. This appeal is thus partly allowed in the above terms and the judgment of conviction and order of sentence are modified to the extent indicated above.