ORDER Amareshwar Sahay, J. 1. All the three appeals arise out of the same impugned judgment and as such, they were taken up together and are being disposed of by this common judgment. 2. The three appellants namely Ganesh Chandra Mandal, Ram Gopal Goenka and Kamal Kishore Swarankar and one other accused namely Mahavir Narmolia (since dead, who died during the pendency of the trial) were charged for the offence under Section 307/34 of the Indian Penal Code for assaulting Sanjay Chaudhary, the informant (PW 5) with such intention and knowledge that the act caused by them would cause death of Sanjay Chaudhary and they committed the said offence in furtherance of common intention for voluntarily causing hurt to Sanjay Chaudhary by means of lathi. heated rod, burning cigarettes and heated chholni 3. Learning 1st Additional Sessions Judge, Dumka, by the impugned judgment dated 17.1.1998, convicted all the three appellants for the offence under Sections 307/34 and 324 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for a period of 7 (seven) years each for the offence under Section 307/34, IPC. No separate sentence was passed for the offence under Section 324 of the Indian Penal Code. 4. The prosecution case in short is that on 10.1.1985, at about 9.00 a.m., the informant Sanjay Kumar Chaudhary (PW 5) arrived at Variety Store where he was an employee and the owner of which was the accused Mahavir Narmolia (since dead). On the direction of one of the staff of the Variety Store, the informant went to the house of the owner of the shop Mahavir Narmolia (since dead) to deliver Kerosene Oil and after return from there, it is said that the other staff of the Variety Store namely Pappu Meharia, Sankar, Ravi, Pradip, Ramesh and the owner Mahavir Narmolia (since dead) alleged that the informant had committed theft of Rs. 5,000/- from the shop. The informant denied the allegations and thereafter, it is said that the father of the informant namely Ram Gopal Chaudhary (PW 3) was called by the owner of the shop and he was told about the aforesaid theft by his son. 5,000/- from the shop. The informant denied the allegations and thereafter, it is said that the father of the informant namely Ram Gopal Chaudhary (PW 3) was called by the owner of the shop and he was told about the aforesaid theft by his son. At this, the informant's father namely Ram Gopal Chaudhary stated that there were so many staffs in the Variety Store and since nobody has seen his son committing the theft and as such, why was only his son being charged for the said theft. Ram Gopal, the father of the appellant asked to make query from all the staff of the Store also and thereafter, he went back. It is said that thereafter, the owner of the shop called Kamal Kishore Swarankar (appellant of Criminal Appeal No. 41 of 1998) as asked him to get confession from the informant regarding theft and he also told him that he is free to do whatever he likes. Thereafter, the said Kamal Kishore Swarankar (appellant) assaulted the informant by means of lathi and caused burn injuries on his chest with lighted cigarettes. Therefore, the informant was brought to a tea stall of Dhirendra Chandra (PW 1); there the appellant Kamal Kishore Swarankar caused burn injuries with a heated chholni on the cheek of the informant. Thereafter, the three appellants brought the informant to the Godown of Variety Store and assaulted him with heated iron rod, legs and fists due to which, the informant became unconscious and then the father of the informant was called and was asked to take his son and threat was given him that if the matter would be reported to the Police, his entire family will be burnt. However, on the next morning i.e. 11.1.1985, the FIR was lodged by the informant. 5. The informant was examined by Dr. Indrakant Mishra (PW 6), who found the following injuries on the person of the injured Sanjay Kumar Chaudhary (PW 5) :- (i) Abrasion 2" x 1/2" over left cheek; (ii) Abrasion 1/2" x 1/4" over left side of nasal bridge near medical cahthus of eye; (iii) Bruise 5" x 3" with echymosis over left upper arm near shoulder joint; (iv) Multiple circular burn injuries (1/4" in diameter) and liner burn injuries above 2" x 1/4" over the chest. No. of circular injuries six and No. of linear injuries were four; (v) Multiple bruises 3" x 1/2" over right upper arm near shoulder joint. No. of bruises were 5; (vi) Multiple bruises over back including left scapular region above 4" x 1/4" in size. Its No. was six. (vii) Multiple bruises (four in No.) 3" x 1/2" over right thigh; (viii) Multiple bruises 2-1/2" x 1/2" (five in No.) over left thigh. (ix) Complaint of headache and bodyache. According to the doctor, all the injuries found on the person of the informant were simple in nature and were caused by hard and blunt substances except the injury No. 4 which was caused by hot rounded substances like blunt kalchhul and lighted cigarettes. The doctor has specifically said that the injuries found on the cheek of the informant could not have been caused by the chholni or kalchhul He did not find any blister. 6. In order to establish charges, altogether, nine witnesses were examined by the prosecution out of whom, FWs 1, 2 and 4 were declared hostile. The PW 7 is a formal witness and PW 9 is the Judicial Magistrate who had recorded the statements of PWs 1, 2 and 4 under Section 164, Cr PC. PW 6 is the doctor and PW 8 is the Investigating Officer. PW 3 Ram Gopal Chaudhary is the father of the informant whereas, PW 5 is the informant himself. Admittedly, PW 3 the father of the informant was not an eye-witness to the occurrence of assault on the informant. So far as the question of assault by the appellants on the informant is concerned, the only evidence available is of PW 5, the injured and of PW 6, the doctor who examined the injuries on the person of the informant and PW 8 the Investigating Officer who found the injuries on the person of the informant and got it examined by the doctor. 7. PW 3 Ram Gopal Chaudhary, the father of the informant, in paragraph 5 of the evidence, clearly stated that he did not see any person assaulting his son. 7. PW 3 Ram Gopal Chaudhary, the father of the informant, in paragraph 5 of the evidence, clearly stated that he did not see any person assaulting his son. So far as the evidence of PW 5, the informant is concerned, he has stated that the owner of the shop Mahavir Narmolia (since dead) called Kamal Swarankar (appellant) and told that Sanjay had committed theft and therefore, take out his confession and do whatever he likes and thereafter, Kamal Swarankar started beating him with danda and fist and Gopal Goenka also started beating with danda and fist. It is further stated that Kamal Swarankar caused injuries on his cheek by means of hot kalchhul He also stated in his evidence that he was assaulted by means of danda which was used for rolling clothes (KAPRE KE THAN WALA). From the evidence of Dr. Indrakant Mishra (PW 6), it appears that all the injuries found on the person of the injured were simple in nature and were caused by hard and blunt substance. So far injury No. (iv) is concerned, which was found on the chest, the same was found to be burn injury and may be caused by burning cigarettes, but that cannot be said to be dangerous to life. From the evidence of PWs 3 and 5, there does not appear the intention of the appellants were to kill the informant or that they assaulted the informant with intention to kill him. 8. Therefore, in my view, the conviction of the appellants for the offence under Section 307read with Section 34 of the Indian Penal Code was absolutely unsustainable. No doubt the prosecution has been able to establish that these three appellants assaulted by means of lathi and fist etc. and also causing some burn injuries with cigarettes, causing several injuries in his person. At best, that would make the appellants liable for the offence under Section 324 of the Indian Penal Code for which, they have already been convicted by the trial Court but no sentence was passed by the trial Court for the said offence. Accordingly, I hold that the conviction of the appellants for the offence under Section 307/34 of the Indian Penal Code was bad in law and therefore, the same is hereby set aside. Accordingly, I hold that the conviction of the appellants for the offence under Section 307/34 of the Indian Penal Code was bad in law and therefore, the same is hereby set aside. So far conviction of the appellants for the offence under Section 324 of the Indian Penal Code is concerned, I hold that the Court rightly convicted the appellants for the said offence, therefore, their conviction for the offence under Section 324, IPC is hereby affirmed. 9. It is stated that the appellant Ganesh Chandra Mandal (the appellant in Criminal Appeal No. 29 of 1998) remained in custody during trial for a period of one month and appellants Ram Gopal Goenka (appellant in Criminal Appeal No. 30 of 1998) remained In custody during trial for a period of one year and appellant Kamal Klshore Swarankar (appellant in Criminal Appeal No. 41 of 1998) has also remained in custody for a period of one month. It further appears that the case is of the year 1985 and therefore, it will not be expedient in the interest of justice to send these appellants to jail again for the offence under Section 324 of the Indian Penal Code. Accordingly, for the offence under Section 324, IPC, the appellants are sentenced to the period already undergone by them and to pay fine of Rs. 2,500/- each, in default to undergo rigorous imprisonment for a period of six months each. If the amount of fine is realised, the same would be paid to the informant. Accordingly, the three Criminal Appeals are partly allowed as indicated above. The appellants are on bail. They are discharged from the liabilities of bail bounds.