JUDGMENT : P.K. Tripathy, J. - Judgment and order of conviction passed against the two Appellants by learned Additional Sessions Judge, Paralakhemundi on 30.09.1989 in Sessions Trial Case No. 18/94 of 1989 arising out of G.R. Case No. 282 of 1988 of the Court of S.D.J.M., Paralakhemundi is under challenge. 2. Twenty one persons were charged on the allegation of committing assault on Narottam Jena (hereinafter referred to as the 'deceased'). On the basis of such allegation, charge was framed against them under Sections 147/148/304/149, I.P.C. 3. According to the case of the prosecution, deceased was a carpenter. Accused Sobhabana Pasupu Reddi and accused Abrahim Lima came to the village of the deceased on 01.11.1988 and on the pretext of some carpentry work took him to their village, i.e., Lanadhati. Budu Koroda (P.W.3) also accompanied them as a co-worker of the deceased. After they reached village Landahati, accused Sobhabana took the deceased to the backside of his house on the pretext of entrustment of carpentry work and there all the accused persons (21 in number) forming an unlawful assembly being armed with lathis attacked and assaulted the deceased. P.W.3 saw the part of assault and when the members of unlawful assembly wanted to catch-hold of him, he could make his escape good so as to return to his village and to inform the matter to Premika Jena (P.W.1), i.e., the widow of the deceased. P.W.1 together with the sister of the deceased (P.W.4) and others rushed to the occurrence village and found the deceased in an injured condition and brought him to their village. Due to poverty, P.W.1 could not undertake treatment of the deceased. In the meantime the gentlemen from the village of the deceased went and approached the accused persons for an amicable settlement and to provide cost for treatment of the deceased. While admitting about the occurrence of assault, Appellants disclosed that three years back deceased had cut and removed a teak tree (wood) and therefore he was taught a lesson, and there is no question of payment of cost of treatment. Because of such assault, deceased died on 12.11.1988. On his death, F.I.R. was lodged at the police station and the matter was investigated by the police. 4. To substantiate the charge, prosecution examined as many as 12 witnesses. Because of such assault, deceased died on 12.11.1988. On his death, F.I.R. was lodged at the police station and the matter was investigated by the police. 4. To substantiate the charge, prosecution examined as many as 12 witnesses. Out of them P.W.3 is the sole eye-witness to the occurrence, whereas P.W. 10 is the doctor who conducted autopsy on the dead body of the deceased, and P.Ws. 11 and 12 are the two Investigating Officers. Rest of the witnesses are co-villagers of the deceased, who made statements relating to extra judicial confession of the accused persons. 5. Learned Addl. Sessions Judge, taking note of the evidence of the witnesses and the denial plea of the accused persons but without determining if the death was homicidal or not, acquitted all the accused persons except the Appellants on the ground that they were the two persons who were named by all the witnesses. Accordingly, learned Addl. Sessions Judge convicted the Appellants for the offences under Sections 304/149, I.P.C. and acquitted all the accused persons from the rest of the charges. On perusal of the evidence of P.W.10, it is found that he noticed compound fractures of the bones of both the arms below the elbow joint up to the meta carpel. He opined that the cause of death might be due to heavy loss of blood and trauma because of the aforesaid injuries. The aforesaid evidence ipso facto does not prove a case of homicidal death, in as much as the death occurred after a gap of twelve days and because of no treatment at all. Under such circumstance the provision in Section 299, Explanation-2, Code of Criminal Procedure would be attracted so as to compute a case of culpable homicide. 6. Even if the charge for the offence u/s 304, I.P.C. fails, then also if the occurrence of assault is proved, Appellants are guilty of any other offence. At this juncture it is appropriate to repeat that on 04.01.2008 (today) order was passed to abate the appeal so far as Appellant No. 2 Abrahim Lima is concerned, because he has died in the meantime. 7. Learned Counsel for the Appellant argues that the evidence of P.W.3 is not sufficient to prove the assault on the deceased by accused Sobhabana Reddi alone. 7. Learned Counsel for the Appellant argues that the evidence of P.W.3 is not sufficient to prove the assault on the deceased by accused Sobhabana Reddi alone. His logic is that when P.W. 3 has stated in his evidence about assault by several persons (i.e., all the accused persons who faced the trial) and when for one reason or other the other accused persons have been acquitted, therefore, accused Sobhabana Reddi cannot alone be convicted for any offence whatsoever. Learned Standing Counsel on the other hand while reporting about no appeal having been preferred against the order of acquittal of the rest of the accused persons, argued that when specific evidence is there to prove the accusation of assault against accused Sobhabana Reddi, therefore he cannot claim any benefit on the ground of acquittal of the co-accused persons. 8. Indeed, the evidence of P.W.3, the solitary eye-witness to the occurrence, has remained unshaken regarding allegation of assault on the deceased not only by accused Sobhabana but also by other accused persons. For reasons best known to the prosecution, they did not challenge the order of acquittal of the co-accused of the Appellants. But certainly that cannot be a ground to exhonerate the Appellant from the charge in as much as there cannot be perpetuity in illegality. Undoubtedly, evidence on record prove an occurrence of assault against all the accused persons and that is proved from the crust injury on both the hands of the deceased, in as much as according to the evidence of P.W.3 each of them were assaulting him by means of lathi. The trial Court, for reasons best known to it, granted the benefit of acquittal to the co-accused persons improperly and illegally. Since the officer concerned has retired long since, therefore this Court refrains from making any further comment. Apart from that, lapse of time in between is a relevant factor not to ask for initiation of suo motu revision against the order of acquittal. Notwithstanding that, once there is clear and categorical evidence to prove allegation of assault against the accused Sobhabana Reddi, he cannot escape from the punishment for the offence committed by him. Thus, the argument advanced by Appellant Sobhabana is rejected. 9. According to the evidence of P.W.10, compound fractures were noticed on both the hands below the elbow joints. Notwithstanding that, once there is clear and categorical evidence to prove allegation of assault against the accused Sobhabana Reddi, he cannot escape from the punishment for the offence committed by him. Thus, the argument advanced by Appellant Sobhabana is rejected. 9. According to the evidence of P.W.10, compound fractures were noticed on both the hands below the elbow joints. According to the evidence of P.W.3, all the accused persons were dealing blows by lathi. Therefore, there is no specific allegation against accused Sobhabana Reddi for causing the injuries leading to compound fractures of both the hands. It is needless to say that a whimsical investigation was followed by a casual trial, both at the hands of the prosecution and the trial Court. Therefore, taking into consideration the evidence on record and granting the benefit as much it is available to accused Sobhabana, still he is found guilty of causing injury on the hands of the deceased by use of lathi, and under such circumstance he is found guilty of the offence u/s 324, I.P.C. in the absence of any specific evidence that he caused grievous hurt. 10. Accordingly, the order of conviction of accused Sobhabana Pasupu Reddi for the offence u/s 304, Part-II of I.P.C. and the sentence of R.I. for five years is set aside. He is found guilty of the offence u/s 324, I.P.C. Keeping in view the lapse of time in between and the penal provision or (Section 324, I.P.C.) which provides for substantive sentence and/or fine, this Court imposes sentence of payment of fine of Rs. 3,000/- (rupees three thousand) within a period of two months, failing which he is to undergo simple imprisonment for a period of one and half years. In the event the fine amount is realized, that be paid to P.W.1- Premika Jena, i.e., the widow of the deceased. The Criminal Appeal is accordingly allowed in part. Final Result : Allowed