JUDGMENT Hon’ble Mrs. Poonam Srivastav, J.—Appeal in respect of appellant Nos. 1 and 2 stands abated vide order dated 1.2.2007. Appeal in respect of appellant No. 3 also stood abated on 5.10.2009 after receipt of report of Chief Judicial Magistrate, Etah. 2. The instant appeal was preferred against judgment and order dated 9.12.1980 passed by IIIrd Additional Sessions Judge, Etah, in Session Trial No. 414 of 1978 whereby appellants were convicted and sentenced to undergo one year R.I. under Section 147, I.P.C., six months R.I. under Section 323 read with Section 149, I.P.C. and four years R.I. under Section 307 read with Section 149, I.P.C. All the sentences were directed to run concurrently. 3. The occurrence is alleged to have taken place on 1.8.1977 at 10:00 a.m. in village Nagla Tulsi, hamlet Jakha, Police Station Amapur, District Etah. First information report was lodged by Komal, PW-1 at Police Station Amapur, District Etah, on the same day at 13:15 Hours. There are two injured namely Komal PW-1 and Sita Ram PW-2. All the appellants who preferred this appeal, were named in the first information report. 4. Allegation in the first information report is that on the date and time of occurrence i.e. 1.8.1977, while two injured PW-1 and PW-2 were in their huts, accused Bhup Singh was seen coming on a fast pace through the standing crops of their field with his two buffaloes towards the south. First informant protested that such a fast speed would damage their crop but this caused annoyance to accused Bhup Singh, who retorted that he has always done so previously, therefore, he should not be stopped in future as well. Accused Bhup Singh extended threat and went back to his house to call his kith and kin including all the accused, who came to their hut at about 10:00 a.m. armed with Lathi. Accused Bhup Singh and Munshi Singh beat Sita Ram. Assault of Bhup Singh caused fracture of his ribs. On alarm raised by first informant and his brother, witnesses Netra Pal, Yadram and Ram Chandra came to their rescue and besieged the accused, who ran away. First information report Ex.Ka-1 was dictated by first informant PW-1 at Police Station Amapur, District Etah. 5. The injured were medically examined by Dr. Ashok Kumar PW-4, at Primary Health Centre, Amapur, Etah, on the same day in the afternoon. First information report Ex.Ka-1 was dictated by first informant PW-1 at Police Station Amapur, District Etah. 5. The injured were medically examined by Dr. Ashok Kumar PW-4, at Primary Health Centre, Amapur, Etah, on the same day in the afternoon. He found following injuries on persons of injured, which are detailed below : Komal Singh Ext. Ka-4 : (1) Lacerated wound 2 cm x 1/4 cm x muscle deep, bleeding situated over left side of forehead, 1cm above upper orbital margin of left eye. (2) An abrasion 3 x 1/2 cm situated on left shoulder joint. (3) Tenderness over left side of back, no obvious injury was seen. Sita Ram Ext. Ka-5: (1) An abrasion size 1/2 x 1/2 cm over base of left hands thumb dorsal aspect. (2) Bruise- red in colour, 7 cm x 2 cm with diffused swelling around the bruise, situated over right side of back, 6 cm downwards and away from inf. angle of left scapula over swelling, crepites is felt. Rib appears to be fractured, for confirmation X-ray chest was advised. (3) Diffuse swelling over left leg, situated over calf muscles of left leg, tenderness was present. No open injury seen. 6. In the opinion of the doctor, injuries were fresh and within 1/4 day. Injuries had been caused by some blunt weapon. All injuries were simple except injury No. 2 on the person of Sita Ram, which was grievous as well as dangerous. Upon the said injury being x-rayed, ribs as marked in X-ray plate Ext.1, were found to be fractured by Dr. Daya Shanker PW-5 and reported and supported this evidence vide Ext. Ka-6, dated August 2, 1977. 7. Submission on behalf of appellants is that injuries according to the doctor, do not appear to be of such a nature, which could have caused death to the injured, therefore, conviction under Section 307 I.PC. is uncalled for. 8. Next submission is that other witnesses who are alleged to have reached place of occurrence on hearing alarm, have not been examined, therefore, prosecution story on the face of it, does not stand proved for the reason that independent witnesses have been withheld. Admittedly, two witnesses who are inimical, are two brothers, therefore, conviction under Section 307, I.P.C is uncalled for. There is no intention on the part of the appellants whatsoever to cause death to the injured, besides false implication is also pleaded. Admittedly, two witnesses who are inimical, are two brothers, therefore, conviction under Section 307, I.P.C is uncalled for. There is no intention on the part of the appellants whatsoever to cause death to the injured, besides false implication is also pleaded. 9. Learned A.G.A. has disputed each and every argument advanced on behalf of appellants and submitted that on perusal of statement of the doctor, it transpires that he has clearly admitted that injuries could have proved to be fatal. Injuries were admittedly fracture of ribs, therefore, it cannot be said that no internal damage could have been caused. Injured witnesses who admittedly received injuries on the date and time of occurrence alleged are the most probable witness. Conviction may be maintained. 10. After hearing counsels for respective parties at length, going through statements as well as documentary evidence on record, I am in agreement with submission of appellants’ counsel that injuries were not such in nature, which could have proved to be fatal. Admittedly, intention was not to kill the injured, therefore, conviction under Section 307 I.P.C. is uncalled for. However, it cannot be disputed that it is a broad day light occurrence and injuries were caused on person of prosecution witnesses, who came forward and deposed in witness box and proved their case as well as first information report. The doctor has also proved injuries. Therefore, I do not think that appellants are entitled for a clear acquittal in this case. The prosecution has been able to establish guilt of the accused and conviction by the learned Sessions Judge is sustainable. 11. However, conviction under Section 307, I.P.C. is not proper. Therefore, judgment and order of conviction is liable to be altered. Appellants, who are still alive, are entitled for an order of conviction under Section 324/149, 147, I.P.C. This will suffice and meet the ends of justice. 12. It is also brought to my notice that appellants have already remained in jail for almost eight months. I consider this period to be sufficient. However, additional fine is imposed on each of the appellants to a tune of Rs. 1000/-. Fine of Rs. 1000/- each is liable to be deposited within a period of three months from today. In the event of default in payment of fine, appellants shall undergo two months further imprisonment. I consider this period to be sufficient. However, additional fine is imposed on each of the appellants to a tune of Rs. 1000/-. Fine of Rs. 1000/- each is liable to be deposited within a period of three months from today. In the event of default in payment of fine, appellants shall undergo two months further imprisonment. Conviction under Section 307, I.P.C. is altered into under Section 324/149, I.P.C. The judgment and order dated 9.12.1980 passed by IIIrd Additional Sessions Judge, Etah, is set at naught. The instant appeal is partly allowed. ————