JUDGMENT (1) The appellants have preferred these appeals against the impugned judgment dated 10.8.1996 passed by the learned First Additional Sessions Judge, Raisen in S.T. Nos. 2/93 and 110/2000 by which appellant Brijesh has been convicted under Sections 2 148 and 324 of the IPC and sentenced to undergo RI for one year with fine of Rs.200/- and RI for two years with fine of Rs. 2,000/-respectively, with default stipulations and appellants Rajesh Baghel, Jivan Singh, Rakesh and Rajesh S/o Nandlal have been convicted under Sections 147 and 324/149 of the IPC and sentenced to undergo RI for six months with fine of Rs.100/- and RI for two years with fine of Rs.2,000/- respectively with default stipulations. (2) The aforesaid appeals arose out of the same judgment and order therefore they are being disposed of by this common judgment. Prosecution case in short is that on 1.8.1992 at about 4.00 p.m., when complainant Preetam Singh (PW1) was standing in front of the house of his uncle Halke, accused Brijesh, Jivan Singh, Rajesh S/o Nandlal, Rakesh S/o Maharajsingh came over there, Brijesh caught hold of his hair and other appellants/co-accused caught hold of him, dragged him up to the house of Ramswaroop (PW6) with an intention to kill him. When Ramswaroop intervened, the appellants/accused told him not to interfere in their matter. Appellant/accused Brijesh assaulted Preetam Singh (PW1) with a knife (Churi) and other appellants/accused beaten him by kicks and fists. Complainant was brought to the hospital by Biharilal (PW7) and Gopal Singh (PW4), where he lodged a report Ex.P/1. He was treated by Dr. Naveen Bhatia (PW10), who found an incised and penetrating 3 injury 11/2' x 1/2' on the lower part of abdomen and omentum is protruding out of wound, therefore, he immediately referred Preetam Singh(PW1) to the Hamidiya Hospital, Bhopal for further treatment. (3) After usual investigation, the appellants were charge sheeted. (4) Learned trial Court framed the charges against the appellants under Sections 147, 148 and 307 read with Section 149 of the Indian Penal Code. Appellants abjured the guilt and pleaded that they have been falsely implicated. On completion of trial and on appraisal of evidence on record, trial court acquitted the accused persons of the charges under Section 307/149 of IPC instead they have been convicted as mentioned herein above. Appellants abjured the guilt and pleaded that they have been falsely implicated. On completion of trial and on appraisal of evidence on record, trial court acquitted the accused persons of the charges under Section 307/149 of IPC instead they have been convicted as mentioned herein above. (5) Learned counsel for the appellants submitted that the incident took place on the spur of moment. There is no evidence on record to prove the fact that appellants/accused made unlawful assembly and then assaulted complainant Preetam Singh. He further submitted that from the evidence of complainant, it reveals that when witness Ramswaroop (PW6) tried to save him at that time appellant/accused Brijesh assaulted him by knife. In these circumstances, other co-accused had no knowledge of the fact that appellant Brijesh was 4 having a knife in his possession, therefore, the other co-accused cannot be made responsible with the help of Section 149 of IPC for the act of accused Brijesh. (6) On the other hand, learned Panel Lawyer justified and supported the impugned judgment and finding of the trial Court. I have perused the impugned judgment, evidence and other material on record. (7) Complainant Preetam Singh (PW1) deposed that at about 4 o'clock in evening he was going towards his field, appellant/accused persons caught hold of him and dragged towards the house of Ramswaroop (PW6) and they told to kill him. He further deposed that when Ramswaroop (PW6) intervened and tried to save him, appellant/accused Brijesh took out a churi and assaulted him in his abdomen and other appellants assaulted him by kicks and fists. He further deposed that Bihari (PW7) and Gopal Singh (PW4) brought him to the hospital, where he lodged first information report Ex.P-1/Dehati Nalishi. (8) Witnesses Shyamlal (PW5) and Ramswaroop (PW6) deposed that complainant and accused persons were quarreling and scuffling with each other but they did not support the prosecution story regarding assault by knife to the complainant Preetam Singh (PW1). They were declared hostile in 5 this regard. Complainant Preetam Singh also confronted with his police statement Ex.D/1 in regard to the fact that accused persons at the time of incident told him that they will kill him. This fact is missing in his previous statement. In these circumstances, story of making unlawful assembly to kill the complainant is not proved beyond reasonable doubt. Complainant Preetam Singh also confronted with his police statement Ex.D/1 in regard to the fact that accused persons at the time of incident told him that they will kill him. This fact is missing in his previous statement. In these circumstances, story of making unlawful assembly to kill the complainant is not proved beyond reasonable doubt. On the contrary, from the evidence of Shyam Lal (PW5) and Ramswaroop (PW6), it is only established that at the time of incident all appellants/ accused persons were quarreling with complainant Preetam Singh (PW1) and Preetam Singh was assaulted by kicks and fists. (9) Dr. Naveen Bhatia (PW10) deposed that he examined the complainant on 1.8.92 and found an incised and penetrating wound of dimension 11/2' x 1/2' on the lower part of the abdomen and omentum is protruding out from injury, therefore he immediately referred him to the Hamidiya Hospital, Bhopal. He further submitted that he wrote the MLC Report on same day. A carbon copy of the MLC Report is Ex.P/14. (10) Learned counsel for the appellant submitted that Ex.P/14 is a carbon copy of MLC report which could not be admitted as a secondary evidence without proof of the fact that original has been lost or not available. In these circumstances, injury report cannot be said to be proved. It is true 6 that prosecution failed to prove that original MLC report has been lost but the report written by doctor after examining the injured is only a corroborative piece of evidence. The substantive piece of evidence on record as Dr. Naveen Bhatia (PW10) deposed before the trial Court and in the event of inability of corroborative piece of evidence, substantive piece of evidence cannot be brushed aside. In these circumstances, complainant stated that he was assaulted by knife (churi), he was immediately shifted to hospital and same day Dr. Naveen Bhatia during treatment found an incised wound and penetrating injury on his lower abdomen and omentum was protruding out from the injury, I am of the view that it is duly proved that injury caused by Brijesh to complainant Preetam Singh was incised wound, caused by sharp cutting object. As mentioned hereinabove, the complainant himself stated that when Ramswaroop (PW6) intervened and tried to save him suddenly accused Brijesh took out a knife (churi) and assaulted him. As mentioned hereinabove, the complainant himself stated that when Ramswaroop (PW6) intervened and tried to save him suddenly accused Brijesh took out a knife (churi) and assaulted him. This fact shows that other appellant/co-accused had no knowledge of the fact that Brijesh was having a knife in his possession. In these circumstances, other co-accused persons cannot be held guilty for the act of accused Brijesh, therefore, prosecution has failed to prove that appellants/accused persons had made unlawful assembly and caused incised wound to the complainant Preetam Singh (PW1), in furtherance of common object of the same. 7 (11) The appeal is partly allowed. Conviction under Section 148 of IPC as well as under Sections 147 and 324/149 IPC against Rajesh Baghel, Jivan Singh, Rakesh and Rajesh S/o Nandlal in criminal appeal No. 1347/1996 is set aside and they are acquitted of the aforesaid charges/offence, instead they are convicted under Section 323 of IPC. Conviction under Section 324 of IPC of appellant/accused Brijesh, is hereby affirmed. (12) Learned counsel for the appellants submitted that appellant Brijesh remained in jail from 29/9/1992 to 5/1/1994 (approximately one year three months and eight days) and other appellants remained in jail from 30/11/1992 to 4/12/1992 (about five days). If their sentences are reduced to the period already undergone and fine amount, the ends of justice would be met out. Considering the fact that the incident was taken place in the year 1991 nearly nineteen years have elapsed and appellant Brijesh has already undergone the jail sentence of one year, three months and eight days and appellants Rajesh Baghel, Jivan Singh, Rakesh and Rajesh S/o Nandlal have already undergone the jail sentence of five days, it will not be in the interest of justice to send them to jail after a long period. In these circumstances, appellant Brijesh is convicted under Section 324 of IPC and sentenced to the period already undergone (one year three 8 months and eight days) and considering the fact that he is found guilty for an offence, the amount of fine is enhanced from Rs.2,000/- to Rs. 5,000/- Appellants Rajesh Baghel, Jivan Singh, Rakesh and Rajesh S/o Nandlal are convicted under Section 323 of IPC and sentenced to the period already undergone (five days) and fine of Rs. 1,000/- each. (13) In the result, the appeal is partly allowed. The appellants are convicted and sentenced as mentioned above. 5,000/- Appellants Rajesh Baghel, Jivan Singh, Rakesh and Rajesh S/o Nandlal are convicted under Section 323 of IPC and sentenced to the period already undergone (five days) and fine of Rs. 1,000/- each. (13) In the result, the appeal is partly allowed. The appellants are convicted and sentenced as mentioned above. (14) If fine amount already deposited by the appellant/accused, set off will be given by the trial Court. A copy of this judgment be placed in Criminal Appeal No. 1347/1996.