JUDGMENT B.V. PINTO, J.—This appeal is filed by the accused challenging the judgment dated 2.4.2004 passed by the 1st Addl. Sessions Judge, Mysore in S.C. No. 91/96 convicting the appellants for the offence under Sections 143, 147, 148, 448, 341, 307 read with 149 IPC and sentencing them to pay a fine of Rs. 250/- each, for the offence under Section 143 read with 149; rigorous imprisonment for six months for the offence under Section 147 read with 149 IPC; Rigorous Imprisonment for six months for the offence under Section 148 read with 149 IPC; Simple Imprisonment for ten days for the offence under Section 448 read with 149 IPC and to pay a fine of Rs. 300/- each; Simple Imprisonment for one month for the offence under Section 341 read with 149 IPC and Rigorous Imprisonment for one year and to pay a fine of Rs. 1,000/- for the offence under Section 307 IPC read with Section 149 IPC with default clauses. 2. It is the case of the prosecution that on 1.12.1995 at about 9 p.m. near the house of the complainant Gulab Singh situated at Haropura village of Nanjangud taluk, the accused persons formed themselves into an unlawful assembly with the common object to commit the murder of Gulab Singh and thereafter they trespassed into the house of Gulab Singh holding lethal weapons like stones and chopper, A1 and A2 assaulted Gulab Singh with machhu and club and stones and all of them wrongfully restrained him and caused simple injuries on him and if they were to cause death of C.W. 1 by the said act they would have been guilty of murder and thereby they are alleged to have committed offences under Sections 143, 144, 148, 448, 341, 323, 324, 307 read with Section 149 IPC. 3. In order to prove the case, the prosecution has examined in all nine witnesses and got marked Exts. P1 to P14 and produced M.Os. 1 to 9. The defence of the accused was one of total denial. 4. After hearing the prosecution and defence, the learned Sessions Judge was pleased to hold that the accused are guilty of the offence as aforesaid and sentenced them, accordingly. 5. Being aggrieved by the order of conviction, and sentence, the accused have filed this appeal. 6. 1 to 9. The defence of the accused was one of total denial. 4. After hearing the prosecution and defence, the learned Sessions Judge was pleased to hold that the accused are guilty of the offence as aforesaid and sentenced them, accordingly. 5. Being aggrieved by the order of conviction, and sentence, the accused have filed this appeal. 6. Heard Sri P. Mahesh, learned counsel for the appellant, and Sri Vijayakumar Majage, learned HCGP and perused the material carefully. 7. On consideration of material on record, the points that arise for my consideration are: 1. Whether the judgment dated 2.4.2004 passed by the 1st Addl. Sessions Judge, Mysore, convicting the appellants and sentencing them is justified? 2. What order? My answer to the above points are: Point No. 1: Partly in the affirmative and partly in the negative. Point No. 2: As per the final order for the following: Reasons: 8. The prosecution was commenced with the filing of a complaint by Gulab Singh on 2.12.1995 and the registration, of the same with Nanjangud Circle Police Station in Crime No. 217/95. In the complaint, Gulab Singh has stated that he is residing with his wife and children in Biligere hobli, Haropura village and that he had taken a loan of Rs. 2,000/- from one Nanjamma. In that connection, he had given interest in the form of paddy to the said Nanjamma. About 3 days prior to the date of incident, brother of Nanjamma by name Basavasetty (Accused No. 1) had taken up quarrel with him. At that time, the complainant had questioned the authority of A1 as to how he could question C.W. 1. Accused has told him that the complainant had kept his sister and, therefore, quarrel took place. It is in the complaint that, on 1.12.1995 at about 9 p.m., in the night when he came out of the house after taking food, all the accused persons came near his house. A2 Basavarajasetty was holding a chopper and A3 Rangasetty was holding a club. They suddenly entered into the house, A2 assaulted him by means of a chopper on his left, side of the head and caused injury. A1 assaulted him on his back with the stone. A3 assaulted him on his right hand with the club. The other accused holding him caused injuries to him. They suddenly entered into the house, A2 assaulted him by means of a chopper on his left, side of the head and caused injury. A1 assaulted him on his back with the stone. A3 assaulted him on his right hand with the club. The other accused holding him caused injuries to him. Since he sustained injuries, he fell down and at that time, villagers came and extricated, him from the assault of the accused. Since it was night, he had gone to Nanjangud Hospital on the next day morning at 7.30 a.m. From there, he was sent, to K.R. Hospital, Mysore. It is stated by the complainant that A1 assaulted him with an intention to kill him. Therefore, action as per law may be taken. On the basis of the complaint, the case aforesaid was registered and after investigation, charge-sheet was filed. 9. In the Court P.W. 1 Gulab Singh has been examined. He has stated regarding overt-acts of A2 and A3. He specifically stated that A2 has assaulted him by means of a chopper on the left side of his head. The other accused have held him whereas Al has held his collar and assaulted by means of stone on his right shoulder and dragged him out of house. Thereafter, he had gone to the Police Station and lodged complaint as per Ex. P1. Then he was got admitted to Nanjangud Hospital, from there, he was taken to K.R. Hospital, Mysore. Ex. P2 is the mahazar in which the clothes worn by him were seized as per M.Os. 1 to 3. He has identified iron chopper M.O. 4; club M.O. 5 and stone M.O. 6. It is stated by P.W. 1 that Nanjamma is the sister of A1. He had taken a loan of Rs. 2,000/- from her. In this connection, A1 had quarreled with him. In the cross examination, it is stated by him that, there was street light at the time of offence. He had denied that he had illegal relationship with Nanjamma. He has further denied that in connection with illegal relationship with Nanjamma, A1 had fought with him and thereafter, given a false complaint. In the further cross examination, P.W. 1 has admitted that there is a case pending against him as per Ex. D1. He had denied that he had illegal relationship with Nanjamma. He has further denied that in connection with illegal relationship with Nanjamma, A1 had fought with him and thereafter, given a false complaint. In the further cross examination, P.W. 1 has admitted that there is a case pending against him as per Ex. D1. He has also admitted that there is one more case registered by the Police against him but denied that he is doing goondagiri and, therefore, there are many enemies to him. 10. P.W. 2 is cousin of P.W. 1. He has stated that on the date of offence, he heard noise and at that time, accused were dragging P.W. 1 out of the house, A1 assaulted with club. A2 with chopper and other with stones. P.W. 1 sustained injuries. Thereafter, they took him to the hospital. He has stated that the Police came on the same night and took him to the station and thereafter he was taken to the hospital. On the next day, he was taken to Nanjangud Hospital and later on to K.R. Hospital, Mysore. He had been to K.R. Hospital. He has identified the weapons of assault, as M.Os. 3 and 7. He has also identified M.Os. 4 and 5 chopper and club. He has stated in the cross-examination that, the seizure mahazar of M.Os. 1 to 3 was written in the K.R. Hospital. Mysore and the spot mahazar was written by the Police at 3 p.m. on the next day. 11. P.W. 3 Praveen Singh has also stated regarding the presence of accused and the assault on P.W. 1. He has stated particularly about the club in the hands of A1 and chopper in the hands of A2 and stones in the hands of other accused on the date of offence. 12. P.W. 4 Dr. Lalitha has stated that on 2.12.1995 at about 9 p.m., she has examined P.W. 1 who has stated that he was assaulted on 1.12.1995 at 11 p.m., by Basavasetty and four others. She has stated that there was an injury on the left side head of P.W. 1 (measuring 6 cm x 1?). However. P.W. 1 was sent to K.R. Hospital, Mysore. On the basis of the measurement of injury, she has stated that injury on P.W. 1 is grievous in nature. She has stated that there was an injury on the left side head of P.W. 1 (measuring 6 cm x 1?). However. P.W. 1 was sent to K.R. Hospital, Mysore. On the basis of the measurement of injury, she has stated that injury on P.W. 1 is grievous in nature. She has stated that such injury could be possible by assault by means of M.O. 4. 13. P.W. 5 Nanjamma has stated that A1 is her brother and that she is having friendship with P.W. 1 and she had lent a sum of Rs. 2,000/- to P.W. 1. She has further stated that P.W. 1 was coming to her house often. However, regarding the incident she has turned hostile to the case of the prosecution. P.W. 6 Susheelabai has also stated regarding assault on P.W. 1 who is her nephew. She has also identified the accused. However, she has not specifically stated as to which accused was holding which weapons except saying that A1 had assaulted P.W. 1 by means of a chopper on his head. She has also identified M.O. 4 the weapon used for assault on P.W. 1. In the cross examination, she has stated that she is not able to say as to who called P.W. 1 outside on the date of the incident. She also stated that she is not in a position to state which of the accused was holding which weapon on the date of the incident. P.W. 7 and P.W. 8 who are the witnesses for the recovery of weapons and mahazar Ex. P6 to P8 have turned hostile to the case of the prosecution. 14. P.W. 9 S. Shivanna, is PSI of Kavalande Police Station. He has registered a case on the basis of statement of P.W. 1 and thereafter transmitted FIR to the Court, seized the weapons, arrested the accused, and after completion of investigation recovered the weapons on the basis of voluntary statement of A1 to A3 and thereafter filed charge-sheet in this case. 15. It is seen from the evidence of prosecution witnesses that nowhere it is mentioned that accused had assaulted the injured P.W. 1 with the intention to cause his death. The doctor who has been examined before the Court also does not state that the injuries found on P.W. 1 endanger to his life or that P.W. 1 was likely to succumb to the said injuries. The doctor who has been examined before the Court also does not state that the injuries found on P.W. 1 endanger to his life or that P.W. 1 was likely to succumb to the said injuries. Under the circumstances, the prosecution has not proved the case against the accused for the offence under Section 307 IPC. The other overt-acts of the accused are concerned, specific overt-acts are alleged against A1 and A2 and so far as A3 to A8 are concerned except holding P.W. 1 there are no specific overt-acts against them also. It is seen from the evidence that A3 and A2 have assaulted P.W. 1 by means of stone and chopper. However, P.W. 5 the doctor says that there was only one injury on the person of P.W. 1 when he was examined at about 9 a.m., on 2.1.2.1995. Therefore, the evidence of P.W. 1 as well as other witnesses that A1 has assaulted by means of stone and A2 assaulted by means of a chopper on P.W. 1 is not proved by medical evidence. P.W. 4 has stated that the injury on P.W. 1 could have been caused by M.O. 4 chopper. Therefore, under the circumstances, the assault by A1 on P.W. 1. by stone is also not proved beyond reasonable doubt. Now we are left with the assault by A2 Basavarajasetty with the chopper on P.W. 1 which is supported by cogent evidence and also the evidence of the doctor. However, though P.W. 4 says that the injury is grievous in nature, she has not produced any X-ray before the Court nor any opinion of a superior doctor from K.R. Hospital, Mysore to hold that the injury sustained by P.W. 1 is grievous in nature. P.W. 4 has not given any opinion regarding the injury since P.W. 1 was advised to go to K.R. Hospital and no doctor from K.R. Hospital, Mysore has been examined to prove the nature of the injury sustained by P.W. 1. In the circumstances, it can be safely held that A2 Basavarajashetty has caused simple injury on P.W. 1 for which he deserves to be convicted. The evidence of other witnesses also corroborate the evidence of P.W. 1. regarding the assault by Basavarajasetty A2 on P.W. 1 by means of a chopper. In the circumstances, it can be safely held that A2 Basavarajashetty has caused simple injury on P.W. 1 for which he deserves to be convicted. The evidence of other witnesses also corroborate the evidence of P.W. 1. regarding the assault by Basavarajasetty A2 on P.W. 1 by means of a chopper. Therefore, 1 hold that the prosecution has been successful in proving the guilt of A2 Basavarajasetty for offence under Section 324 IPC. Heard regarding the sentence to be imposed on A2. 16. It is seen that the accused are villagers and there are no antecedents against them. The incident having taken place in the year 1995 and period of 15 years have elapsed from the date of offence and no useful purpose would be served in sending A2 to prison. Under the circumstances, I am of the opinion that A2 may be admitted to provision of Probation of Offenders Act and directed to execute a bond with one surety to keep peace for a period of one year which would meet the ends of justice. In that view of the matter, I pass the following: ORDER The appeal filed by the appellants is partly allowed. The order of conviction passed against A1, A3 to A8 is hereby set aside. A1, A3 to A8 are acquitted of the offence under Sections 143, 147, 148, 448, 341, 323, 324 read with Section 149 IPC. Their bail bonds are cancelled. Fine amount, if any, paid by them be refunded to them. A2 Basavarajashetty s/o Dasasetty is convicted for the offence under Section 324 IPC. His conviction under Sections 143, 147, 148, 448, read with 149 IPC is set aside. A2 is directed to be released on probation by executing a bond for Rs. 10,000/- with one surety for the like sum to the satisfaction of the Trial Court and undertaking to be of good behaviour for a period of one year from the date of execution of the said bond. 17. Appeal is disposed of accordingly.