JUDGMENT A.K. Goswami, J. 1. This revision petition is directed against the judgment and order dated 22.4.2004 passed by the learned Sessions Judge, Golaghat, in Crl. Appeal No. 1/2004, dismissing the appeal preferred by the petitioners and confirming the judgment and order dated 29.11.2003 passed by the Additional Chief Judicial Magistrate, Golaghat, in GR Case No. 1004/2002 whereby the petitioners were convicted under Sections 341/323/325/34, IPC and sentenced to suffer simple imprisonment for fifteen days each under Section 341, IPC, simple imprisonment for a period of three months under Sections 323/34, IPC and simple imprisonment for one year and to pay fine of Rs. 500/- under Sections 325/34, IPC. The prosecution case, in brief, is that an ejahar (Ext-1) was lodged by one Dinaram Gogoi on 25.2.2002 with the Officer-in-Charge of Merapani Police Station, alleging, that at about 7 p.m., on 19.10.2002, while his son Jogeswar Gogoi had gone to a shop, the petitioners, without any provocation, assaulted his son with dao/spear/dagger and seriously injured him and had also caused injuries in his left hand by assaulting him with lathi and Rs. 500/- was snatched away from him. In the said ejahar, it was also indicated that on hearing the screams of the injured, Smti Luhiti Saikia and other villagers brought the injured to his residence and thereafter, he was taken to Golaghat Civil Hospital where he was undergoing treatment-. On the basis of the said ejahar, Merapani Police Station Case No. 47/2002 under Section 341/326/379/34, IPC was registered. 2. After investigation was completed, finding enough materials against the present petitioners, the police had submitted charge-sheet against the present two petitioners as well as one Narayan Bora under Sections 341/324/34, IPC. Subsequently, the learned trial Court framed charges under Sections 341, 323/34 and 325/34, IPC against the accused persons and the charges having been read over to them, they pleaded not guilty and claimed to be tried. 3. During trial, the prosecution examined 7 witnesses including the injured as PW 2. The doctor, who examined the injured on 20.10.2002, was examined as PW 5. PW 1 is the informant whereas PW 7 is the Investigating Officer of the case. PWs 3, 4 and 6 had reached the place of occurrence and had found the injured. 4. 3. During trial, the prosecution examined 7 witnesses including the injured as PW 2. The doctor, who examined the injured on 20.10.2002, was examined as PW 5. PW 1 is the informant whereas PW 7 is the Investigating Officer of the case. PWs 3, 4 and 6 had reached the place of occurrence and had found the injured. 4. The accused persons were examined under Section 313 of the Cr PC, and during such examination, they had denied the circumstances appearing against them and professed their innocence. It is relevant to note that there was no evidence, whatsoever, against the third accused, namely, Sri Narayan Borah, and therefore, the learned trial Court did not even feel the necessity to examine Sri Narayan Bora under Section 313 of the Cr PC and accordingly, such examination was dispensed with. Predictably, Sri Narayan Bora was acquitted by the learned trial Court in absence of any material against him. The learned trial Court, however, on a consideration of the materials available in the evidence on record, convicted the petitioners, as has been noted hereinabove. 5. The appeal preferred against the judgment registered as Crl. Appeal No. 1/2004 was also dismissed by the learned Sessions Judge at Golaghat by the judgment and order dated 22.4.04. Challenging the said order, the petitioners had filed this revision application. 6. Heard Mr. T. J. Mahanta, learned counsel for the petitioners as well as Mr. K. Munir, learned Additional Public Prosecutor, Assam. I have also perused the materials on record. 7. Mr. Mahanta, the learned counsel for the petitioners submits that the evidence on record would disclose that the family of the informant and the petitioners were not in good terms although they happened to be neighbours. Mr. Mahanta has strenuously urged that there is no reliable evidence on record to hold Nabin Gogoi guilty of the offences. According to him, though PW 2 had stated that Nabin Gogoi had assaulted him with a lathi in his left hand, no such evidence of injury was found by PW 5 when the injured was examined on the next day of the occurrence i.e. 20.10.2004. The learned counsel submits that according to PW 3, she had seen only one person running away with his face covered, which effectively discounts the presence of any other person. The learned counsel submits that according to PW 3, she had seen only one person running away with his face covered, which effectively discounts the presence of any other person. The learned counsel further submits that the acquittal of Narayan Bora also fortifies the fact that there was only one individual present at the place of occurrence. The learned counsel, however, submits that there are incriminating materials available against Nripen Gogoi with regard to the offences alleged. The learned counsel has also submitted that ingredients of offence under Section 34, IPC is absent in the instant case and Nabin Gogoi cannot be roped in with the aid of Section 34, IPC, having regard to the evidence on record. 8. Mr. Mahanta, learned counsel has submitted that Sri Nripen Gogoi was in custody from 31.10.02 to 16.12.02 for a period of forty-six days and it is his submission that Nripen Gogoi may be granted the benefit of Section 360 of the Cr PC or be sentenced with the period already undergone in custody. 9. Mr. K. Munir, learned Additional Public Prosecutor, submits that there is no reason as to why the evidence of PW 2 should be disbelieved and it is evident from his version that Nabin Gogoi had also assaulted the injured, and therefore, the learned trial Court was justified in convicting the petitioners under Sections 341, 323/34 and 325/34, IPC 10. PW 1 in his evidence had stated that he could not clearly notice the injury sustained by his son as he had fallen down unconscious. PW 2 attributed that Nripen Gogoi had caused injury in his lower limb on the right hand side of his leg below the knee and also on the fingers, elbow of right hand side as well in the right shoulder and that Nabin Gogoi had beaten him with a lathi on his left fingers. According to his evidence, the petitioners were hiding in the field and had assaulted him after coming out of hiding when he had gone to a nearby shop. In his cross examination, he had stated that he had fallen down unconscious when he was first assaulted by dagger. He had also deposed that there was no person other than the petitioners at the place of occurrence. It came out in his evidence that relations were far from cordial between the two families. In his cross examination, he had stated that he had fallen down unconscious when he was first assaulted by dagger. He had also deposed that there was no person other than the petitioners at the place of occurrence. It came out in his evidence that relations were far from cordial between the two families. PW 3, who happened to be the first person to have reached the injured, had stated that she had noticed one person, whom she recognized as Nripen Gogoi, going by a path, near the river front, used by the villagers, holding the dagger in his hand after covering his face with a tee-shirt and hearing her screams, Dandeswar Gogoi, Nani Saikia and others had come to the place of occurrence and when they reached the place of occurrence, they had found PW 3 and PW 2, who was in injured condition. 11. PW 5, who had examined the injured on 20.10.02, had found the following injuries on PW 2 : (1) 1 CM X 1 CM oblique incised wound over the right Palm which was also stitched. On opening the wound, metacarpal bone underneath was found fractured. (2) 1 CM X 1 CM oblique incised wound over the right forearm already stitched. The injury is soft tissue deep. (3) Abrassion over the right side of the chest wall of 1 CM X 1 CM in size. (4) Fracture of both bone lower limb(right). 12. PW 6 in his evidence, however, had stated that PW 3 had informed that the petitioners had assaulted PW 2 and had fled away and that Nripen Gogoi had dagger in his hand and Nabin Gogoi had a walking stick in his hand. However, PW 3 did not depose anything with regard to the assault made or that she had informed PW 6 about the assault made by Nabin Gogoi and Nripen Gogoi. The evidence of PW 7, the Investigating Officer, does not reveal much except that the injured PW 2 had not stated in detail where he had sustained injuries. 13. From the evidence on record as discussed above, it is difficult to hold that the prosecution has established presence of Nabin Gogoi beyond reasonable doubt. Medical evidence also belies the evidence of PW 2 with regard to the injury sustained by PW 2 in the fingers of his left hand. 13. From the evidence on record as discussed above, it is difficult to hold that the prosecution has established presence of Nabin Gogoi beyond reasonable doubt. Medical evidence also belies the evidence of PW 2 with regard to the injury sustained by PW 2 in the fingers of his left hand. That the parties were also not in good terms is also apparent from the evidence of PW 2. In such circumstances, roping in of Nabin Gogoi by the informant party cannot be ruled out. When the presence of Nabin Gogoi itself is doubtful, it is the considered opinion of the Court that Section 34 could not have been invoked to convict Nabin Gogoi for the offences alleged. However, evidence on record clearly establishes and which is not also disputed by the learned counsel for the petitioners that the prosecution has clearly established offences against Nripen Gogoi. 14. In view of the discussions aforesaid, Nabin Gogoi is acquitted of the charges against him. His bail bond stands discharged. However, the conviction of Nripen Gogoi is not interfered with. 15. The next question that arises for consideration is with regard to sentencing of Nripen Gogoi for his conviction under Sections 341/323/325, IPC. 16. The provision of Section 360, Cr PC provides for an order to release on probation of good conduct or after admonition. The accused Nripen Gogi was aged about 23 years when the incident had taken place in the year 2002. The learned trial Court, for the reasons assigned, had declined to accord the benefit of Section 360, Cr PC to Nripen Gogoi. 17. The accused Nripen Gogoi and the injured Jogeswar Gogoi are neighbours. The incident had taken place in the year 2002. Nine years have gone by from the date of the incident. By an order dated 20.7.2004, this Court had granted stay of the execution of the judgment and order dated 22.4.2004 passed by the learned Sessions Judge, Golaghat, in Crl. Appeal No. 1/2004 and had allowed both the petitioners to remain on previous bail. 18. Considering the matter in its entirety and in the interest of justice, the period of imprisonment in respect of Nripen Gogoi is altered to the period already undergone in custody. The amount of fine is increased to Rs. 2,000/- from Rs. 500/- imposed earlier. Appeal No. 1/2004 and had allowed both the petitioners to remain on previous bail. 18. Considering the matter in its entirety and in the interest of justice, the period of imprisonment in respect of Nripen Gogoi is altered to the period already undergone in custody. The amount of fine is increased to Rs. 2,000/- from Rs. 500/- imposed earlier. In addition, in exercise of power under Section 357, Cr PC, Nripen Gogoi is directed to deposit an amount of Rs. 5000/- to the learned trial Court within a period of two months from today and the learned trial Court will issue notice to Jogeswar Gogoi so as to enable him to collect the amount of compensation. In the event of failure to deposit the amount of fine as well as the compensation amount within the period stipulated, it is made clear that Nripen Gogoi will have to suffer rigorous imprisonment of one year as directed by the learned Courts below. The revision petition is allowed to the extent indicated above. Send down the LCR forthwith. Petition allowed.