JUDGMENT Arvind Kumar Tripathi (II),J. 1. Instant criminal appeal has been filed by challenging the judgment and order dated 3.9.2012 passed by the learned Additonal Sessions Judge (FTC - 2), Sultanpur in ST No.381 of 1992 (State of U.P. v. Kunwar Bahadur @ Gandhi and another) convicting and sentencing the appellants under Section 147 IPC to undergo 1 year RI, under Section 452 read with 149 IPC to undergo 2 years RI and also to pay fine of Rs.500/- each and under Section 308 read with 149 IPC to undergo 3 years RI. In default of payment of fine to undergo 3 months additional imprisonment and the sentence to run concurrently and from the amount of fine Rs.2000/- each was to be given to the injured persons equally as compensation. 2. As per factual matrix of the case, FIR was lodged by Hausala Prasad in Police Station Munshiganj, District Sultanpur alleging that on the fateful day, at about 7.30 AM, Kunwar Bahadur @ Gandhi came to his house and complained that you had him beaten yesterday in a fair, then he stated that he is not aware of the fact that who has assaulted you, but due to that enmity Kunwar Bahadur @ Gandhi, Raj Kishore Tiwari, Hari, Ram Kripal, Dukhai, Bhandari, Sukaroo, Sahaie, Jiya Lal, Koee and Kallu assalted him by means of lathi and danda. He ran into his house and the accused persons entered into the house and assaulted him and his son Ram Charitra, Moti Lal and Smt. Guddi. On alarm, Ram Kuber, Bhuneshwar Pandey, Shiv Charan and many other persons came to rescue. On this, all the accused persons fled away threatening and abusing them. On this, a case under Sections 147, 452, 308, 323, 504, 506 IPC was registered in the police station at about 9.30 AM. After investigation, charge sheet was submitted against the accused persons under Sections 147, 308, 452, 323, 504, 506 IPC. After committal of cae, charge under Sections 147, 308, 452, 323/149, 308/149 was framed. The accused persons pleaded not guilty and claimed to be tried. 3. Heard Shri Parijat Belaura and Surendra Kumar Shukla, learned counsel for the appellants and Shri Sharad Dixit, learned AGA for the State respondent. 4. The appellants - Raj Kishore and Dukhai have died, therefore, the appeal on their behalf is abated and have been heard on behalf of nine appellants 5. 3. Heard Shri Parijat Belaura and Surendra Kumar Shukla, learned counsel for the appellants and Shri Sharad Dixit, learned AGA for the State respondent. 4. The appellants - Raj Kishore and Dukhai have died, therefore, the appeal on their behalf is abated and have been heard on behalf of nine appellants 5. Prosecution examined Hausila as PW-1, Ram Charitra as PW-2, Dr. Vinod, PHC, Amethi as PW-3, Dr. J.B. Singh, Senior Radiologist, T.B. Sapru Hospital, Allahabad as PW-4, Badri Prasad Tiwari, Constable CP 361, Kotwali, Barabanki as PW-5. The statement of accused persons was recorded under Section 313 Cr.P.C. They have denied their involvement. No defence witness was examined by either of the parties. In the court, the injured Moti Lal and all the accused persons filed compromise, which was duly verified. The court below, after going through the evidence on record, convicted the accused persons, as mentioned above. Feeling aggrieved, this criminal appeal was filed. 6. Submission of learned counsel for the appellants is that from the injuries on record offence under Section 308 is not made out, as all the injuries are simple. 7. PW-4 Dr. J.B. Singh is radiologist, who has radiologically examined the injuries of Hausila Prasad and prepared the x-ray report. This witness has proved x-ray report as Ex.Ka.7 and x-ray plate as Ex.Ka.1 and Ex.Ka.2. In his cross examination, he has submitted that all the injuries were simple because there was no fracture beneath the injuries. 8. Injuries of Hausila Prasad is reproduced below: - (1) Lacerated wound of 8.5 cm x 1 cm x scalp deep on the right side of scalp, 10 cm above the top of right pinna. Adviced x-ray scalp AP and lateral. (2) Lacerated wound of 0.5 cm x 1.3 cm x muscle deep on the outer aspect of right upper arm and 8.5 cm above right elbow joint. (3) Tramatic swelling 10 cm x 8 cm of the posterior aspect on right elbow joint. (4) Abraded contusion of 8 cm x 2 cm on the dorsal aspect of right forearm, 10 cm below the right elbow joint. (5) Contusion 18 cm x 2 cm on the dorsal aspect on right back of chest, 6 cm below right shoulder tip oblique in position. (6) Contusion 23 cm x 2 cm on the back of chest, 15 cm below 7th vertibra oblique in position. (5) Contusion 18 cm x 2 cm on the dorsal aspect on right back of chest, 6 cm below right shoulder tip oblique in position. (6) Contusion 23 cm x 2 cm on the back of chest, 15 cm below 7th vertibra oblique in position. (7) Contusion of 10 cm x 2 cm on the right back of chest, 6 cm below injury no.6. (8) Contusion of 5 cm x 2 cm on the back of right chest, 16 cm below right scapula. (9) Contusion of 6 cm x 1.5 cm on the left back of shoulder, outer left side below. 9. To cover the injuries within the perview of Section 308 IPC it has to be proved that if the act of causing injury is done with the intention or knowledge and under such circumstances that if by the act death is caused, accused would be guilty of culpable homicide. In the instant case, injury no.1 is not injury so as to likely to cause death. In x-ray, no fracture was found beneath the injury and this injury was found to be simple in nature. In view of this, submission of learned counsel for the appellants has force that no offence under Section 308 is made out. 10. Consequently, the appellants are acquitted from the offence under Section 308 IPC, but from the injuries and evidence offence under Section 323 read with 149 IPC is made out. 11. Injuries of Ram Charitra are reproduced below: - (1) Lacerated wound 5.5 cm x 0.5 cm x 0.5 cm above the left side of head at 10 cm upper part of ear. Bleeding was present. (2) Contusion 10 cm x 2 cm below 2.5 cm on the elbow of left forearm. (3) Contusion 18 cm x 1.5 cm towards back of the chest 4.5 below the post axullary. (4) Contusion 21 cm x 1.5 cm on the back of chest 20 cm below the 7th ceril oblique in position. 12. Injuries of Moti Lal are reproduced below: - (1) Contusion of 9 cm x 2 cm on the back of right side of chest 13 cm above the right scapula. (2) Abrasion of 0.5 cm x 0.3 cm on the front side of left knee. 13. 12. Injuries of Moti Lal are reproduced below: - (1) Contusion of 9 cm x 2 cm on the back of right side of chest 13 cm above the right scapula. (2) Abrasion of 0.5 cm x 0.3 cm on the front side of left knee. 13. Injuries of Smt. Guddi are reproduced below: - (1) Contusion 6 cm x 2 cm on the dorsal aspect of right forearm 7 cm below the elbow joint. 14. A perusal of above injury reveals that Smt. Guddi has received one contusion on dorsal aspect of right forearm. Moti Lal has received one contusion on back of right chest and one abraison, Ram Charitra has received one lacerated wound, three contusions. These injuries are simple in nature. 15. During the course of argument, learned counsel for the appellants stressed that there was compromise between the accused persons and the injured Moti Lal and this has been verified by the court. However, as other injured persons have not filed any compromise, hence this compromise cannot be said to be on the behest of other injured persons. 16. I have gone through the entire evidence on record. There is no discrepency, improvement and material contradiction in the statement of witnesses so as to disbelieve their statement. Considering the long gap between the incident and trail and decision of appeal. The appeal is liable to be dismissed, and is hereby dismissed with modification in sentence. 17. The occurrence is of 1991, and the matter in appeal is being decided in the year 2014, the sentence is modified as mentioned below. 18. The appellants are sentenced to pay Rs.1000/- each under Section 147 IPC. In default, they will have to undergo two months SI. The appellants are further sentenced to pay Rs.1000/- each under Section 323/149. In default, they will have to undergo two months SI. Under Section 452 IPC they are sentenced to pay Rs.2000/- fine each and the sentence of imprisonment is reduced to the period already undergone during trial, and in default, they are to further undergo two months SI. From the fine deposited, each of the injured will get Rs.2000/- each, as compensation. Fine thus imposed shall have to be deposited within two months from today. Failing which Chief Judicial Magistrate/trial court concerned swhall take all necessary steps to recover the fine. The Trial Court shall submit compliance report to this Court. 19. From the fine deposited, each of the injured will get Rs.2000/- each, as compensation. Fine thus imposed shall have to be deposited within two months from today. Failing which Chief Judicial Magistrate/trial court concerned swhall take all necessary steps to recover the fine. The Trial Court shall submit compliance report to this Court. 19. Registrar, High Court Lucknow Bench, Lucknow to monitor the progress regarding compliance of the order.