JUDGMENT : Akhilesh Chandra, J. This appeal has been preferred by eight appellants against the judgment dated 2nd March, 2001 passed by learned 3rd Additional District & Sessions Judge, Gopalganj in Sessions Trial No. 207 of 1997/032 of 1997 arising out of Bishambhar Pur P.S. Case No. 17 of 1997, challenging conviction of appellant No. 6 Oshihar Gond @ Washihar Gond for the offence under Sections 307/34, IPC and Section 148, IPC and sentenced to undergo R.I. for ten years under Sections 307/34, IPC and two years under Section 148, IPC and for remaining appellants for the offence under Section 307/34, IPC five years. Further appellant No. 3 Ram Bachan Gond under Section 379, IPC one year, under Section 323, IPC six months and appellant Nos. 1 to 5 under Section 147, IPC one year. Besides above all the appellants were ordered to pay fine of Rs. 2,000/- each to be paid to the informant, in default to undergo SI for three months. 2. The prosecution has come out with a case on the fardbeyan of PW 5 Rajendra Sah recorded at 10 a.m. on 4.6.1997 in Primary Health Centre, Kuchaikot that in the previous night at about 10 p.m. when the informant was taking rest after dinner at his door appellants Bairister Gond, Muna Gond, Ram Bachan Gond, Jwahir Gond and Rajesh Gond with lathi Oshihar Gond with garasa, Kedar Dhanukh with Pahurua and Ram Pravesh Gond with Kanta arrived and started abusing and instantly appellant Osnihar Gond given garasa blow inflicting injury on head of the informant, who became senseless and others assaulted by lathi on several parts of the body. On alarm his wife PW 2 intervened. She was assaulted by lathi, danda by appellant Ram Bachan Gond who also snatched her chain and earring. Cause behind the dispute is a palm tree whereon both the sides have their claim. On alarm by family members villagers arrived, seen the occurrence and the informant was brought to hospital by his son PW 1, son-in-law PW 4 and other villagers Rajesh Ram and Chhotelal (both not examined) and the fardbeyan was recorded and signed in presence of his son and son-in-law PWs 1 and 4 respectively. The police after investigation submitted charge-sheet and on commitment trial commenced. 3. During trial the prosecution produced following documentary evidence besides examining eight witnesses :- Ext. The police after investigation submitted charge-sheet and on commitment trial commenced. 3. During trial the prosecution produced following documentary evidence besides examining eight witnesses :- Ext. 1 - Signature of Officer Incharge on the fardbeyan. Ext. 1/1 - Signature of witness on the fardbeyan. Ext. 1/2 - Fardbeyan. Exts. 2 to 2/1 - Injury report. Ext. 3 - F.I.R. Here it would be relevant to mention that during course of argument it could be detected that after examination of prosecution witness No. 5 on 16th July, 1998 one Ram Pravesh Ram, a formal witness proving Ext. 2, was examined on 2nd January, 1999, but neither in his deposition which is lying at first page of the prosecution evidence nor in the order sheet dated 2nd January, 1999 of the trial Court there appears number of this witness examined though other details is there in order sheet and thereafter two more witnesses have been examined on 18th August and 19th August, 2000, they have been given numbers 6 and 7. Having regard to the above, they are renumbered as prosecution witness Nos. 7 and 8 and in between this witnesses Ram Pravesh Ram examined on 2nd January, 1999 is treated as prosecution witness No. 6. 4. PW 1 Braj Kishore Sah, son of the informant almost by stating prosecution version has added assault of his sister by appellant Rajesh Gond and Muna Gond by means of lathi and appellant Kedar Dhanukh using tangi damaged Pandum, whereas, his sister PW 3 while supporting him states her assault by appellants Rajesh Gond, Jwahir Gond and Muna Gond but not by lathi rather by slaps, whereas, the informant PW 5 contrary to his statement in fardbeyan introduces appellant Kedar Dhanukh as assailant of his daughter and all the witnesses are silent about any role played by Bairister Gond except his presence. This inconsistency gave adequate room to the learned counsel for the appellants to submit that none of these appellants have participated in the occurrence rather they have falsely been implicated. Learned counsel further derives support from statement of PW 4 Bishun Sah, son-in-law of the informant who has not said about any assault to PW 3 though claiming to be an eye-witness right from beginning till date. 5. Learned counsel further derives support from statement of PW 4 Bishun Sah, son-in-law of the informant who has not said about any assault to PW 3 though claiming to be an eye-witness right from beginning till date. 5. PW 1 Braj Kishore Sah has said about garasa blow on head of the informant by appellant Oshihar Gond and when his mother came in rescue appellant Ram Bachan Gond assaulted her by lathi. This is what is said by PW 2 Surajpati Devi as well PW 3 Shanti Kumari, PW 4 Bishun Sah and PW 5 Rajendra Sah, informant, and finds support from PW 7 Dr. Janak Lal Sharma who on examination of PW 2 Surajpati Devi found the following injuries :- 1. One abrasion 4"x 1/3" on light thigh. 2. One abrasion 4" x 1/3" on front of right leg. 3. One bruise 3" x 2" on left side of body. 4. One bruise 2" x 2" on left wrist. 5. Diffused slenderness all over body. Thereafter on examination of the informant found the injuries stated below :- 1. One incense wound 2-1/2" x 1/2" bone deep extending from right frontal region. And right parietal region with cutting and fracture of right frontal bone of scalp, patient is also having bleeding from light ear and light nostril. 2. One bruise 2” x 2” around light eye ball with entire ocular haemorrhage and traumatic conjunctive also with bleeding of vision. 3. One bruise 2'" x 2'" on outer side of left elbow. 4. Diffused slenderness allover the body. 6. PW 2 has sustained simple injuries and it is consistently stated by all the witnesses that her assailant is none else than appellant Ram Bachan Gond. At the same time the informant has sustained injury on his head grievous in nature caused by a deadly weapon garasa but at the same time all the witnesses examined on behalf of the prosecution are consistent on the point that there was no repetition of garasa blow by appellant Oshihar Gond who inspite of having opportunity did not repeat otherwise informant would have been killed but the conduct indicates intention of his assailant was not to kill but to teach some lesson for denial of the claim upon Palm tree. 7. 7. In view of above, the appellant Oshihar Gond cannot be held guilty for the offence under Section 307, IPC rather by inflicting grievous injury on vital part he attracts an offence under Section 326, IPC and appellant Ram Bachan Gond assailant of PW 2 attracts offence under Section 323, IPC. None of these two appellants may be held guilty for any other offence. At the same time remaining appellants under the facts and circumstances stated above cannot be held guilty for any such offence since their alleged participation in the occurrence appears not established. 8. Having regard to the facts and circumstances, conviction of appellant No. 6 Oshihar Gond @ Washihar Gond is converted from Section 307/34, IPC into Section 326, IPC and appellant No. 3 Ram Bachan Gond under Section 323, IPC and conviction of all the remaining appellants, namely, appellant No. 1 Bairister Gond @ Balister Gond, appellant No. 2 Muna Gond, appellant No. 4 Jwahir Gond, appellant No. 5 Rajesh Gond, appellant No. 7 Kedar Dhanukh and appellant No. 8 Ram Pravesh Gond is set aside. 9. Taking into consideration the time elapsed and both the appellants have suffered detention for some period rather appellant No. 6 for years together during and after trial, sentence of appellant No. 3 Ram Bachan Gond is reduced as undergone, whereas, subject to deposit of Rs. 8,000/- within two months payable to the informant, if alive, if not to his heir, sentence of appellant No. 6 may be reduced as undergone. Let the order be immediately communicated to the Court concerned through fax at the cost of the appellants. Ordered accordingly.