JUDGMENT : 1. This appeal is directed against the judgment of conviction dated 11.02.2004 and order of sentence dated 12.02.2004, passed by Dr. Kumar Deo Dutta, the then Presiding Officer Additional Sessions Judge, Presiding Officer Additional Court No. II (F.T.C.) Saran at Chapra in Sessions Trial No. 142/96 and 129/2002, by which the appellants, above named, stood convicted under Section 326/34 and of the Indian Penal Code (hereinafter referred to as the “IPC”) and were sentenced to undergo R.I. for 07 years with a fine of Rs. 2,000/- each having default clause. By the said judgment, Trial Court released other accused persons by giving them benefit of Section 360 Cr.P.C. 2. Prosecution case as per the fardbeyan of Rajnath Manjhi recorded by Marhaura police, in short is that son of the informant for the last several days and treatment was going on and when he could not be cured, informant called a local “Bhagat” namely, Amardeo Manjhi and at about 2.00 P.M. the said “Bhagat” Amardeo Manjhi came to his house. At 3.30 P.M. his cousin brother Vakil Manjhi and the wife of his younger brother Mosmat Rampatiya Devi came there and started abusing them, thereafter, appellant Rakesh Singh and one Maheshwari Singh came there and they also started abusing the informant, on which wordy quarrel took place between the parties and accused came armed with lathi Bhala and Labda and assaulted the informant and when his two wives, namely, Rampati Devi and Kismati Devi came to save him, they were also assaulted by the accused persons, causing several injuries to informant and his wives. 3. On the basis of the above fardbeyan of the informant, Marhaura P.S. Case No. 94/94 was registered under Sections 341, 324, 323, and 307/34 of the IPC. 4. Police after investigation submitted charge-sheet. Cognizance of the offence was taken and the case was committed to the court of Sessions, which ultimately came to the file of Dr. Kumar Deo Dutta, the then Presiding Officer Additional Sessions Judge, Presiding Officer Additional Court No. II (F.T.C.) Saran at Chapra for trial and disposal. 5. Charges were framed under Section 307/34 of the IPC against the appellants and other accused persons. 6. In order to substantiate the charges, prosecution examined altogether six witnesses, they are: PW-1 Rampati Devi (wife of informant) PW-2 Dr. 5. Charges were framed under Section 307/34 of the IPC against the appellants and other accused persons. 6. In order to substantiate the charges, prosecution examined altogether six witnesses, they are: PW-1 Rampati Devi (wife of informant) PW-2 Dr. Manju Singh (the doctor, who treated and examined the injured Rampati Devi and Kismati Devi), PW-3 Amardeo Manjhi (tendered for cross-examination), PW-4 Rajnath Manjhi (informant and injured), PW-5 Dr. Mahadeo Singh (the doctor, who examined the informant Rajnath Singh), PW-6 Rakesh Kumar (I.O.) 7. Defence of the accused is of false implication due to enmity as prosecution evidence itself shows that large number of cases are going on between the parties and defence has also brought Ext. A, the judgment passed in trial case no. 14/2000 by the learned Special Judge, SC/ST (Prevention of Atrocities) Act, Saran, Chapra, in which the informant was named as Ras Bihari Manjhi and the name of accused was appellant Rakesh Singh. 8. Post trial, learned Trial Court, though not found the case under Section 307/34 IPC, however, he convicted the appellants under Section 326/34 of the IPC and sentenced them in the manner as stated above. 9. Being aggrieved, the appellants preferred the present appeal. 10. Learned counsel for the appellants has assailed the judgment of trial court on the ground that all the injuries caused to the informant and his wives, were found to be simple in nature but in spite of that the trial court has convicted the appellants under Section 326/34 of the IPC. Further submission is that there is contradiction in the evidence of informant Rajnath Manjhi from his earlier statement given before the police i.e. fardbeyan as in the court, he has stated that Rakesh Singh assaulted him by bhala causing piercing injury in his eye, whereas the F.I.R shows that it was the Maheshwari Singh, who assaulted him by bhala. Even in statement of appellant Rakesh Singh under Section 313 Cr.P.C. he has been asked to have assaulted by Labda to the informant Rajnath Manjhi and the trial court without considering these infirmities and also without considering that there was enmity between the parties from before, has convicted the appellants under Section 326/34 of the IPC, which is out and out perverse and not sustainable in the eye of law. 11. 11. On the other hand, learned counsel for the respondent- State supported the finding of guilt recorded by the Trial Court and submitted that in this case there are consistent evidence of witnesses that on the alleged date of occurrence, appellants came armed variously and assaulted the informant and his wives. The evidence of witnesses found further corroboration from the medical evidence, in which injuries were found on the persons of injured and, therefore, there is no infirmity in the impugned judgment and the conviction of appellants under Section 326/34 of the IPC is just and proper. 12. In the background of the contentions of the parties, on perusal of evidence, it appears that PW-4 is the informant in this case and his evidence disclosed that while he was getting his son herbally treated by a “Bhagat” namely Amardeo Manjhi PW-3, his cousin brother Vakil Manjhi and Rampatiya Devi came there and started abusing the informant on which he protested then Rakesh Singh assaulted him by bhala causing injury below his right eye and Maheshwari Singh assaulted him by lahi on his back and abdomen and others also assaulted him and when his wives, namely, Rampati Devi and Kismati Devi came to save him, they were also assaulted. However, from his earlier statement made before the police, it appears that he has given a go by to the prosecution story in the F.I.R. as in the F.I.R. he has stated about assault by bhala by Maheshwari Singh causing injury below his left eye and appellant Rakesh Singh assaulted him on his forehead by lathi and appellant Vakil Manjhi and Rampatiya Devi assaulted him by means of Labda and when his wives came to save him they were also assaulted by the appellants and others. 13. PW-1, Rampati Devi is wife of informant and her evidence also disclosed that while PW-3 Amardeo Manjhi was treating her son, Rampatiya Devi, Vakil Manjhi, Maheshwari Singh and Rakesh Singh started abusing them and when protested, Maheswhari Singh assaulted her husband (informant) by bhala, Rakesh Singh assaulted by lathi and Labda and Vakil Manjhi and Rampatiya Devi assaulted him by Labda to her husband and when she and another wife of informant, namely, Kismati Devi came to save the informant, they were also assaulted by the accused persons. 14. 14. It appears that except these two witnesses, no other witness either independent or related have been examined in this case and though one Amardeo Manjhi, who was said to have been treating the son of informant on the day of occurrence, has been examined but his evidence only shows about the fact that Vakil Manjhi and Rampatiya Devi started abusing the informant Rajnath Manjhi and appellant Vakil Manjhi assaulted him by danda and one to two unknown persons were armed with bhala and, thereafter, he had fled away from there. 15. PW-2 is the Dr. Manju Singh, who examined Rampati Devi and Kismati Devi, wives of informant and found following injuries on the person of Rampati Devi:- (a) Abrasion on dorsum of left forearm. (b) Swelling 3” x 3” on front of left thigh. (c) Swelling 2½” x 2” on left shoulder. In her opinion all the injuries were caused by hard and blunt substance and were simple in nature. 16. It appears that in this case, one Kismati Devi another wife of informant has also received injuries and doctor had found all the injuries sustained by her was simple in nature. However, since this witness has not been examined, therefore, it will not be proper to deal with the injury caused to her. 17. PW-5 is another Doctor, namely, Mahadeo Singh, who had examined the informant Rajnath Manjhi and had found following injuries:- (i) One penetrated wound 1” x ¼” muscle deep below right eye, simple in nature caused by sharp pointing weapon. (ii) Haemotoma 2” x 1” with scratch on that haemotoma ¼” x 1/8” on the forehead. (iii) Bruise 2” x 1” on the right side of the back. (iv) Bruise 2” x 1” on the right shoulder. In the opinion of doctor, all the injuries except injury no. (i) were simple in nature caused by hard and blunt substance. 18. (ii) Haemotoma 2” x 1” with scratch on that haemotoma ¼” x 1/8” on the forehead. (iii) Bruise 2” x 1” on the right side of the back. (iv) Bruise 2” x 1” on the right shoulder. In the opinion of doctor, all the injuries except injury no. (i) were simple in nature caused by hard and blunt substance. 18. Considering the evidence adduced on behalf of the prosecution, it appears that PW-4 has tried to show that he was assaulted by Rakesh Singh by bhala but there is no such story in the F.I.R and as such it appears to be an improvement and even in statement of appellant Rakesh Singh under Section 313, he has not been asked abut the assault by bhala rather he was asked about assault by Labada, whereas, the F.I.R itself shows that he has assaulted the informant by Labada and allegation is of assault bhala is against Maheswari Singh and PW-1, who is the wife of informant (PW-4) has also stated about assault to informant by bhala by Maheshwari Singh but the trial court has not considered the aforesaid discrepancy. Apart from that there is nothing available on record to show that any of the injuries were grievous in nature but in spite of that the trial court has convicted the appellants under Section 326/34 of the IPC and further trial court on the same allegation, has acquitted the co-accused Maheshwari Singh, against whom there was allegation of assault by bhala in F.I.R. and evidence of PW-1 also shows that the allegation of assaulting the informant by bhala is against Maheshwari Singh. 19. On the other hand, on consideration of prosecution evidence, it appears that there is allegation of assault against Rakesh Singh and Vakil Manjhi in the evidence of PW-1 and F.I.R. by Labada and Lathi respectively and, therefore, the appellants at best could have been convicted under Section 323/34 of the IPC and not under Section 326/34 IPC and accordingly, the conviction of appellants is altered to a conviction under Section 323/34 of the IPC. 20. 20. So far sentence of the appellants are concerned, it has been submitted by learned counsel for the appellants that the occurrence is of the year 1994 and appellant Vakil Manjhi was aged about 55 years and appellant Rakesh Singh was aged about 30 years on the date of judgment i.e. in the year 2004 and 24 long years have elapsed since the occurrence and they have also remained in custody for three weeks as such a lenient view may be taken and their sentences may reduced to the period already undergone in judicial custody. I find force in the submission of learned counsel for the appellants that 24 years have elapsed since the date of occurrence and, therefore, no fruitful purpose will be served to send the appellants behind the bars. Accordingly, the sentence of the appellants is modified to a sentence already undergone by them in the judicial custody. 21. With the aforesaid modification in conviction and sentence, this appeal is disposed of.