JUDGMENT : Sanjay Prasad, J. 1. This Criminal Appeal has been filed on behalf of the appellants challenging the judgment of conviction and sentence dated 25.01.2007 passed by Sri G.K. Varma, learned Sessions Judge, Palamau at Daltonganj in Sessions Trial No. 65 of 2004 whereby and whereunder the appellants namely, Radhey Shyam Mishra, Nagina Mishra, Subhago Devi @ Subhaga Devi, Sandhya Devi @ Sabya and Nevita @ Babita Kumari have been convicted by the learned Sessions Judge, Palamau at Daltonganj for the offence under Section 323 of the INDIAN PENAL CODE and sentenced the appellant nos. 1 and 2 to undergo R.I. of six(6) months, whereas the appellant nos. 3 to 5 were released on furnishing separate probation bonds of Rs. 5,000/- with two sureties under Section 4 of the Probation of Offenders Act, 1958, binding themselves to maintain peace be of good behaviour for period of two years. 2. The informant, namely, Ravindra Mishra had lodged the FIR on 09.10.2001 stating therein that on 08.10.2001, the accused Subhaga Devi uprooted Sisam tree (Sappling) from behind informant’s house on eastern side. When informant’s mother, namely, Dulari Devi and wife Reeta Devi objected the said act, the accused Subhaga Devi and Babita Kumar along with one Kapuran Kuer started abusing informant’s mother and wife. When the informant returned from Garhwa in the evening, where he worked in Vishwakarma Electro Homeopath Medical College, he was told about the said occurrence. Then in the morning on 09.10.2001, he asked accused Nagina Mishra as to why the Sisam sapplings have been uprooted at which the said accused started abusing and assaulting him by means of Lathi, which hit on this head with a view to kill him, causing serious injury on his head. When informant’s mother came out of her house to see the informant, the wife and daughter of Nagina Mishra entered informant’s house took out a Lathi from there and handed it over to accused Radhey Shyam Mishra, who assaulted the informant’s mother and wife by means of said Lathi and caused serious injuries on their head. At the same time, accused Subhaga Devi, Babita Kumar and Sabya Devi also assaulted the informant’s mother and wife on their back by means of sticks (Danda) while the accused Subhaga Devi snatched a silver chain from the neck of informant’s wife. 3. Heard Mr. Ajay Kumar Pathak, learned counsel for the appellants and Mr. At the same time, accused Subhaga Devi, Babita Kumar and Sabya Devi also assaulted the informant’s mother and wife on their back by means of sticks (Danda) while the accused Subhaga Devi snatched a silver chain from the neck of informant’s wife. 3. Heard Mr. Ajay Kumar Pathak, learned counsel for the appellants and Mr. V. S. Sahay, learned APP for the State. 4. Learned counsel for the appellants has submitted that the impugned judgment and sentence passed by the learned Court below is legal, arbitrary and not sustainable in law. However, learned counsel for the appellants has further submitted that he is not pressing the appeal on merit and he is pressing an arguing the case on the point of sentence imposed upon the appellants by the learned Trial Court below. 5. Learned counsel for the appellants further submitted that the appellant nos. 3 to 5 have been given the benefit of under Section 4 of the Probation of Offenders Act, however, the appellant nos. 1 and 2, namely, Radhey Shyam Mishra and Nagina Mishra can also be given the benefit under Section 4 of the Probation of Offenders Act, 1958 and more than 20 years have been passed from the date of occurrence and they are also old aged persons. 6. On the other hand, learned APP has raised no objection. 7. Perused the Lower Court Records and considered the submissions of both the sides. 8. It transpires that the informant, namely, Ravindra Mishra had lodged the FIR against the appellants on 09.10.2001 for the offence of assault taking place on 08.10.2001 under Sections 307 , 341, 323, 448, 504, 379 and 34 of the I.P.C. and on the basis of which Bishrampur P.S. Case No. 100 of 2001 was instituted. 9. The police, after investigation has submitted the charge sheet under Sections 34 1, 323, 307, 448, 504 and 34 of the I.P.C. against the appellants on 22.03.2002 before the learned Chief Judicial Magistrate, Palamau at Daltonganj and the learned Chief Judicial Magistrate, Palamau at Daltonganj had taken cognizance against the appellants under Sections 34 1, 323, 307, 448, 504 and 34 of the I.P.C. 10. It transpires that the charges were framed against appellant no. 1 Radhey Shyam Mishra and appellant no. It transpires that the charges were framed against appellant no. 1 Radhey Shyam Mishra and appellant no. 2 Nagina Mishra under Section 307 of the I.P.C. on 27.08.2004 by then the learned Sessions Judge, Palamau at Daltonganj and to which they pleaded not guilty and claimed to be tried. However, the charges were framed against the appellant nos. 3 to 5, namely, Subhago Devi @ Subhaga Devi, Sandhya Devi @ Sabya and Nevita @ Babita Kumari under Section 323 of the I.P.C. on 27.08.2004 and to which they also pleaded not guilty and claimed to be tried. Separate charges were also framed against the appellant no. 3 Subhago Devi @ Subhaga Devi and appellant no. 5 Nevita @ Babita Kumari under Section 448 of the I.P.C. on 27.08.2004 and to which they are also pleaded not guilty and claimed to be tried. Separate charge was also framed against the appellant no. 3 Subhaga Devi @ Subhaga Devi under Section 379 of the I.P.C. on 27.08.2004 and to which she also pleaded not guilty and claimed to be tried. 11. It transpires that during trial, the prosecution got five examined five (5) witnesses, who are as follows: (i) P.W.-1 is Dulari Devi (i.e., Mother of the formant), (ii) P.W.-2 is Reeta Devi (i.e., Wife of the Informant), (iii) P.W.-3 is Ravindra Mishra (i.e., Informant), (iv) P.W.-4 is Dr. Nand Kishore Rajak and (v) P.W.-5 is Ram Kumar Pandey (i.e., Constable attached with the Public Prosecutor). 12. The Prosecution, in support of its case got exhibited documents, which are as follows: (i) Ext.-1 is the written report. (ii) Ext.-2, 2/1 and 2/2 are the injury reports of the Ravindra Mishra, Reeta Mishra and Dulari Mishra respectively. (iii) Ext.-3 is the Formal FIR. 13. It transpires that the appellants were examined under Section 313 Cr.P.C. on 17.11.2006 by the learned Court below and the appellants had denied the circumstances put forth before them. 14. It transpires that no defence witness has been examined by defence in support of their case, however, the following documents was marked as exhibit on behalf of the defence, which is as follows: (i) Ext.-A is the certified copy of judgment passed by the learned passed by A.D.J., F.T.C.-III in S.T. Case No. 238 of 2002 on 28.02.2004. 15. 14. It transpires that no defence witness has been examined by defence in support of their case, however, the following documents was marked as exhibit on behalf of the defence, which is as follows: (i) Ext.-A is the certified copy of judgment passed by the learned passed by A.D.J., F.T.C.-III in S.T. Case No. 238 of 2002 on 28.02.2004. 15. Thereafter, the learned Court below has convicted the appellants for the offences under Section 323 of the INDIAN PENAL CODE and sentenced appellant nos. 1 and 2 to undergo R.I. for six(6) months, however, the learned Court below had directed that the appellant no. 3 to 5, namely, Subhago Devi @ Subhaga Devi, Sandhya Devi @ Sabya and Nevita @ Babita Kumari to be released on probation on their furnishing separate probation bonds of Rs. 5,000/- with two sureties of the like amount each under Section 4 of the Probation of Offenders Act, 1958 binding themselves to maintain peace and be of good behaviour for a period of two years, failing which they shall be liable to simple imprisonment for six months. 16. It transpires from the Trial Court Record that the appellant nos. 3 to 5, namely, Subhago Devi @ Subhaga Devi, Sandhya Devi @ Sabya and Nevita @ Babita Kumari have already furnished their respective bonds on 25.01.2007 itself. Even, the learned counsel for the appellants has submitted that the appellant nos. 1 and 2 may also be directed to furnish the bonds and the appeal has become infructuous for the appellant nos. 3 to 5, namely, Subhago Devi @ Subhaga Devi, Sandhya Devi @ Sabya and Nevita @ Babita Kumari. However, this Court finds, so far appellant nos. 4 and 5, namely, Sandhya Devi @ Sabya and Nevita @ Babita Kumari are concerned, they were young ladies about 22 to 24 years on the date of conviction and hence appreciation of evidence of prosecution witnesses is necessary. 17. P.W.- 1 Dulari Devi is the mother of the informant and stated in her evidence that the appellant no. 1, Radhey Shyam Mishra has assaulted by Lathi on her head and appellant no. 2 Nagina Mishra has assaulted Ravindra Mishra (informant) by Lathi on his head due to which he sustained bleeding injury and she stated that appellant no. 3 Subhago Devi @ Subhaga Devi snatched her silver chain and appellant no. 1, Radhey Shyam Mishra has assaulted by Lathi on her head and appellant no. 2 Nagina Mishra has assaulted Ravindra Mishra (informant) by Lathi on his head due to which he sustained bleeding injury and she stated that appellant no. 3 Subhago Devi @ Subhaga Devi snatched her silver chain and appellant no. 1 Radhey Shyam Mishra had assaulted her by means of Lathi due to which she sustained head injury. No specific allegations against the appellant no. 4 and 5, namely, Sandhya Devi @ Sabya and Nevita @ Babita Kumari. 18. P.W.-2 Reeta Devi is the injured and wife of the informant and she also stated that the appellant nos. 3, 4 and 5 came to her door and abused her and her mother-in-law, then she closed her door and went inside. She also stated that appellant no. 2 had assaulted her husband by lathi due to which her husband sustained head injury. She further stated that appellant nos. 3, 4 and 5 assaulted her by their hands. She further stated that appellant no. 1 Radhey Shyam Mishra has assaulted her mother-in-law (Dulari Devi) by means of Lathi due to which she also sustained head injury. 19. P.W.-3 Ravindra Mishra is the Informant, who also stated that appellant no. 2 had also assaulted him by lathi due to which he sustained head injury and appellant no. 1 Radhey Shyam Mishra has assaulted his mother by means of Lathi and his mother sustained head injury. There has no specific allegations levelled against the appellant nos. 3 to 5. 20. P.W.-4 Dr. Nand Kishore Rajak is the Doctor, who has foun injuries, as it reveals from the impugned judgment, which are as follows: "The injured Ravindra Mishra was found to have sustained lacerated wound over vertex of scalp and two bruises over back of chest on both scapula regions. Injured Reeta Devi was found to have an abrasion on her right wrist. All the injuries are simple in nature and caused by hard and blunt substance. The injured Dulari Devi was found to have sustained four injuries, one of which was a lacerated wound over vertex of scalp, another bruises over back of lumber region, complain of pain in the abdominal wall and pain and swelling in left elbow. Injury nos. All the injuries are simple in nature and caused by hard and blunt substance. The injured Dulari Devi was found to have sustained four injuries, one of which was a lacerated wound over vertex of scalp, another bruises over back of lumber region, complain of pain in the abdominal wall and pain and swelling in left elbow. Injury nos. 1 to 3 was found in simple in nature, opinion as to the 4 th injury was kept reserved awaiting X-ray report in respect thereof. However, all the injuries were found to have been caused by hard and blunt substance. All the three injury Report were proved by him as Ext. 2 to 2/2 respectively". 21. P.W.-5 Ram Kumar Pandey is a Constable attached with the Public Prosecutor and he had proved the Formal FIR marked as Exhibit-3. 22. It transpires that I.O. of this case has not been examined. It transpires that the Formal FIR has been proved by the Constable attached with the Public Prosecutors and not competent to proof the FIR. 23. It reveals from the injury reports marked as Ext. 2 to 2/2 respectively, the injuries sustained by the injured persons were simple in nature. 24. It transpires from the evidence of P.W.-1 that there is allegation of assaulting the informant, P.W.-3 and upon her by the appellant nos. 1 and 2 and no specific allegations for assault is levelled against the appellant nos. 3 to 5. 25. P.W.-2 is Reeta Devi, who is the wife of the informant and stated only that appellant nos. 3 to 5 have assaulted by her hands. The allegations are superficial in nature and she had also alleged the appellant nos. 1 and 2 have assaulted her husband and her mother-in-law. Thus, inference can be drawn in favour of appellant no. 3 to appellant no. 5. 26. Even, from scrutinizing the evidence of P.W.-3, who is the informant, it is evident that he mainly alleged that the appellant nos. 1 and 2 has assaulted him and his mother by means of Lathi due to which they sustained head injuries. 27. Under circumstance the conviction of the appellant nos. 3 to appellant no. 5. 26. Even, from scrutinizing the evidence of P.W.-3, who is the informant, it is evident that he mainly alleged that the appellant nos. 1 and 2 has assaulted him and his mother by means of Lathi due to which they sustained head injuries. 27. Under circumstance the conviction of the appellant nos. 3, 4 and 5, namely, Subhago Devi @ Subhaga Devi, Sandhya Devi @ Sabya and Nevita @ Babita Kumari are set aside and they are acquitted from the offences under Sections 34 1, 323, 307, 448, 504 and 34 of the I.P.C. and they are also discharged from the liabilities of their respective bail bonds. 28. However, the conviction of the appellant nos. 1 and 2 are maintained under Section 323 of the INDIAN PENAL CODE , however, it appears that this is case of the year 2001 and more than 23 years have been lapsed and they are old aged persons and they can be given benefit under Section 4 of the Probation of Offenders Act. 29. 1 and 2 are maintained under Section 323 of the INDIAN PENAL CODE , however, it appears that this is case of the year 2001 and more than 23 years have been lapsed and they are old aged persons and they can be given benefit under Section 4 of the Probation of Offenders Act. 29. Section 4 of the Probation of Offenders Act, 1958 reads as under:- “ Section 4 :- Power of court to release certain offenders on probation of good conduct.— (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. (2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified there in, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender. (4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. (5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.” 30. Considering the facts and circumstances of this case that the appellant nos. 1 and 2 have faced rigors of trial for more than twenty (20) years, this Court can take lenient view and as such, the appellant no.1- Radhey Shyam Mishra and appellant no. 2 Nagina Mishra are extended the benefit of Section 4 of the Probation of Offenders Act, 1958 and accordingly, their sentence is modified and the appellant nos. 1 and 2 are directed to be released on furnishing probation bond of Rs, 5000/- each with one surety for a period of one year by giving the benefit of Section 4 of the Probation of Offenders Act, 1958 and to appear and receive sentence when called upon during such period, not exceeding one year, and in the meantime, the appellant nos. 1 and 2 are directed to keep the peace and be of good behaviour. 31. 1 and 2 are directed to keep the peace and be of good behaviour. 31. With the above observations and directions, this Criminal Appeal (SJ) No. 223 of 2007 is allowed in part. 32. Let a copy of this judgment along with original Trial Court Record be sent back to the court concerned for information and needful. Pending I.A, if any, stands disposed of.