Ramesh Chand Malviya, J. – Heard Mr. Sanjeev Kumar, Amicus for the appellants and Ms. Anita Kumari Singh, learned APP for the State.

2. The present appeal has been filed under Section 11(2) of the Probation of Offenders Act, 1958 challenging the Judgment of conviction and order of sentence dated 24.09.2013 in Sessions Trial No. 386 of 2010 arising out of Durgawati P.S. Case No. 155 of 2009 passed by the learned Adhoc Additional District Judge-I, Kaimur have convicted the appellants under Sections 323, 325, 341 and 504 read with 34 of the Indian Penal Code (hereinafter referred as ‘IPC’) and sentenced them to furnish the personal bond of Rs. 5,000/- each under Section 4 of the Probation of Offenders Act, 1958 for maintaining the peace for 3 years and during that period they will keep away from any dispute with informant.

3. The brief facts leading to the filing of the present appeal on the basis of the fardbeyan of the informant, is that informant O.P. No.2 was returning to his house after attending the call of nature at 5’o clock in the morning then all the appellants beside their two daughters coming from same family caught him dragged him inside the house and after tiding him assaulted by means of lathi and in that transaction it is the accused Sunil Gupta who gave a blow of the edge of the Tangi upon the head causing the cut bleeding injury also besides the other injuries as the accused persons had strong doubt in their mind that it was the informant who used to discharge the latrine at their Darwaja.

4. On the basis of the aforesaid fardbeyan of the informant, FIR was lodged and after investigation the chargesheet was submitted under Sections 323, 324, 307, 341, 342 and 504 read with 34 of the IPC and after taking cognizance the case was committed to the Court of session on 22.09.2010.

5. The prosecution has altogether examined seven witnesses in this case. Out of them, PW-1 Murahu Sha, PW-2 Arvind Gupta, PW-3 Anil Kumar Gupta, PW-4 Sunil Gupta (Informant), PW-5 Bageshwari Kunwar, PW-6 Vishwanath Sharma (Investigating Officer) and PW-7 Dr. Shanti Kumar Manjhi. Out of these, PW-1 Murahu Sah and PW-5 Bageshwari Kunwar have been declared hostile.

6. Learned counsel for the appellants submitted that that the impugned judgment of conviction and order of sentence are not sustainable in the eye of law or on facts. Learned trial Court has not applied its judicial mind and erroneously passed the judgment of conviction and order of sentence and from perusal of the evidences adduced on behalf of the prosecution it is crystal clear that the PW-2 and 3 are none but the full brothers of the informant have tried to show themselves as an eye witness to the occurrence and also claimed the because of their presence in the need of the assault, the victim could not get the more injuries but the injury which was sustained by him was sufficient to loose his physical balance and that is why he was firstly taken to the nearest hospital who after given the first aid treatment referred for better care to B.H.U. where the injury sustained upon head though not found caused by the sharp edged Tangi but found grievous in nature and rest two injuries found simple in nature with swelling and abrasion certainly on non-vital part that is on leg and finger.

7. He further submitted that PW-2 and 3 have claimed that they had seen the occurrence in presence of their father but surprisingly enough the father was not examined and more over they also not claimed that they have tried to save the victim which was the natural reaction of any person in such circumstances thus, it can safely been said that actually they were not at all the eye witness to the occurrence. So for the other witnesses are concerned who have been treated as a formal witness and the doctor who did examined the victim did not find any sharp edged cut injury rather caused by the hard blunt object so the suggestion as advanced by the defence that the victim sustained injuries due to sudden fall on th