Heard learned counsel for the petitioners and learned counsel for the State.

2. The petitioners are aggrieved by the Judgment dated 25.2.2003 passed by learned 1st Additional Sessions Judge, Deoghar, in Cr. Appeal No. 11 of 1999 / 108 of 2002, whereby the appeal filed against the Judgment dated 12.2.1999 passed by Shri A. K. Yadav, learned Judicial Magistrate 1st Class, Madhupur at Deoghar, in G.R. No. 516 of 1995 / T.R. No. 238 of 1999, was dismissed by the Appellate Court below with modification in sentence. It may be stated that the trial Court had found the petitioners guilty for the offence under Sections 341/323/324/326/504/34 of the I.P.C., and had convicted them for the same. Upon hearing on the point of sentence, the Trial Court had denied the privilege of the Probation of Offenders Act to the petitioners and had sentenced them to undergo simple imprisonment for one year each for the offence under Sections 341/323/504/34 of the I.P.C., and further simple imprisonment for two years each for the offence under Section 324/326/34 of the I.P.C. Upon appeal, the learned Appellate Court below set-aside the conviction of the petitioner Jugal Kishore Gupta for the offence under Section 326 of the I.P.C., but maintained his conviction for the other offences and gave him the benefit of Probation of Offenders Act, directing him to enter into the probation bond of Rs.2000/-with two sureties of the like amount each for keeping peace and maintaining good behaviour for a period of two years. The conviction and sentence of the petitioner Gulu Gupta @ Kamal Kishore Gupta was upheld by the learned Appellate Court below.

3. From perusal of the lower court records, it appears that petitioners were made accused in Madhupur P.S. Case No.223 of 1995, G.R. No.516 of 1995 for the offence under Section 341/323/324/326/504/34 of the I.P.C., on the allegation that on 8.11.1995, while the informant was teaching the students at his house, both the accused petitioners along with other unknown persons came and assaulted the informant with some pointed object, causing injuries over his right eyebrow.

4. Upon investigation, the police submitted the charge-sheet and in course of trial, charge was framed against both the petitioners for the offence under Sections 341/323/324/504/ 34 of the Indian Penal Code. Against Gulu Gupta, Charge was also framed under Section 326/34. Charge under Section 326/34 was not framed against the petitioner Jugal Kishore Gupta. As such, the Appellate Court below has set-aside the conviction of the petitioner Jugal Kishore Gupta for the offence under Section 326/34 of the IPC.

5. It appears from the Lower Court Records that seven witnesses were examined on behalf of the prosecution including the doctors and the I.O. Out of the material witnesses examined on the point of occurrence, the prosecution case has been supported only by PW-1 Md. Abid Hussain and PW – 3 Jugal Narayan Sah, the informant in this case. Other witnesses on the point of occurrence have turned hostile. It also appears that the two doctors, who had examined the informant’s injuries, were examined as PW–5 Dr. Bishwanath Das and PW–6 Dinesh Kumar Pathak, who was posted at Sadar Hospital, Deoghar, and he has proved the injury report issued by him and has deposed that there was a fracture on the frontal bone, which was grievous in nature. In his cross examination he has stated that the fracture was visible without any X-ray. PW – 7 is the I.O. in the case.

6. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein the petitioner Gulu Gupta had stated that on the date of occurrence, actually the informant had assaulted the defence side. It also appears that the defence has also examined two witnesses including a doctor as DW -1, who had proved the injuries on the petitioner Gulu Gupta @ Kamal Kishore Gupta, whom he had examined on the date of occurrence itself, i.e. 8.11.1995. DW – 2 is petitioner Gulu Gupta @ Kamal K