Hon’ble Rajul Bhargava, J.—Heard Sri Arvind Agrawal, learned counsel for the appellants and Smt. Archana Singh, learned AGA for the State-respondent.

2. The instant appeal has been filed by the appellants against the judgement and order dated 1.12.1982 passed by IInd Additional District and Session Judge, Gorakhpur in S.T. No. 374 of 1980 convicting and sentencing the appellant No. 1 to three years R.I. under Section 308/34 IPC and one year R.I. under Section 323/34 IPC, sentencing the appellant No. 2 to three years R.I. under Section 308 IPC and one year R.I. under Section 323 IPC, sentencing the appellant No. 3 to three years R.I. under Section 308/34 IPC and to one year R.I. under Section 323 IPC. One of the accused Dayaram, who was also tried alongwith the appellants stood acquitted for lack of evidence by the trial Court. The appellant Ram Awash died during the pendnecy of the appeal and his appeal stood abated by order dated 3.4.2014.

3. The brief facts of the case according to the prosecution are that on 20.9.1978 at about 6.00 pm accused Dayaram was grazing his cattles in the Dhan field of the informant Ram Daras, which was objected by informant’s father Ganesh but Dayaram did not pay any heed to the same, therefore the informant’s father diverted the cattles for being taken to the cattels pound, the accused Dayaram went to his house and came alongwith other family members. The other accused in the present case armed with Lathi danda; the appellant Mahesh is said to have given lathi blow on the head of the Ganesh (informant’s father) causing serious injuries to him and when the informant Ram Daras tried to save his father he was given lathi blow by accused Rajaram and Mahesh. On 21.9.1978 PW-4 informant Ram Daras lodged first information report at P.S. Belghat at 7.15 am. Both the injured were examined by PW-5 Dr. N.S. Shukla on 20.9.1978 at 10.00 pm to 10.15 pm respectively. He noted one lacerated wound 1 x 1.4 Inch bone deep of injured Ganesh and three contusion were found on the person of Ram Daras (PW-4). The injury of Ganesh was kept under observations and advised for x-ray. The x-ray report of the injured Ganesh has been proved and the same is on record, which indicates that no bony lesion or any internal damage was found. After investigation charge-sheet was submitted by PW-7 SI Bir Bahadur against the accused under Section 323, 308/34 IPC.

4. The prosecution in order to prove its case examined four witnesses of fact PW-1 Ganesh, PW-2 Ram Samujh, PW-3 Bhukkal, who were named in the first information report and are said to have witnessed the incident and did not support the prosecution case and were declared hostile. PW-4 Ram Daras is the informant and injured in the present case, who had supported the prosecution story. Rest witnesses are formal in nature.

5. Learned counsel for the appellants contended that no reliance can be placed on the testimony of PW-1 Genesh and PW-4 Ram Daras inasmuch as there are several material inconsistencies and contradictions between their statements. Secondly it is next contended that the F.I.R. was lodged next day for which prosecution has not offered any plausible and satisfactory explanation. Lastly it is contended that taking prosecution case as it is and in view of the medical report of both the injured, offence under Section 308 IPC is not made out. Learned counsel after arguing at some length fairly conceded that he does not want to press the instant appeal on merits as it relates to the year 1978 and more than 39 years have been elapsed the Court may consider the case of the surviving appellants on the questions of sentence.

6. Learned AGA has no objection to the submissions made by counsel for the appellants.

7. Learned counsel for the appellants has submitted that in view of the fact that role of giving lathi blow on the head of injured Ganesh is attributed to the appellant Mahesh, who, at present, is aged about 75 years and there is no repetition of blow. Beside