O. P. PRADHAN, J. ( 1 ) THERE are two appellants in this appeal which is directed against the judgment and order dated 27/6/1979 passed by II Additional Sessions Judge, Bijnor in Sessions Trial No. 113 of 1977 whereby the two appellants were convicted of the offence under Section 326 read with Section 34 I. P. C. , and sentenced to three years TR. I. each, while the remaining eight coaccused who were put on trial along with the appellants were acquitted by the learned II Additional Sessions Judge. ( 2 ) THE prosecution case as unfolded during trial is as under: About 15 months before the occurrence, Jogendra Singh, son of Gurdeep Singh complainant was done to death and Ratan, Raghubir Singh, Dheera, Gurdeep Singh, another Dheera, Balvendra Singh and Balwant were nominated as the assailants in that behalf. That case was pending trial on the date of occurrence which took place on 1/9/1976. That case was being prosecuted by Gurdeep Singh complainant He was threatened with dire consequences in case he did not stop doing Pairvi. At about 7 p. m. on the day of occurrence, the complainant Gurdeep Singh was accosted by the two appellants along with Balwant Singh, Tehal Singh, Gurdeep Singh, Dalbir Singh, Balvendra, Malkeet, Prem Singh and Jogendra Singh near the Banyan tree in Jamanwala. Tehal Singh and Prem Singh gave exhortation and all these ten accused persons surrounded the complainant Gurdeep Singh, who thereupon raised a. hue and cry which attracted to the scene of occurrence Mahendra (complainants son), Jaswant Kaur (complainants wife), Gurnam Kaur and Surendra Kaur (the two daughters of the complainant) and witnesses, Suhel Singh, Gyan Singh, Lala Shanti Bux and Hukum Singh. Tehal Singh dealt a blow with his sword at the complainants arm and Gurdeep Singh also gave another blow with his sword which landed on the back of the complainant. Mahendra was likewise given blows with their swords by the two appellants and Jogendra Singh. The complainant Gurdeep Singh and his son Mahendra received injuries and fell down on the ground. Accused Balwant Singh was also armed with a sword and the remaining accused Dalbir Singh, Balvendra, Malkeetand Prem Singh were armed with lathies. The lathiwalas caused injuries to Smt. Gurnam Kaur and Smt. Jaswant Kaur when they tried to intervene. The complainant Gurdeep Singh and his son Mahendra received injuries and fell down on the ground. Accused Balwant Singh was also armed with a sword and the remaining accused Dalbir Singh, Balvendra, Malkeetand Prem Singh were armed with lathies. The lathiwalas caused injuries to Smt. Gurnam Kaur and Smt. Jaswant Kaur when they tried to intervene. ( 3 ) THIS incident was reported at Police Station Afazalgarh at 10 a. m. by the complainant, Gurdeep Singh, Investigation followed. Bloodstained and simple earth were also seized from the place of occurrence during investigation and the injured were medically examined at Afazalgarh dispensary on 2/9/1976 by Dr. B. C. Sharma (P. W. 3 ). After completing the investigation, a charge-sheet for prosecution of the ten accused persons nominated in the First Information Report was submitted by the Investigating Officer. The case was committed to the Court of Sessions on 1/6/1977 by the Chief Judicial Magistrate, Bijnor. ( 4 ) THE learned II Additional Sessions Judge framed charges Under Sections 307 read with 5. 149 as also under Sections 147 and 148 I. P. C. against all the ten accused-persons including the two appellants. All the accused pleaded not guilty and claimed trial. In support of its case, the prosecution examined Gurdeep Singh, P. W. 1. and Mahendra Singh, P. W. 2 (both injured) as eye-witnesses and produced Dr. B. C. Shatma (P. W. 3), S. I. B. S. Rana (P. W. 4), 1. 0. Karan Singh (P. W. 5), H. C. Brajpal Singh (P. W. 6) and Dr. N. N. Pandey (P. W. 7) as formal witnesses. None of the accused persons led any evidence in defence. ( 5 ) THE learned II Additional Sessions Judge on a consideration of the evidence adduced before him, acquitted Balwant Singh, Tehal Singh, Gurdeep Singh, Dalbir Singh, Balvendra Singh, Malkeet Singh, Prem Singh and Jogendra Singh of the charges levelled against them but convicted the two appellants of an offence under Section 326 read with Section 34 I. P. C. , and sentenced each of them to undergo three years R. I. The two appellants were, however, acquitted of the remaining charges levelled against them. Feeling aggrieved against their conviction and sentence, Dheera and Raghubir Singh preferred this appeal. ( 6 ) I have heard learned Counsel for the parties and perused the record. Feeling aggrieved against their conviction and sentence, Dheera and Raghubir Singh preferred this appeal. ( 6 ) I have heard learned Counsel for the parties and perused the record. Learned Counsel for the appellants contended that even though Mahendra Singh is said to have been assaulted at the hands of the two appellants and Jogendra Singh with their swords, the learned II Additional Sessions Judge on the same material and evidence on record chose to acquit Jogendra Singh but convict the two appellants under Section 326 read with Section 34. I. P. C. Learned Counsel for the appellants strenuously contended that the two appellants cannot be convicted on the same evidence which was relied upon the learned II Addi. Session Judge to acquit the co-accused Jogendra Singh in respect of the assault allegedly made on Mahendra Singh. It has been further urged by the learned Counsel for the appellants that the averments made in the bail applications of appellants Dheera and Raghubir Singh as per Exs. Ka-19 and Ka-18 could not be made the basis for conviction of the two appellants under Section 326 read with Section 34 I. P. C. , once the primary evidence adduced by the prosecution in relation to the alleged assault made on Mahendra Singh as not utilized for the conviction of co-accused Jogendra Singh. ( 7 ) A perusal of the judgment in appeal would indicate that the learned II Additional Sessions Judge has founded the conviction of the two appellants under Section 326 read with 5. 34 I. P. C. , for the assault on Mahendra Singh merely on some averments made in the bail application filed on behalf of the appellant Dheera as per Ex. Ka-19 and bail application filed on behalf of the appellant Raghubir Singh as per Ex. Ka-18, even though the primary evidence which was adduced on behalf of the prosecution in support of its case in respect of the assaults made on the injured persons on the side of the prosecution was not accepted. Accordingly, the sole question for determination in this appeal is if the appellants conviction under Section 326 read with 5. 34 I. P. C. could be founded merely on some averments made in the bail applications referred to above. Accordingly, the sole question for determination in this appeal is if the appellants conviction under Section 326 read with 5. 34 I. P. C. could be founded merely on some averments made in the bail applications referred to above. ( 8 ) IT is trite that the prosecution can succeed on the basis of its own evidence and once it is found that the prosecution evidence is not acceptable in relation to any particular accused, the inculpatory statement made, if any, by that accused cannot be utilized by the Court to the exclusion of exculpatory statement unless the same is clear, unambiguous and unqualified. It is also a cardinal principle of criminal justice that the Court must act with caution and circumspection before accepting such an inculpatory statement of the accused. The learned II Additional Sessions Judge did not consider it advisable to accept the prosecutiont evidence regarding the assault made on Mahendra Singh at the hands of accused Jogendra Singh and acquitted him of the, charge levelled in that behalf. The same evidence could not be utilized by the Court below for founding the conviction of the two appellants in relation to the assault allegedly made by them on Mahendra Singh. ( 9 ) SO far as the averments of the bail applications filed on behalf of these two accused/appellants and which have been implicitly relied upon by the learned II Additional Sessions Judge go, it may be said that they are neither clear, unambiguous nor unqualified insofar as the question of making an assault on Mahendra Singh by these two accused/appellants in concerned. The averments made in the bail applications of these two appellants have to be read as a whole and when so read, it cannot be said that the averments relied upon by the learned II Additional Sessions Judge make out a case for assault made on Mahendra Singh at the hands of these two appellants so as to warrant their conviction under Section 326 read with Section 34 I. P. C. The averments made in the bail applications of the two appellants-leave much to be desired and the learned II Additional Sessions Judge went wholly wrong in basing the conviction of the two appellants under Section 326 read with Section 34 I. P. C. on mere averments of the bail applications referred to earlier. Consequently, it is not possible for ibis Court to sustain the conviction of the two appellants under Section 326 read with Section 34 I. P. C. recorded by the learned II Additional Sessions Judge. , ( 10 ) IN the result, the appeal is accepted. The conviction and sentence of the appellants Dheera and Raghubir Singh under Section 326 read with 34 I. P. C. recorded by the learned II Additional Sessions Judge, Bijnor in Sessions Trial No. 113 of 1977 are hereby set aside and both the appellants are acquitted of the charges in respect of the same. The appellants need not surrender to their bail bonds which are hereby cancelled and the sureties discharged. Appeal allowed. .