Judgment R.N.Sahay, J. 1. This is an appeal against the judgment and order dated 26th May, 1989 passed by Sri D.N. Pathak, 1st Additional Sessions Judge, West Champaran, Bettiah in Sessions Trial No. 227/85, whereby the appellant No. 1 Sheo Nath Mahto has been convicted under Secs. 307 and 148 of the Indian Penal Code and has been sentenced to undergo R.I. for seven years and two years respectively. The remaining six appellants have been convicted under Secs. 323 and 147 of the Indian Penal Code and have been sentenced to imprisonment for one year under each count. 2. The appellants were tried and convicted in the following circumstances. On 1-8-1984 at 5.00 p.m., Bijay Shankar Prasad was leading a Mahabiri Jhanda Procession in village Lalgarh which is about 8 kms from Bettiah Muffasil Police Station. When the procession reached near the door of Mangal Sah, it is alleged that appellant Sheo Nath Mahto dragged Bijay Shankar Prasad and after abusing him assaulted him with Bana, Bijay Shankar Prasad fell down. The remaining appellants except appellant Raghunath Mahto were armed with lathi and Raghunath Mahto was armed with bhala. It is alleged that the remaining appellants also assaulted Bijay Shankar Prasad after he fell down. Cause of occurrence was that appellant Sheo Nath Mahto was leading such Mahabiri Jhanda Procession and when the procession reached near the temple situated in front of the door of Mukhia of Lalgarh, where each year Akhara is performed and the informant Bijay Shankar Prasad insisted that the Tasa would be played there and their Akhara would also be arranged there on which Shiv Nath Mahto and the Sarpanch did not agree to it and they insisted that the other party should follow them and they forcibly took the person playing the Tasa. As soon as the procession reached near the door of Mangal Sah the incident took place. 3. According to the defence version, Sheo Nath Mahto was leading the procession and while he reached near the door of Chhote Lal. Rajendra Prasad and Chhote Lal insisted them to play Akhara at their door and forced Tasa player to perform it though he insisted that he was engaged by appellant Sheo Nath Mahto. Thereafter, the procession proceeded further and when, it reached near the door of Mangal Sah, they Bijay Shankar Prasad, Rajendra Prasad and others assaulted Sheo Nath Mahto. Rajendra Prasad and Chhote Lal insisted them to play Akhara at their door and forced Tasa player to perform it though he insisted that he was engaged by appellant Sheo Nath Mahto. Thereafter, the procession proceeded further and when, it reached near the door of Mangal Sah, they Bijay Shankar Prasad, Rajendra Prasad and others assaulted Sheo Nath Mahto. Further assault was prevented by the villagers. 4. The versions of the occurrence were placed before the trial Court. Counter-case has also been instituted by the defence in which cognizance has been taken. 5. The informant in his evidence in Court charged Sheo Nath Mahto with dragging him in the procession and assaulting him with Bana. Raghunath Mahto is alleged to have assaulted him with bhala and other accused-persons gave him several lathi blows. Appellant Ali Hussain was present but there is no allegation of assault against him. Witness Ganga Prasad deposed that he found the informant injured. 6. Dr. P.N. Gupta, Civil Assistant Surgeon of M. J.K. Hospital, Bettiah examined the injured Bijay Shankar Prasad on 2-8-1984 at 11.30 a.m. He found three injuries on his head which were incised on the left side of head. There was swelling on the left forearm. The injuries were simple in nature caused by sharp-cutting weapon except one injury which was caused by hard and blunt substance. 7. Dr. Nasim Alam was examined as defence witness, who deposed that on 1-8-1984 at 7.30 p.m., he examined Sheo Pujan Mahto and found two swelling on the thigh and forearm and one linear vertical scratch with swelling on left side of neck. Once incised would was also found on the left side of scalp over the temple and on the left side of chest above nipple. The injuries were simple and caused by hard and blunt substance except incised wound which has been caused by sharp-cutting weapon like bhala. 8. A complaint petition was filed by Sheo Pujan Mahto on 2-8-1984. The cognizance was taken in the counter-case also but the outcome of the case is not known. 9. Learned trial Judge has accepted the evidence of the informant and has drawn adverse inference against the accused-persons for not examining any defence witness in support of the defence about the occurrence. The cognizance was taken in the counter-case also but the outcome of the case is not known. 9. Learned trial Judge has accepted the evidence of the informant and has drawn adverse inference against the accused-persons for not examining any defence witness in support of the defence about the occurrence. Learned Judge relying on 1977 S.C.C. (Cr.) 602, held that in case of failure of prosecution to explain the minor injuries oh the accused, adverse inference cannot invariably be drawn. In the reported case, no witness was examined in support of defence version of the case. Learned Trial Judge has not given credence to the injury report because the injuries were examined by the Health Officer of the Municipality. 10. Be that as it may, in my view, the learned trial Judge was right in accepting the prosecution evidence in the facts and circumstances of the case. Counter-case is pending. If the accused-persons of that case are found guilty, they will be punished accordingly. All the appellants except Sheo Nath Mahto have been convicted under Secs. 323/147 of the Indian Penal Code. Sheo Nath Mahto has been convicted under Secs. 307/148 of the Indian Penal Code. But, in my view, Sheo Nath Mahto was also assaulted in the procession and the injuries were simple in nature and as such the conviction of this appellant under Sec. 307 Indian Penal Code is not proper and is set aside. His conviction under Sec. 148, Indian Penal Code is also set aside. He is convicted under Sec. 323, Indian Penal Code. Conviction of other appellants under Sec. 323, Indian Penal Code is affirmed but their conviction under Sec. 147, Indian Penal Code is not proper since they were not the members of unlawful assembly. Admittedly, the informant party and the accused party were in procession which was Mahabiri Jhanda Procession in which people carry lathi, bhala, etc. The conviction of the remaining appellants under Sec. 147, Indian Penal Code is set aside. So far sentence is concerned, since the occurrence is of the year 1984, and considering the fact that assault and counter-assault had taken place on trivial matter, ends of justice will be met by imposing a fine of Rs. 100.00 on each of the appellants under Sec. 323 of the Indian Penal Code and in default, they will have to suffer imprisonment for one week. 11. 100.00 on each of the appellants under Sec. 323 of the Indian Penal Code and in default, they will have to suffer imprisonment for one week. 11. This appeal is accordingly disposed of.