Judgment Chandra Mohan Prasad, J. 1. These three appeals arise out of the judgments dated 14th February 2002 of the 1st Additional Sessions Judge, Sitamarhi in Sessions Trial Nos. 312 of 2000/110 of 2000 and S.T. No. 236 of 2001/41 of 2001 whereby each of the appellants has been convicted under Section 307 read with Section 34 of the Indian Penal Code and sentenced to undergo R.I. for ten years and a monetary fine of Rs. 2000/- (two thousand) each and, in default of payment of fine, to undergo R.I. for one year each. Both the Sessions Trials, as referred to above, were decided by the said judgments dated 14th February, 2000. It appears that appellants Mahesh Kumar Singh and another accused Shatrughna Sah was tried in S.T. No. 312 of 2000 and Shatrughna Sah was acquitted. Other two appellants, namely, Bachchu Dubey and Lal Babu Dubey were tried under S.T. No. 236 of 2000. The evidence of the appellants was recorded separately in both the Sessions Trials. 2. The fard-beyan of the informant Lallan Prasad was recorded by Bindhyachal Singh, S.I. in the night of 23rd February, 2000 at 3.30 Oclock at Bed No. 4 in Sitamarhi Hospital, where he was lying in injured condition. He (informant) stated that in the night of 22nd February, 2000 at 10.30 while he was going to his house from his shop, situated near Basushri Cinema Hall, Sitamarhi and his SARHU-BETA Ashok Kumar Singh was also behind him and when he reached near the darwaja of Sri Kishun Sao, a Maruti Van was seen parked there by the side of the road and suddenly 8-9 persons came from behind the van and surrounded him. Out of those persons, he (informant) identified in moon light and street electric bulb light (1) Lal Babu Dubey (carrying revolver), (2) Bachchu Yadav (carrying iron rod), (3) Binod Sah (carrying Katta) and (4) Mahesh Singh. He further alleged that Bachchu Yadav stated that he (informant) was a man of BJP and ordered to kill him. On his order, Binod Sah and Mahesh Singh assaulted him fatally with knife on the head, chin, neck and hand. At that time, Bachchu Dubey was catching hold of him. Ashok Kumar who was coming behind him (informant), rushed to save him but Lal Babu Dubey shot with his pistol at Ashoks abdomen below chest. On his order, Binod Sah and Mahesh Singh assaulted him fatally with knife on the head, chin, neck and hand. At that time, Bachchu Dubey was catching hold of him. Ashok Kumar who was coming behind him (informant), rushed to save him but Lal Babu Dubey shot with his pistol at Ashoks abdomen below chest. Receiving injury, both of them fell down and raised hulla whereupon Raj Kishore Prasad (P.W. 1), Rambabu Prasad (P.W. 2), Uma Shankar Prasad (P.W. 5) and Upendra Prasad (P.W.4) came from the side of the Mohalla and seeing them, the accused persons fled away and they saw the accused fleeing. The informant claimed in the fardbeyan that since he was supporter of BJP, the accused persons tried to kill him and they also fatally assaulted Ashok Kumar causing grievous injuries to him. 3. As many as ten witnesses were examined in S. T. No. 312 of 2000 & nine witnesses were examined in S.T. No. 236 of 2001. Most of the witnesses are common witnesses but since there were two trials, they were examined separately in each of the two trials. In S.T. No. 312 of 2000, P.W. 1 Ram Kishore Sah deposed that while he was going to his house from the market and reached near the house of Kishun Prasad, he saw that Mahesh Singh was catching hold of Lallan Prasad and was assaulting him with knife. Binod was assaulting him with katta (Khukhari) and Bachchu Dubey was assaulting by rod and that when Ashok Kumar went to rescue him (informant), Bachchu Dubey and Lal Babu Dubey fired at him (Ashok Kumar) hitting below his chest. At Para-5 of his deposition he deposed that first of all he saw the occurrence of assault from a distance of 10 yards and that at that time 8-9 persons had surrounded the informant. At para-8, he deposed that the night was a moon night and electric bulb was also lightening there. 4. P.W. 2 Rambabu Prasad has given a similar description of the occurrence and at Para-5 he too says to have seen the occurrence first from a distance of 8-10 yards and said that at that time, the accused persons had surrounded the informant. 5. P.W. 4 Upendra Prasad says about the occurrence in his examination-in-chief, like P.Ws. 4. P.W. 2 Rambabu Prasad has given a similar description of the occurrence and at Para-5 he too says to have seen the occurrence first from a distance of 8-10 yards and said that at that time, the accused persons had surrounded the informant. 5. P.W. 4 Upendra Prasad says about the occurrence in his examination-in-chief, like P.Ws. 1 & 2 and he has also deposed that he was coming from the market along with Rambabu Prasad (P.W. 2) and Uma Shankar Prasad (P.W. 5). At para-5 of his cross-examination, this witness says that he had seen the occurrence first of all from a distance of 10-15 yards and that when he had reached the P.O., accused had fled away. 6. P.W. 5 Uma Shankar Prasad deposes in his examination-in-chief like P.W. 4 and at Para-3 of his cross-examination he says that when he had seen Lallan Prasad (informant), blood was coming out of his body. 7. P.W. 6 Lallan Sah and P.W. 7 Ashok Kumar are the informant and the other injured. The informant (P.W. 6) deposes that in the night of occurrence at 3.30 Oclock he was going to his house from the market and when he reached near the house of Kishun Prasad, he saw that Maruti van was parked there. 8-9 persons came out of the van. Bachchu Dubey said that he (informant) was a man of BJP and ordered to kill, whereupon accused Binod assaulted him (informant) with katta. Appellant Mahesh Singh assaulted with knife. He further deposed that when his sarbeta Ashok rushed to save him, appellant Bachchu Dubey assasulted him (Ashok) with revolver. He also deposed that on his hulla Upendra, Ram Kishore, Uma Shankar and Rambabu had come there. He proved his signature (Ext.-1) on the fard-beyan saying that the fard-beyan was recorded on his statement. At Para-5 of his cross-examination, he admitted that he had stated before the Police that after receiving fireshot, Ashok had fallen down and then on hulla Rambabu and others had come and on seeing them, accused had fled away. 8. P.W. 7 Ashok Kumar who claims to be going with the informant deposes similarly like P.W. 1 saying about the assaults at the hands of appellant Mahesh Singh, Bachchu Dubey and Lal Babu Dubey. 8. P.W. 7 Ashok Kumar who claims to be going with the informant deposes similarly like P.W. 1 saying about the assaults at the hands of appellant Mahesh Singh, Bachchu Dubey and Lal Babu Dubey. This witness had received fire-shot injury and like the informant, he also deposed that appellant Bachchu Dubey had assaulted on his abdomen with revolver. At Para-5 of his cross-examination, he said that the assailants had surrounded the informant from all the four sides. 9. P.W. 8 Dr. Shashi Bhushan Singh is the Doctor who had examined the informant Lallan Prasad. He stated in his evidence that on 22nd February, 2000, at 11.00 p.m. he had examined Lallan Prasad (informant) and found the following injuries on his person : (i) Incised wound 7" x 1/4" x muscle deep over forehead with tailing left ear with profused bleeding. (ii) Incised wound 5" x 1/4" x scalp deep beside injury no. 1 with profuse bleeding. (iii) Incised wound 1 & ½" x ¼" x scalp deep over middle of scalp. (iv) Incised wound 3" x ¼" x muscle deep with profuse bleeding over mandibular region. (v) Incised wound 2" x ¼" x muscle deep with cut vessels over left mandibular region with profuse bleeding. (vi) Incised wond 5" x ¼" x muscle deep over lateral palm of right hand. 2. Injury no. (1) and (iv) and (v) are grievous in nature due to permanent disfigurement of face and rest are simple in nature cut by sharp cutting weapon made by Katta (Khukhari) and injury no. (iii) and (v) may be caused by knife. 3. Age of injury within one hour. At Para-6 of his cross-examination, on seeing the informant who was present in court, the Doctor deposed that though some signs of injuries were there, the injured did not appear to be disfigured permanently. 10. PW. 9 Bindhyachal Singh, S.I. is the I.O. of the case. He stated that he had recorded the statement of the informant and conducted the investigation. At Para-2 of his evidence, he stated that he had inspected the P.O. which is a trivium and the vehicle was also found parked there. 11. P.W. 10 Akshabat Nath Mishra S.I. is a formal witness who had simply filed the charge-sheet. 12. As to the evidence of witness, recorded in S.T. No. 236 of 2001, nine witnesses were examined by the prosecution. 11. P.W. 10 Akshabat Nath Mishra S.I. is a formal witness who had simply filed the charge-sheet. 12. As to the evidence of witness, recorded in S.T. No. 236 of 2001, nine witnesses were examined by the prosecution. P.W. 1 Upendra Prasad examined in this trial was examined as P.W. 5 in S.T. No. 312 of 2000. In this trial (S.T. No. 236 of 2001), P.W. 1 deposed about the occurrence similarly giving description about the incident, as given earlier. 13. P.W. 2 Ajay Kumar simply deposed that on hulla he went to the P.O. and he had found Lallan (informant) and Ashok in injured condition there. 14. P.W. 3 Sunil Kumar was tendered by the prosecution in S.T. No. 312 of 2000 but in this trial (S.T. No. 236 of 2001), he deposed about the occurrence like P.W. 1. 15. P.W. 4 Raj Kishore Prasad @ Ram Kishore Sah has also given the similar description of the occurrence like P.W.1. 16. P.W. 6 Lakshman Prasad is a hearsay witness. He similarly says that he had heard that the informant Lallan and Ashok had been assaulted by means of knife and firearm. 17. P.W. 7 Lallan Prasad is the informant himself. He has given the details of assault in a similar manner with the only exception that when Ashok Kumar came to save him (informant), appellant Lallan assaulted with firearm on his (Ashoks) abdomen. 18. P.W. 5 Ashok Kumar who is the another injured said to have received firearm injury, gave the description of the occurrence in similar manner but with the same exception saying that when he rushed to save the informant, Lal Babu Dubey (appellant) assaulted him with pistol causing injuries on his abdomen below the chest. 19. P.W. 9 Birendra Kishore is the Doctor who had examined the injuries on the person of Ashok Kumar. He deposed that he had examined Ashok Kumar on 22nd February 2000 and had found the following injuries on his person : "(i) Bleeding wound with lacerated inverted margin 1" x ½" oval in shape in left upper quadrant of abdomen communicating with parietal cavity of abdomen. (ii) In right forearm linear halt two lacerated tattood communicating wounds one on exterior surface was wound of entry with inverted margin and another on flexor surface was wound of exit with everted margin. There was no tattooing wound of exit. (ii) In right forearm linear halt two lacerated tattood communicating wounds one on exterior surface was wound of entry with inverted margin and another on flexor surface was wound of exit with everted margin. There was no tattooing wound of exit. 3.The patient was resuscitated and Xray of abdomen and right forearm was done. There was bullet like foreign body in pelvis. Right forearm x ray was normal and bones are intact. He was operated for the same on 23rd day of February, 2000 at 11.00 A.M. Blood taccal matter and fluid were found in parietal cavity. There were six perforations of jejunum beyond D. J. Junction and one perforation in descending column. All perforations were repaired carefully. Peritorial toilet was done. One bullet recovered from the pelvis. Re-check-up for further injury was done. Wound entry in abdominal wall was repaired. Age of injury was within six hours. He proved the injury report (Ext.-1). At Para-12 he deposed that had the patient been operated upon immediately without resuscitation, he could have died, i.e., why he could not operate at once and the patient was operated upon after resuscitation. He stated that the nature of injury was grievous in nature and was life threatening. 20. P.W. 8 Bindhyachal Singh is the I.O. of the case who had conducted the investigation and submitted charge-sheet. 21. All the three appellants have been convicted under Section 307/34 I.P.C. on the finding arrived at by the trial court that the appellants had under common intention given injuries in an attempt to kill. 22. Learned counsel for the appellants argued that under the facts and circumstances of the case, a case under Section 307 I.P.C. is not made out against appellants Mahesh Kumar Singh and Bachchu Dubey. So far appellant Lal Babu Dubey is concerned, learned counsel argued that on consideration of evidence, his involvement in the occurrence is not found proved. Firstly it was argued that according to the case of the prosecution, the informant and Ashok Kumar were returning from the market and they were surrounded by 8- 9 criminals out of whom, the appellant Mahesh is said to be armed with knife, Bachchu Dubey (armed with rod), Lal Babu Dubey (armed with revolver) and another absconding accused Binod (armed with Katta). 23. 23. Learned counsel for the appellants further argued that in the first happening of the incident, only the informant was being assaulted by the accused persons and Ashok Kumar was simply assaulted by one of the accused when he ran to save the informant. It was argued that on consideration of the injuries on the informant, six incised wounds were found and the Doctor says that out of these, only injury nos. (iii) & (v) could have been caused by knife and the prosecution case is that appellant Mahesh Singh had assaulted the informant by means of knife. So far other four injuries on the informant is concerned, it can be attributed to the absconding accused Binod who is said to be armed with Katta. The learned counsel also argued that according to the case of the prosecution, accused-appellant Lal Babu Dubey was carrying revolver but no firearm injury was caused on the informant. He continued to submit that had the accused any intention to kill the informant, appellant Lal Babu Dubey could have easily fired his revolver at the informant as because there was no intervening circumstance but Lal Babu Dubey did not do so. It is also argued by the learned counsel that appellant Mahesh Singh, according to the medical report could, at best, be said to have caused injury Nos. (iii) and (v) on the informant and these injuries are on the scalp and mandibular region. It was further argued by the learned counsel that had appellant Mahesh Singh any definite intention to kill, he could have easily given blow on the neck, abdomen, chest like vital part of the informant but he has not done so. Learned counsel also argued that the injuries said to have been caused at the hands of Mahesh Singh are, in fact, simple in nature. He refers to the Doctors evidence who has opined the injury no. v as grievous in nature due to permanent disfigurement of face but in the cross-examination at Para-6, the Doctor says that though there were some signs of injury on the informants face but the injured did not appear to be disfigured permanently. The learned counsel argued that out of injury nos. (iii) and (v) which only could be attributed to appellant Mahesh Singh, injury no. The learned counsel argued that out of injury nos. (iii) and (v) which only could be attributed to appellant Mahesh Singh, injury no. (v) is opined to be grievous only on the ground that it caused permanent disfigurement of face but the Doctor himself admitted on seeing the informant that it has not caused disfigurement of face. Therefore, the learned counsel argued that when there was no disfigurement of face, the injury no. (v) cannot be treated to be grievous in nature. Since the Doctor does not mention any other ground for the injury no. (v) treating it to be grievous, I see that the learned counsel for the appellants is correct in his submission that injury no. (v) is not grievous but is a simple injury. 24. In view of the facts discussed above, that the accused though being armed variously even with firearm, did not give any fatal assault to the informant, there does not appear to be a case u/s 307 I.P.C. but it appears to be a case of assault with intention to cause injuries. So far the case of appellant Mahesh Singh is concerned, it appears that the prosecution has been able to prove the prosecution story only to this extent that he caused injuries upon the informant by means of knife. 25. As regards appellant Bachchu Dubey and Lal Babu Dubey, learned counsel for the appellant argued that these two appellants have been implicated falsely. He argued that even the evidence of the informant and other injured Ashok Kumar are highly contradictory when the evidence of these two witnesses recorded separately in the two trials are considered, as regards the assaults caused at the hands of the two appellants, namely, Bachchu Dubey and Lal Babu Dubey. The learned A.P.P argued that, no doubt, there are contradictions in the evidence of the two injured witnesses but other witnesses have given a consistent evidence about the assaults caused at the hands of these two appellants. But the learned counsel for the appellants replied that the informant and other injured Ashok Kumar are the only natural and probably the injured witnesses of the case and that the other witnesses are not the eye witnesses to the occurrence and they had come to the P.O. subsequent to the occurrence. But the learned counsel for the appellants replied that the informant and other injured Ashok Kumar are the only natural and probably the injured witnesses of the case and that the other witnesses are not the eye witnesses to the occurrence and they had come to the P.O. subsequent to the occurrence. The learned counsel refers to the fard-beyan where the informant says that he along with Ashok Kumar was returning from the market and in that course, both were assaulted at the hands of the accused and that after receiving the assaults, they fell down and cried and then the witnesses rushed from the side of the Mohalla and then, the accused persons fled away. Referring to this portion of the statement of the informant, it was argued that all the said witnesses, except the informant and Ashok Kumar are the persons who had come to the P.O. after the occurrence and they cannot be expected to be the eye witnesses to the occurrence. 26. The learned counsel refers to the evidence of P.W. 5 Uma Shankar Prasad at Para-3 where he says that when he had seen the informant for the first time, blood was coming out of his body. This goes to show that he had seen the informant after assault on him and not prior to that. The learned counsel further refers to the evidence of P.W. 4 Upendra Prasad at Para-1 where he says that he (P.W. 4) was returning from the market along with Ram Babu (P.W. 2) and Uma Shankar (P.W. 5). Thus, P.W. 5 who had come and seen the informant for the first time after the occurrence was coming with P.W. 4 and P.W. 2. Therefore, P.W. 4 and P.W. 2 can also not be accepted as the competent eye witness of the occurrence of assault. In such view of the matter, the informant and other injured Ashok Kumar only appear to the competent witnesses to say about the occurrence of assault. 27. But when the evidence of these two witnesses as recorded separately in two trials are taken up for consideration, there are glaring contradictions. The learned counsel pointed out that in his whole deposition in S.T. No. 312 of 2000, the informant (P.W. 6) and Ashok Kumar (P.W. 7) both stated that it was accused Bachchu Dubey who had assaulted Ashok Kumar with revolver. The learned counsel pointed out that in his whole deposition in S.T. No. 312 of 2000, the informant (P.W. 6) and Ashok Kumar (P.W. 7) both stated that it was accused Bachchu Dubey who had assaulted Ashok Kumar with revolver. But in the whole deposition, again in S.T. No. 236 of 2001, the informant (P.W. 7) and Ashok Kumar (P.W. 5) deposed that accused Lal Babu Dubey had assaulted Ashok with revolver. No doubt, the medical evidence proves that the firearm injury was caused to Ashok Kumar and the causing of this injury can bring the assailant liable for conviction under Section 307 l.P.C. But the crucial question to be considered here is as to who was armed with what weapon and whether the prosecution has been able to prove that it was Lal Babu Dubey who had caused the assault on Ashok Kumar by means of revolver. As already discussed above, there are quite contradictory versions about the assault on the injured Ashok Kumar. The two injured, i.e. the informant and Ashok Kumar are not consistent in their evidence to show as to who was the accused who had caused the firearm injury. At one time, the two witnesses say that Lal Babu Dubey caused the firearm injury but subsequently they themselves contradict their version and say that it was Bachchu Dubey who had caused firearm injury. In such view of the matter, I feel that it is never safe to rely on these two injured persons about their evidence regarding the causing of firearm injuries. The evidence of these two witnesses do not establish whether it was actually Bachchu Dubey or Lal Babu Yadav who had given fire-arm injuries. As regards appellant Bachchu Dubey, the prosecution story is plain and simple that he was armed with iron rod and he had assaulted the informant by means of rod. But the perusal of the medical evidence, does not indicate any kind of injury said to have been caused by means of any hard blunt substance like a rod. Moreover, there is further contradiction in the evidence of these two injured witnesses who say that Bachchu Dubey had caused firearm injuries, whereas the prosecution case is that he had caused assault by means of rod. Moreover, there is further contradiction in the evidence of these two injured witnesses who say that Bachchu Dubey had caused firearm injuries, whereas the prosecution case is that he had caused assault by means of rod. Considering contradictions in the evidence of two injured, namely, the informant and Ashok Kumar, I feel that the prosecution has not been able to prove beyond doubt that these two appellants were in the occurrence causing any assault as stated by the prosecution. Therefore, the charge is held not proved against the two appellants, namely, Bachchu Dubey and Lal Babu Dubey and they are acquitted of the charge. So far appellant Mahesh Kumar is concerned, the prosecution is able to prove that he caused two simple injuries to the appellants by means of knife. Therefore, he is convicted under Section 324 l.P.C. He is sentenced to undergo R.l. for a period of one year and six months. 28. In the result, Cr. Appeal No. 85 of 2002 is dismissed with modification, as indicated above and Cr. Appeal No. 105 of 2002 and Cr. Appeal No. 253 of 2002 are allowed and the conviction and sentence passed against the appellants are set aside.