JUDGMENT C.M. PRASAD, J. The appeal is against the judgment dated 30th May 1992 of the 4th Additional Sessions Judge, Nawadah passed in S.T. No.4 of 1998/70 of 1991 whereby all the ten appellants have been convicted under Section 307 read with Section 34 of the Indian Penal Code -and each of them has been sentenced to undergo rigorous imprisonment for seven years. Further each of the six appellants, namely, Kailash Mistri, Gopal Mistri, Tulsi Mistri, Laxmi Mistri, Jitendra Mistri and Panna Ram has been convicted under Section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years each. Each of the remaining four appellants, namely, Biru Mahto, Chando Mistri, Vijoy Ram arid Arjun Mahton has been convicted under Section 147 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of one year each. All the sentences are, however, to run concurrently. 2. The fard-beyan of the informant Saryug Prasad Verma (P.W.6) was recorded by B.M.P. Verma, Inspector cum-Officer In-charge of Nawadah Police Station in Sadar Hospital, Nawadah on 9th October 1989 at 10:30 A.M. The Prosecution case, as stated in the fard-beyan (Ext-1) is that that day (9.10.1989) at 9:00 A.M., while the informant was returning from Kadirganj and was going towards his house and when he was on the road near the house of Sudamia Devi, the appellants were there taking liquor. Seeing the informant, Sudamia Devi stated that he (the informant) was the man who was obstructing her from selling liquor whereupon the appellants surrounded him and dragged him towards a banyan tree there where appellants Kailash Mistri assaulted him with brick causing injury on his right thigh and right hand. The informant alleged that Rajendra Chaudhary (P.W.3) was also assaulted. About the cause of occurrence, it was stated that Sudamia Devi was illegally selling liquor and the informant had prohibited her due to which the appellants assaulted him and Rajendra Chaudhary. 3. As many as 12 witnesses were examined by the prosecution'. The appellants also examined two defence witnesses. P.W.6 Saryug Prasad Verma is the informant himself. P.W.1 Saryug Prasad Tatwa, P.W.2, Karu Chaudhary, P.W.3 Rajendra Ram, P.W.4 Ramjee Chaudhary, P.W.5 Rajo Chaudhary and P.W.7 Mahabir Sao have been examined as eye witnesses to the occurrence. 3. As many as 12 witnesses were examined by the prosecution'. The appellants also examined two defence witnesses. P.W.6 Saryug Prasad Verma is the informant himself. P.W.1 Saryug Prasad Tatwa, P.W.2, Karu Chaudhary, P.W.3 Rajendra Ram, P.W.4 Ramjee Chaudhary, P.W.5 Rajo Chaudhary and P.W.7 Mahabir Sao have been examined as eye witnesses to the occurrence. P.W.8 Gobardhan Singh is a formal witness who proved the signature (Ext.2) on the fard beyan P.W.9 Mahesh Prasad, P.W.11 Janardan Prasad Yadav are the two Investigating Officers of the case. P.W.12 Murari Prasad is a formal witness who proved the injury report (Ext. 4) P.W.10 Dr. Mathura Prasad is the doctor who had examined the injured Rajo Chaudhary P.W.5 4. D.W.1 Rajeshwar Prasad Singh is a formal witness who proved an informatory petition (Ext-A) and Vakalatnama (Ext-B) filed by Gopal Mistri (appellant) before the Executive authorities. D.W.2 Madan Singh is also a formal witness who proved Ext-A/2 filed by the appellants. 5. The informant P.W.6 deposed that on 9th October 1989 at about 5:00 P.M. while he was returning from Kadirganj and approached near the house of Sudamia Devi, the appellants were found taking liquor there and on the exhortation of Sudamia Devi who had stated that he (the informant) was obstructing her from selling liquor, the appellants surrounded him and dragged him near a banyan tree where appellant Gopal assaulted him with brick causing injury on his head and finger. Appellant Laxmi Mistri assaulted with brick on his chest and right side of waist. Appellant Tulsi assaulted him with brick on his right thigh and appellant Biru assaulted him with brick on right hand. Then he says that he became unconscious and was brought to the Hospital where he gained consciousness and Police came and recorded his fard-beyan (Ext-1). He identified his signature on the fard-beyan. There is no material in his cross-examination so as to discredit his testimony on the point of occurrence. 6. Then he says that he became unconscious and was brought to the Hospital where he gained consciousness and Police came and recorded his fard-beyan (Ext-1). He identified his signature on the fard-beyan. There is no material in his cross-examination so as to discredit his testimony on the point of occurrence. 6. P.W.5 who is another injured of the case deposed that after taking toddy while he was returning and came near the house of Mahabir Sao he saw the ten appellants there who captured him and took him towards the open land near the house of Mahabir Sao where appellant Tulsi assaulted him with Garasa on his hand and appellant Gopal gave a blow by means of Sad and that appellants Biru and Vijoy caught hold of his leg and appellant Chando Mistri and Arjun Mahton caught his hands and then Kailash started cutting his nose with a Chhura and appellant Jitendra started taking out his eyes with a knife and appellant Panna Ram was pressing barrel of pistol on his cheek and appellant Laxmi cut his neck with Fasuli. He became unconscious and he regained consciousness after 3-4 days in the Hospital. At Para-14 of his cross-examination, he stated that while taking out his eyes, the knife had been pierced into his eyes and blood had come out. 7. P.W. 4 Ramjee Chaudhary is an eye witness to the occurrence and in his deposition he says about the occurrence of assault on the informant by means of fists and bricks. But this witness does not say anything about assault on the P.W.5 Rajo Chaudhary, as deposed by the P.W.5 in his evidence. 8. P.W.3 Rajendra Ram who has claimed to be an eye witness say about the assault on P.W.5 and he also deposed that when he tried to flee away from the P.O. the appellants had also captured him and had given him Lathi blow. 9. P.W.2 who is another eye witness says that he was going with P.W.5 but while he was going with P.W.5, the appellants had stopped but he managed to escape and that, thereafter, the appellants had assaulted P.W.5 This witness has stated about the assault on P.W.5 in the manner as stated by P.W.5 himself. 10. 9. P.W.2 who is another eye witness says that he was going with P.W.5 but while he was going with P.W.5, the appellants had stopped but he managed to escape and that, thereafter, the appellants had assaulted P.W.5 This witness has stated about the assault on P.W.5 in the manner as stated by P.W.5 himself. 10. P.W.1 Saryug Prasad Tatwa claims to have seen the occurrence and he has deposed about the occurrence stating about the assault on the P.W.4 in the manner as stated by P.W.4 himself. 11. P.W. 7 Mahabir Sao is a shopkeeper, who claims to have seen the occurrence in detail in the manner as stated by P.W.5. 12. The Doctor (P.W.10) deposed that on 9th October 1989 at 9:40 P.M. he had examined the injuries on injured Rajo Chaudhary (P.W.5) and found the following injuries on his person:- (i) One punctured wound 4" x 1/3" x skin deep on the front of neck. (ii) Punctured wound 2" x 1/4" x skin deep on the left side of neck. (iii) Lacerated wound 2" x 1/3" x 1/ 2" on the neck and fracture of nose bone. (iv) One lacerated wound 1.1/2" x 1/1" x scalp deep on the right temple. (v) One lacerated wound 3" x 1/4" x scalp deep on the left temple. (vi) One bruise of the size 1" diameter on the right cheek. He further deposed that the injury numbers (i) (ii) and (vi) were simple in nature and the rest of the injuries were grievous. Injury nos. (i) and (ii) were caused by Fasuli and the other injuries were caused by hard blunt substance. He further deposed that injury no. (iii) was not possible to be caused by Chhura and that injury Nos. (iv) and (v) were not possible to be caused by Garasa and Sa it. 13. So far the evidence of the two I.Os., namely, P.Ws. 9 and P.W.11 is considered, that is not substantial. They have simply stated that they visited the P.O. and took statement of witnesses rather P.W.9 deposed that when he visited the P.O. he did not find anything worth noting. 14. 13. So far the evidence of the two I.Os., namely, P.Ws. 9 and P.W.11 is considered, that is not substantial. They have simply stated that they visited the P.O. and took statement of witnesses rather P.W.9 deposed that when he visited the P.O. he did not find anything worth noting. 14. During hearing, learned counsel for the appellants argued that there are various infirmities and there is no material to indicate any circumstance justifying any conviction under Section 307 I.P.C. From the evidence as adduced by the prosecution, the circumstances appear like this that the two of the appellants Biru Mahton and Vijoy had caputred the legs of injured Rajo Chaudhary (P.W.5) and Chando and Arjun captured his hands and then Tulsi and Gopal Mistri assaulted him with Garasa am Saif and then Kailash and Jitendra assaulted respectively on his nose and eyes and Laxmi did cut his throat with a Fasuli and Panna Ram was putting pistol on his (P.W.5's) head. In this case, all the appellants have been convicted under Section 307 I.P.C. on the allegation that they attempted to kill P.Ws.5 From the circumstances it is clear that when the hands and legs of P.W.5 had been captured by the four appellants who had overpowered him and then the remaining six appellants were assaulting him with Garasa, Saif, Fasuli and pistol. There is nothing to show why P.W.5 was not killed at the hands of appellants. Nothing could have stopped the appellants in killing P.W.5, if they had definite intention to kill him in the circumstances of the case. No intervening circumstance is being explained as to why the appellants could not be successful in their attempt, if they had any definite intention to kill P.W.5. It is in the evidence that appellant Panna Ram was putting a pistol on the head of P.W.5, but there is no case that he had fired the pistol. No intervening circumstance is being explained as to why the appellants could not be successful in their attempt, if they had any definite intention to kill P.W.5. It is in the evidence that appellant Panna Ram was putting a pistol on the head of P.W.5, but there is no case that he had fired the pistol. Learned counsel for the appellants argued that had the appellants any intention to kill, it was a vary easy job for appellant Panna to pull the trigger and to complete the intention, if the appellants had any such intention which is not being supported by any of the eye witnesses excepting P.W.7 But the medical evidence as adduced by the doctor (P.W.10) that the injury Nos.(iv) and (v) were not possible to be caused by Garasa and Saif falsifies the claim of P.W.5 that appellant Tulsi Mistri and Gopal Mistri had assaulted him on his head with Garasa and Saif. The doctor who found injury on P.W.5 has also deposed that the injury on the nose was not possible by a knife. Hence, the evidence of RW.S that appellant Kailash assaulted him with a knife on nose and Jitendra tried to take out his eyes with a knife, does not remain believable. As to the appellant Laxmi Mistri the evidence is that he tried to cause injury on the neck of P.W.5 by means of Fasuli. The doctor has found injury nos.(i) and (ii) which are punctured wound and he described those injuries to be possible by Fasuli. Therefore, the evidence of this witness so far the assault on P.W.5 by means of Fasuli at the hands of appellant Laxmi Mistri is concerned, it can be believed. Learned counsel for the appellants pointed out that the doctor has stated that the injury nos. (i), (ii) and (vi) were grievous in nature, but he has not stated any reason about the injuries being grievous and that there is no material to show that those injuries would come under any of the categories described under Section 320 of the Code of Criminal Procedure. Since no reasons are assigned for showing the injuries grievous, I do not feel it proper to accept that those injuries were grievous in nature. 15. Since no reasons are assigned for showing the injuries grievous, I do not feel it proper to accept that those injuries were grievous in nature. 15. Thus, considering the evidence as brought by the prosecution and also considering the circumstances of the case, I find that there is no material to establish that the appellants had any intention to kill or they had in fact attempted to kill P.W.5. In such view of the matters, conviction under Section 307 read with Section 34 I.P.C. cannot be upheld. However, in the circumstances of the case, it appears that appellant Laxmi Mist'ri had assaulted P.W.5 causing punctured injury, simple in nature on the neck of P.W.5 which constitutes an offence under Section 324 I.P.C. So far other appellants are concerned under the circumstances of the case it appears that they were also involved in the occurrence of assault. So a case of assault on the P.Ws.6 and P.W.5 constituting an offence under Section 323 I.P.C. is made out against each of them. The circumstances of the case and the evidence brought forth also proved an unlawful assembly constituting an offence of rioting at the hands of appellant and at that time, it has been proved by evidence that appellant Laxmi Mistri caused injury to P.W.5 by means of Fasuli a case justifying conviction under Section 148 I.P.C. of appellant Laxmi Mistri and conviction of rest of the appellants under Section 147 of the I.P.C. is made out. 16. Thus, in view of the facts, circumstances and the evidence as discussed above I find and hold that appellant Laxmi Mistri is guilty under Sections 148 and 324 I.P.C. and convict him there-under. Each of the rest nine appellants is held guilty and I convict him under Sections 147 and 323 I.P.C. As to the quantum of sentence, I feel that a sentence of R.I. for six months under Section 148 I.P.C. and R.I. for six months under Section 324 I.P.C. to the appellant Laxmi Mistri is justified. Hence, he is accordingly sentenced. As to the remaining nine appellants, I feel that the sentence of three month's R.I. under Section 147 and three month's R.I. under Section 323 I.P.C. is justified. Hence, each of them is sentenced accordingly. 17. In the result, the appeal stands dismissed, with the modification in the conviction and sentence as stated above.