Judgment Chandra Mohan Prasad, J. 1. The appeal is against the judgment dated 3rd March, 1992 of the 6th Additional Sessions Judge, Patna passed in Sessions Trial No. 507 of 1985 /22 of 1987, whereby each of the four appellants Parmanand Singh, Krishna Singh, Hare Kishun Singh and Arjun Singh was convicted under Secs. 324 and 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months each under each of the two counts. Appellants Singhasan Singh and Hulash Singh were convicted under Secs. 323 and 147 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three months each under each of the two counts. Appellant Raj Ballam Singh was convicted u/s. 27 of the Arms Act and sentenced to undergo rigorous imprisonment for three months. 2. The prosecution case, vide the fard-beyan (Ext-1) recorded on the statement of informant Shambhu Singh on 16th March 1984 at 10:30 A. M. in Bakhtiarpur Hospital is that, that day (16-3-1984) at 7:00 A.M., while he (the informant) along with Ramdeo Singh (P. W. 2) and Baliram Prasad (P. W. 4) was going to his field and when they reached towards north in their agricultural field, all the four appellants Parmanand Singh, Krishna Singh, Hare Kishun Singh and Arjun Singh carrying Bhala and appellants Singhasan Singh and Hulash Singh carrying Lathi Surrounded them and informant as well as Ramdeo Singh (P. W. 2) were assaulted by means of Bhala at the hands of these four appellants Parmanand Singh, Krishna Singh, Hare Kishun Singh and Arjun Singh and the two appellants Singhasan Singh and Hulash Singh by means of Lathi. Three other persons namely Hari Singh, Bhagwat Singh and Daroga Singh were also mentioned as assailants in the fard-beyan and they were put on trial before the trial Court but they have been acquitted by the trial Court. About appellant Rajballam Singh it is alleged in the fard-beyan that while the assailants were fleeing after assault he had fled way firing shots. 3. The defence of the appellants before the trial Court was of denial of the occurrence and the plea of counter case lodged by the appellants was also raised. As many as seven witnesses were examined by the prosecution. 3. The defence of the appellants before the trial Court was of denial of the occurrence and the plea of counter case lodged by the appellants was also raised. As many as seven witnesses were examined by the prosecution. They were P. W. 3 Shambhu Singh, the informant, P. W. 1 Ramdas Singh and P. W. 2 Ramdeo Singh, the full brothers of the informant who deposed as eye witness to the occurrence. P. W. 4 Baliram Prasad was a tendered witness and he did not say about the occurrence. P. W. 5 Sant Kumar Singh is a co-villager who deposed as an eye witness. P. W. 6 Dr. L. N. Prasad had examined the injuries on the informant and P. Ws. 2 and 4. P. W. 7 Ramashish Prasad was the I. O. of the case. 4. The accused -appellants examined two witnesses. D. W. 1 Dr. Naresh Kumar was the Doctor who had examined the injuries on Daroga Singh, Krishna Singh and Bijay Singh who are from the appellants side of this appeal. D. W. 2 Md. Usman Gani was the I. O. of the counter case under F. I. R. relating to Fatuha P. S. Case No. 120 of 1984 under Secs. 147, 148, 324, 323, 307, of the Indian Penal Code. This F. I. R. was lodged by Daroga Singh against Ramdas Singh and Ors. 5. The informant (P. W. 3) deposed that on the day of occurrence, at about 7.00 A. M., while he along with Ramdeo Singh and Ballam Singh was going to his KHET (field) for scrapping grass, the appellants Parmanand Singh, Krishna Singh and Arjun Singh carrying Bhala, Hari Singh, Hulash Singh and Singhasan Singh carrying Lathi and Rajaballam Singh carrying country-made gun surrounded them. Parmanand Singh asked them to leave the land regarding which the appellants had obtained rent receipts in their favour. The informant refused whereupon Parmand Singh ordered to assault and then appellants Parmanand Singh, Arjun Singh, Hare Kishun Singh and Krishna Singh assaulted him and Ramdeo Singh with Bhala and Singhasan Singh and Hulas Singh assaulted them with Lathi. He further deposed that after the assault the appellants fled away and at the time of fleeing away, appellant Rajballam Singh made sky fire. PWs. 1 and 2 who were full brothers of the appellants have deposed on the similar line. He further deposed that after the assault the appellants fled away and at the time of fleeing away, appellant Rajballam Singh made sky fire. PWs. 1 and 2 who were full brothers of the appellants have deposed on the similar line. P. W. 5 is a co-villager also deposed similarly. 6. P. W. 6 Dr. L. N. Prasad who examined informant, P. Ws. 2 and 4 deposed that he found one scratch 1" x ½" below the right lower eye lid of Baliram Prasad, simple in nature caused by hard and blunt substance -- may be Lathi. The Doctor also says to have examined the informant Shambhu Singh and to have found the following injuries on his person : (i) Bleeding incised wound - 1" x ¼" x ¼" on the middle of left deltoid region - simple in nature caused by sharp cutting weapon. (ii) Bleeding incised wound -- 1" x ½" x ½ on the back of left shoulder joint- simple in nature, caused by sharp cutting weapon. (iii) Profuse bleeding incised wound --1" x 1/6" x 1" on the upper left end of right clavicle -- dangerous to life, Grievous in nature, caused by sharp cutting weapon. (iv) Scratch - 1" x ¼" on front and lower part of right deltoid region - simple in nature caused by hard and blunt substance. The Doctor also said to have examined Ramdeo Singh (P. W.2) and to have found the following injuries on him: (i) Profuse bleeding incised wound - 1" x ¼" deep without any resistance on the middle lower part of right chest, dangerous to life. Grievous in nature caused by sharp cutting weapon. (ii) Diffuse tender swelling with bruise 2.½" x 1" on the left shoulder joint -- Simple in nature, caused by hard and blunt substance. (iii) Diffuse tender swelling with scratch on the middle and back of the left leg, simple in nature caused by hard and blunt substance. He further deposed that injury No. (i) may be caused by Bhala while injury Nos. (ii) and (iii) may be caused by Lathi. In his cross examination, the Doctor deposed that there is difference between the incised wound and piercing wound. He further deposed that Bhala is a pointed weapon but it depends on how it is used. 7. The I. O. P. W. 7 proved the fard -beyan (Ext-1). (ii) and (iii) may be caused by Lathi. In his cross examination, the Doctor deposed that there is difference between the incised wound and piercing wound. He further deposed that Bhala is a pointed weapon but it depends on how it is used. 7. The I. O. P. W. 7 proved the fard -beyan (Ext-1). He further deposed that on being pointed out by Ramdas Singh (P. W. 1) he inspected the P. O. which was a wheat field situated half kilometer north-east of village Mosimpur known as Maksudpur Diara. 8. So far the defence witnesses are concerned, D. W. 1 Dr. Naresh Kumar has proved the injury on Daroga Singh on 16th March, 1984 and the injury is lacerated wound. He also examined Bijay Singh and found two swelling injuries. He further examined Krishna Singh (appellant) and found one lacerated wound on him. 9. During hearing, the learned counsel for the appellants raised some points and challenged the credibility of the prosecution case. First of all the injury caused on the injured Ramdeo Singh and Shambhu Singh allegedly by means of Bhala at the hands of Parmanand Singh, Krishna Singh, Hare Kishun Singh and Arjun Singh was referred to and it was pointed out that the doctor P.W. 6 has found three incised wounds on the person of the informant and one incised wound on the person of Ramdeo Singh and while mentioning about the injuries the doctor categorically stated below the details of injuries that the injuries were caused by sharp cutting weapon. Learned counsel says that the doctor states at one place that the injury may be caused by Bhala also but he keeps his reservation by deposing in his cross-examination that there is difference in incised wound and piercing wound and that Bhala is a pointed weapon and it depends on how it was used. On perusal of the description of the incised injuries as mentioned by the doctor it appears that under each of the injuries he has given a definite finding that the injuries were caused by sharp cutting weapon. In this case, the evidence as adduced by the eye witnesses is plaint and simple and they say that the appellants Parmanand Singh, Krishna Singh, Hare Kishun Singh and Arjun Singh had assaulted the injured by means of Bhala. The evidence shows that Bhala was used in a manner as Bhala is usually used. In this case, the evidence as adduced by the eye witnesses is plaint and simple and they say that the appellants Parmanand Singh, Krishna Singh, Hare Kishun Singh and Arjun Singh had assaulted the injured by means of Bhala. The evidence shows that Bhala was used in a manner as Bhala is usually used. The appellants counsel argued that a Bhala will cause piercing and punctured wound only when it is used as Bhala. He further argued that Bhala can also cause incised wound when the assault is by the side portion of the Bhala and it is used in a slanting fashion. The learned counsel continued to submit that in the evidence, as adduced by the prosecution, there is nothing to show that Bhala was used by the side portion of the blades and that too in a slanting fashion. Undoubtedly, there is nothing in the evidence of the P. Ws. to show that the Bhala was used in a manner as Bhala is used. Therefore, in these circumstances, the very finding of incised wound and the opinion of the doctor that it was caused by sharp cut ting weapon creates a doubt over the prosecution story that appellants Parmanand Singh, Krishna Singh, Hare Kishun Singh and Arjun Singh had caused Bhala injury to the two injured as alleged by the prosecution. 10. Learned counsel for the appellants further pointed out that in this case, two independent witnesses Tahal Singh and Munshi Singh were cited in the fard-beyan as witnesses but they have not been examined by the prosecution. He also argued that P. Ws. 1 and 2 are full brothers of the informant. 11. The appellants counsel also argued that in this case, the P. O. as said by the prosecution has not been established through the prosecution evidence. Pointing to the F. I. R., it was submitted that in the F. I. R., the P. O. is simply mentioned as north of village Mosimpur Badhar. 11. The appellants counsel also argued that in this case, the P. O. as said by the prosecution has not been established through the prosecution evidence. Pointing to the F. I. R., it was submitted that in the F. I. R., the P. O. is simply mentioned as north of village Mosimpur Badhar. But, the learned A. P. P. pointed out the fard-beyan and submitted that the informant has clarified in the fard-beyan that the occurrence took place in his field situated north of the Badhar and thus, he submitted that the filed is linked with the P. O. as mentioned in the F. I. R. But the learned counsel for the appellants further referred to the evidence of the I. O. who mentioned that the P. O. KHET was situated half kilo meter north east of village Mosimpur and he argued that this description given by the I. O. indicates the situation of the P. O. at a different place. The appellants counsel further referred to the evidence of P. W. 5 at para-9 which mentions that whatever the occurrence happened, it took place near the house of him and the house of the informant. Referring to this evidence he argued that according to this evidence, the occurrence took place near the house of the informant and thus a grave doubt is entertained on the point as to whether the occurrence had taken place at the P. O. as alleged. In such view of the matters, the prosecution story is adversely affected in a great deal and it has to be held that the prosecution has not been able to prove beyond reasonable doubt the P. O. as propounded by it. 12. The appellants counsel referred to the F. I. R. (Ext-B) of the counter case and also the medical evidence of the doctor (D. W. 1) stating about the injuries on the prosecution party and he argued that according to the appellants, as per their case in the counter case, the prosecution side of this case had assaulted the appellants side and there is no explanation about the injuries on the appellants side. The learned A. P. P. replied that the defence has not adduced any evidence to prove the occurrence of the counter case so they cannot say that any injury was caused to the appellants side as per the story propounded in the counter case. The learned A. P. P. replied that the defence has not adduced any evidence to prove the occurrence of the counter case so they cannot say that any injury was caused to the appellants side as per the story propounded in the counter case. In this context, the learned counsel for the appellants referred to the evidence of P. W. 5 at Page-9, where P. W. 9 says that in the counter case Daroga Singh, Krishna Singh and Bijay Singh had received injuries. On the basis of this evidence of P. W. 5, learned counsel argued that when the injury on appellants is admitted by the prosecution witness himself to have been caused during the incident relating to counter case, the non-examination of witnesses by the appellants to prove the incidence of counter case is not prejudicial to the appellants plea. Appellants counsel is right. Considering the evidence of P. W. 5 at page-9 it has to be considered that the prosecution admits the injuries on Daroga Singh, Krishna Singh and Bijay Singh having been caused as per the counter case. In these circumstances, non-explanation of injuries on the appellants side as proved through the evidence of D. W. 1 is also fatal to the case of prosecution in the instant case. 13. Thus, considering the aforesaid infirmities in the case of the prosecution, I find that the prosecution has failed to prove beyond doubt that the appellants Parmanand Singh, Krishna Singh, Hare Kishun Singh and Arjun Singh had assaulted and caused injury to the informant and Ramdeo Singh by means of Bhala. Hence, the conviction of these four appellants u/s. 324, Indian Penal Code, 1860 cannot be sustained. These appellants have also been convicted u/s. 148, I. P. C. The common intention of the assembly, so far these appellants are concerned, is said to be causing of assault but when the story of assault is disbelieved, it goes away and there cannot be conviction u/s. 148 I. P. C. also. Besides these infirmities, there are other broad infirmities also as to not establishing the P. O. beyond doubt and non-explanation of the injuries on the appellants side. 14. One of the appellants Rajballam Singh was convicted u/s. 27 of the Arms Act. The prosecution evidence is that when the appellants were fleeing away after assault, appellant Rajballam Singh had made sky fire. 14. One of the appellants Rajballam Singh was convicted u/s. 27 of the Arms Act. The prosecution evidence is that when the appellants were fleeing away after assault, appellant Rajballam Singh had made sky fire. There is nothing in evidence to show that during the occurrence, Rajballam Singh had fired the firearm or had used it in any manner in order to cause any assault or injury to any of the injured. These circumstances considered with the other infirmities of the case of prosecution also show that appellant Rajballam Singh cannot be safely convicted u/s. 27 of the Arms Act, hence, he deserves to be acquitted of this charge. 15. So far the remaining two appellants, Singhasan Singh and Hulash Singh are concerned, in view of other infirmities of the case, as discussed above, I do not think it safe and proper to convict them u/s. 323 and 147 of the Indian Penal Code. Hence, they are entitled to benefit of doubt and deserve to be acquitted. 16. Thus, in view of the facts and circumstances of the case and the evidence discussed above, I find that the prosecution has not been able to prove its case beyond doubt and therefore, each of the appellants is acquitted of the respective charges levelled against him. 17. In the result, this appeal is allowed and the order of conviction and sentence as passed by the learned trial Court is hereby set aside. The appellants are discharged from the liabilities of bail bonds executed by them.