JUDGMENT: This is an appeal by accused who were convicted by the Additional Sessions Judge Washim. Appellants shall be referred to by their numbers as accused in original trial. 2. Accused No.2 is convicted under Section 307 read with Section 149 Indian Penal Code and is sentenced to imprisonment for a period of 5 years and fine of Rs.500/-. Accused No.1 to 4 are convicted under Section 147 read with Section 149 and are sentenced to one month rigorous imprisonment. Accused No.5 to 7 are also convicted under Section 147 read with Section 149 of Indian Penal Code and sentenced to imprisonment for 3 months and fine of Rs.500/-. 3. The facts giving rise to this appeal are as under: On 20.01.04 complainant Arun was at home. He heard a noise at the house of his mother and brother who live separately. He heard the noise to save them. He, therefore, rushed towards their house and saw accused No. 2 Barku, No. 3 Bhola, No.1 Jaggu, No.4 Vithal beating his mother Leelabai. Bhanudas the brother of complainant was requesting the accused not to assault his mother. They abused Bhanudas. Accused Barku and others went home. They brought with them certain weapons. Accused No. 2 Barku brought with him a sickle. He assaulted Bhanudas with sickle and dealt a blow over the stomach , Jaggu accused No.1 assaulted Bhanudas with a big nail in his hand over his head, Bhola accused No.3 dealt blows on the back of Bhanudas with the handle of the spade while accused No.4 Vithal also assaulted Bhanudas with iron pipe. When these persons were assaulting Bhanudas and Leelabai accused Nos. 5 to 7 were standing outside and instigating to finish Bhanudas. Bhanudas fell down and the accused ran away. A report of the incident was lodged by complainant Arun with the police upon which offences under Sections 307 read with Sections 147, 149, 149, 323, 324 were registered by the police. 4. Police filed a charge sheet before the Judicial Magistrate First Class. Judicial Magistrate, First Class committed the case of the accused to the Court of Sessions. Court of Sessions upon recording the evidence found all accused guilty as stated above. 5. I have heard the learned counsel for the accused/appellants and the State. 6. 4. Police filed a charge sheet before the Judicial Magistrate First Class. Judicial Magistrate, First Class committed the case of the accused to the Court of Sessions. Court of Sessions upon recording the evidence found all accused guilty as stated above. 5. I have heard the learned counsel for the accused/appellants and the State. 6. Before we proceed to discuss the evidence in the matter it would be necessary to mention here that upon a report lodged by Laxmibai accused No.5 police had also registered a crime against the present accused/appellants as can be seen from the copy of the F. I. R. Ex. 80. It is however not clear as to what happened with Criminal Case and whether accused therein were convicted or acquitted. 7. As many as 10 witnesses are examined. P. W. 1, 3, 4 and 7 are eye witnesses, No.2 is a Panch, No.5 is Medical Officer, No.6 is also Panch, No.8 is Police Officer who had registered the offence and No.9 is also a Medical officer. 8. Charge against all 7 accused is under Section 147, 148, 307, 323, 324 read with Section 149 Indian Penal Code. The charge has not been properly framed in the sense that there ought to have been separate description in respect of charge under each section. It is also not happily worded. Although the charge could be said to be defective it is certain that it made the accused aware of the charges they are facing. In any case the error in charge would not cause any prejudice to the accused. Further it must be made clear that there is no charge in regard to the incident of assault on Leelabai inside the house. Hence that part of the incident need not be considered at all. 9. Since the charge is one under Section 147 and 148 it would be necessary to find out if 5 or more persons formed an unlawful assembly and participated in the commission of the offence. If it is shown that less than 5 persons have taken charge in commission of the offence, charge under Section 147 and 148 must fail nor could aid of Section 149 be taken. 10. P. W. 3 Bhanudas the injured and the star witness states that initially accused Nos. 1 to 4 beat his mother Leelabai by entering the house while accused Nos. 10. P. W. 3 Bhanudas the injured and the star witness states that initially accused Nos. 1 to 4 beat his mother Leelabai by entering the house while accused Nos. 5 to 7 were standing outside. He had stated that he asked the accused not to beat her and then accused Nos. 1 to 4 went away and again came with weapons such as sickle, iron nail, handle of spade and a pipe. He speaks of assault on him but then states that accused No. 5 to 7 were standing outside and instigating. Even the contents of F. I. R. show that accused 5 to 7 were standing outside. Obviously, therefore, neither of accused Nos. 5 to 7 entered the house nor took part in the assault. Even otherwise it is rather unbelievable that when the four accused i.e. 1 to 4 entered the house twice, the other i.e. 5 to 7 would on both occasions merely stand outside. That is why their presence on the spot itself becomes doubtful. Further more if they had really shared common intention they would and could have taken part in assault. The fact that they did not lead to an inference they may not be present on spot. If they had not entered the house with the assailants in no case it would be said that either of the accused Nos. 5 to 7 was member of an unlawful assembly. There is no charge that any of them instigated or abated the commission of offence. Thus if accused Nos. 5 to 7 were not at all members of unlawful assembly then there remained only 4 persons. An assembly of 4 persons cannot be an unlawful assembly within the meaning of Section 147 Indian Penal Code. Ultimately neither of the accused can be held to be guilty of offence punishable under Section 147 or 148 of Indian Penal Code. As a further result even an aid of Section 149 cannot be taken. Since it is found that the charges under Section 147, 148 fail against accused No.5 to 7 they need to be acquitted of all the charges leveled against them. 11. Once again we turn to the evidence of P. W. 3 Bhanudas who is star witness and who has suffered serious injuries on his person. It is deposed by him that on the day of the incident accused Nos. 11. Once again we turn to the evidence of P. W. 3 Bhanudas who is star witness and who has suffered serious injuries on his person. It is deposed by him that on the day of the incident accused Nos. 1 to 4 were beating his mother and he asked them why they were beating her. He states that accused Nos. 1 to 4 then went home, brought the weapons and beat them and then accused No.1 Barku brought sickle, No.1 Jaggu brought iron nail, No.3 Bhola brought handle of spade, No.4 Vithal brought iron pipe. He states that accused No.2 Barku gave a blow of sickle on his stomach and head, accused No.3 dealt a blow with handle of spade on the back and No.1 Jaggu gave a blow on head with big iron nail on the head, No. 4 gave a blow by means of iron pipe on his back. It is stated specifically by P.W. 3 Bhanudas in the cross examination that after accused No.2 Barku dealt a blow and accused No.1 gave a blow and remaining accused also gave blow on his back. He also specifically stated that he saw accused No.1 Jaggu giving blow on head with iron nail. Thus he speaks of more than one blow on the back by spade handle and pipe on back and also attributes head injury with the use of nail. Even though the witness attributes such kind of injuries to different accused it would be necessary to see if there are corresponding injuries on the person of the injured Bhanudas. Ex. 73 is the Injury Certificate of P. W. 3 Bhanudas. The Medical officer found following injuries vide Ex. 73: 1. Abdominal Wound - 8 cm. Horizontal supraumbilical full thickness, piercing through peritonium. 2. Head - 2 incised wound on occipitoparietal region: a) 2 cm long full thickness b) 4 cm long full thickness On exploration . perforation of intestine 2 cm long . No specific identification marks noted. - Prognosis poor. It appears that Investigating Officer made queries with the Medical Officer as to whether injuries on the person of Bhanudas could be caused by the weapons that were referred to him. Medical Officer gave a second opinion Ex. 74 which is as follows: 1.Abdominal Injury can possibly be due to instrument (Lokhandi Koyata) c sharp blunt edges. 2. It appears that Investigating Officer made queries with the Medical Officer as to whether injuries on the person of Bhanudas could be caused by the weapons that were referred to him. Medical Officer gave a second opinion Ex. 74 which is as follows: 1.Abdominal Injury can possibly be due to instrument (Lokhandi Koyata) c sharp blunt edges. 2. Head Injury is not possible due to the produced Iron road c spiral striations. 3. There is no evidence of other injuries. 4. Lokhandi Koyta can cause head injuries inflicted. These two certificates make it (particularly Ex. 73) clear that one injury on abdomen and two injuries on head were found. Ex. 74 makes it further clear that no other injury was found except those. Ex. 74 also makes it clear that injuries on the person of Bhanudas were caused by sickle only. It is specifically stated in it that abdominal injury and the head injury could be caused by sickle and the injuries on the head could not be caused by an iron nail. All three injuries i.e. one abdominal and two head injuries can be attributed to use of sickle only. None of the weapons i. e. the nail or iron pipe could be said to be used in the assault. No injury was found on the back of the injured at all. Now the medical evidence does not at all support the theory of any injury on the back or any injury on head with a nail spade handle or pipe. If there are no corresponding injuries though specific use and specific spots are told by the witness, it has to be said that P. W. 3 Bhanudas is not telling the truth. Resultantly no injury can be attributed to either accused No. 1, 3 and 4. The presence of these accused i.e. 1,3 and 4 on spot, itself becomes doubtful. 12. It was contended that the injuries on the person of accused Vithal are not explained by the prosecution and witnesses deny knowledge of said injury to accused Vithal. Firstly, prosecution has admitted the medical certificate of Vithal filed on record. It is not that the prosecution has totally suppressed this fact. Learned counsel submitted that the witnesses are certainly suppressing the genesis and origin of the occurrence. Reliance was placed on a case reported in Lakshmi Singh and Others etc., Vs. Firstly, prosecution has admitted the medical certificate of Vithal filed on record. It is not that the prosecution has totally suppressed this fact. Learned counsel submitted that the witnesses are certainly suppressing the genesis and origin of the occurrence. Reliance was placed on a case reported in Lakshmi Singh and Others etc., Vs. State of Bihar AIR 1976 Supreme Court 2263. It is held as follows: In a murder case, the non explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences: (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. There may be cases where the nonexplanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. 13. The accused have also examined defence witness. D. W. 1 Shamibai has stated that scuffle was going on between P. W.4 Leelabai and accused No. 5 Laxmibai when accused No.4 Vithal came there. She also states that Leelabai's two sons also came there. She further stated that P. W. 1 Arun and P. W. 3 Bhanudas beat Vithal and Bhanudas received an injury with iron rod in his own hand. Thus she tries to explain the injury on the person of Bhanudas as self inflicted and caused with iron rod. The injuries to his stomach as well as head are proved to be caused by sharp cutting weapon. As such it is apparent that what the witness D. W. 1 Shamibai is telling is absolutely false. Thus she tries to explain the injury on the person of Bhanudas as self inflicted and caused with iron rod. The injuries to his stomach as well as head are proved to be caused by sharp cutting weapon. As such it is apparent that what the witness D. W. 1 Shamibai is telling is absolutely false. She too is not ready to make a clean breast. It is thus clear that accused too are not explaining the injuries on the person of Bhanudas which are of very serious nature. The intestine of Bhanudas had come out from the injury sustained by him. Evidence of P. W. 3 Bhanudas clearly goes to prove that it was accused No.2 Barku who caused injury to him. I have already pointed out that in cross examination of this witness detailed description as to how injury with sickle was caused is elicited. The credit of witness is no where shaken. On the other hand since these details are taken out in cross examination there was no question of the accused explaining any injury on the person of prosecution witness. Non explanation of injury by the prosecution witness assumes no importance. There is therefore no manner of doubt that it was accused No.2 who caused injury to Bhanudas. 14. We have seen that accused Nos. 5 to 7 were not members of unlawful assembly. They did not cause any injury to any person, and their presence on the spot is doubtful. As far as accused Nos. 1, 3 and 4 are concerned we have seen that none of the injury could be attributed to them and their presence on spot itself is doubtful. The benefit of this doubt must go to accused no.1, 3 to 7 and all of them therefore need to be acquitted of all offences of which they were convicted. 15. A very strange order of conviction is passed. Accused No. 1 to 4 are convicted and sentenced under Section 149 read with Section 147 and even accused Nos. 5 to 7 are also similarly convicted. Once accused Nos. 1 to 7 were held to be guilty under Section 147 they should have been convicted for offence under Section 307 with the help of Section 149 or atleast while convicting accused No.2 of offence under Section 307 aid of Section 149 should not have been taken. 5 to 7 are also similarly convicted. Once accused Nos. 1 to 7 were held to be guilty under Section 147 they should have been convicted for offence under Section 307 with the help of Section 149 or atleast while convicting accused No.2 of offence under Section 307 aid of Section 149 should not have been taken. Be that as it may, I find that all accused need to be acquitted of offence under Sections 147, 148 and 149 of Indian Penal Code. Not only it is found that there was no unlawful assembly but the evidence also does not make out a case against accused Nos. 1, 3 to 7. Therefore, they also cannot be convicted under Section 307. The only person who can be held guilty is accused No.2 Barku. It would however be necessary to find out if ingredient of Section 307 is made out. In this regard it is stated by P. W. 5 Bhojraj Medical Officer that injury No.1 on abdomen of Bhanudas was very serious and it might have caused his death. Looking to the nature of the injury and opinion of the Medical Officer the injury was such that it would have caused the death had proper treatment been not given to him. Accused Barku is rightly held guilty of offence under Section 307. Hence I pass the following order: Accused Nos. 1, 3 to 7 are acquitted of the offences of which they were convicted. Their conviction is set aside. Their bail bonds are cancelled. Fine if paid by them be refunded to them. Conviction of accused No.2 Barku under Section 307 Indian Penal Code is however confirmed. The sentence is also confirmed. He is acquitted of offence under Section 147 and 149. Appeal therefore stands partly allowed.