JUDGMENT : N.K. Gupta, J. 1. The appellants have preferred the present appeal against the judgment dated 5.12.2007 passed by the learned 11th Additional Sessions Judge, Jabalpur in S.T. No. 42/2007, whereby all of them were convicted of offence punishable under Sections 294,323/34 of IPC and sentenced to fine of Rs. 200/- and rigorous imprisonment for one year with fine of Rs. 200/- respectively, in default of payment of fine, further rigorous imprisonment for one month was also directed. 2. The prosecution's case, in short, is that, on 21.12.2006, at about 8.35 p.m., the complainant Pawan Jharia (P.W.1) was present near his residence at Nai Basti, Subhasnagar, Ranjhi, Jabalpur. He had lent a sum of Rs. 500/- to the appellant Bindu @ Raghvendra and thereafter, he was demanding the same from him. At about 8 p.m., he went to the shop of appellant Bindu @ Raghvendra to demand the amount. Bindu abused him with obscene words and started quarrelling with him. In the meantime, the appellants Nandu, brother of Bindu Jharia and Mahesh, father of Bindu Jharia also reached to the spot and started abusing him with obscene words. Thereafter, on exhortation done by appellants Nandu and Mahesh, the appellant Bindu gave a powerful blow of stick on the head of the complainant. The complainant sustained a deep injury on his head and blood started oozing from the wound. He was taken to the Police Station Ranjhi, where he had lodged the FIR, Ex.P/1. He was referred for his medico legal examination and treatment to Victoria Hospital, Jabalpur, where Dr. J. Arora (P.W.5) had examined him and gave his report, Ex.P/3. A lacerated wound was found on left side of his head, which was 7 X 2 inches in size and deep upto muscles. He was admitted in the hospital. After due investigation, a charge-sheet was filed before the JMFC, Jabalpur, who committed the case to the Court of Sessions and ultimately, it was transferred to 11th Additional Sessions Judge, Jabalpur. 3. The appellants abjured their guilt. They took a plea that the complainant Pawan and his two companions started unlawful recovery of Rs. 500/- from the appellant. On shouting of the appellant, when crowd of citizens was gathered then, they started running and the complainant sustained such injuries due to fall while running. In defence, Arun Govind (D.W.1) was examined. 4. The appellants abjured their guilt. They took a plea that the complainant Pawan and his two companions started unlawful recovery of Rs. 500/- from the appellant. On shouting of the appellant, when crowd of citizens was gathered then, they started running and the complainant sustained such injuries due to fall while running. In defence, Arun Govind (D.W.1) was examined. 4. Eleventh Additional Sessions Judge, after considering the evidence adduced by the parties, acquitted the appellants from the charge of offence under Section 307/34 of IPC but, convicted them of offence under Section 294 and 323/34 of IPC and sentenced as mentioned above. 5. There was no information from the side of appellants since 21.7.2010 and on the date of final hearing, none appeared for the appellants. Hence, Shri Ajay Tamrakar, Advocate, who has vide experience to deal with the criminal cases and whose name is there in the panel of High Court Legal Services Authority, was appointed to argue the matter on behalf of the appellants. Thereafter, I have heard the learned counsel for the parties at length. 6. So far as the offence under Section 294 of IPC is concerned, the complainant Pawan (P.W.1) has stated that initially when he reached to the house of the appellant Bindu, his father started abusing him with obscene words. Bablu (P.W.2) has stated that such obscene words were told by all of the appellants. Vikki Tiwari (P.W.3) who reached to the spot after sometime, did not say anything about such abusement. In FIR, Ex.P/1, it was mentioned by the complainant that initially when he reached to the shop of Bindu then, Bindu abused him with obscene words and when the appellants Nandu and Mahesh came to the spot, they also started abusing him with obscene words. Looking to the inter se material contradictions between the statements of eye witnesses and contradictions in the statements of complainant with FIR, it appears that the complainant did not say against Bindu and Nandu that they abused him. He concentrated only against Mahesh, father of Bindu. When the FIR is not a substantive piece of evidence, by evidence of these eye witnesses, where Bablu (P.W.2) has stated in omnibus manner, it appears that the complainant did not allege that the appellant Bindu or Nandu abused him with obscene words. He concentrated only against Mahesh, father of Bindu. When the FIR is not a substantive piece of evidence, by evidence of these eye witnesses, where Bablu (P.W.2) has stated in omnibus manner, it appears that the complainant did not allege that the appellant Bindu or Nandu abused him with obscene words. Hence, Additional Sessions Judge has committed an error in convicting the appellants Nandu and Bindu of offence under Section 294 of IPC. 7. So far as the case of appellant Mahesh is concerned, the language of words told by Mahesh is differently stated by Pawan Jharia, whereas it was different in the FIR, Ex.P/1. Bablu (P.W.2) has stated that the appellants were abusing with filthy abuses but, he did not state the language of abusement. The witness Vikki Tiwari (P.W.3) reached to the spot with delay and therefore, he could not tell anything relating to abusement by obscene words. Under these circumstances, Pawan Jharia could not prove beyond doubt that even Mahesh uttered obscene words before him. 8. After considering the statements of Pawan (P.W.1), Bablu (P.W.2) and Vikki (P.W.3), it appears that during the quarrel, various by-passers intervened in the quarrel and they have gathered and therefore, it is established that the incident had taken place at a public place. The complainant Pawan has stated that he felt bad after hearing such words. For causing annoyance, it is not necessary that words should be obscene words. If someone abuses then, the person who is hearing such abuses may feel annoyance due to such abusements. Hence, the version of complainant can be accepted that by hearing abuses, annoyance was caused to atleast the complainant Pawan Jharia. However, it is not proved beyond doubt that the appellants Nandu or Bindu had uttered any obscene word or they abused the complainant, whereas it is not proved beyond doubt that the appellant Mahesh abused the victim with obscene words. He had spoken some filthy abuses. Hence, none of the appellants could be convicted of offence under Section 294of IPC. 11th Additional Sessions Judge has committed an error in convicting the appellants of offence under Section 294 of IPC. 9. Pawan (P.W.1), Bablu (P.W.2) and Vikki (P.W.3) have stated that the appellants assaulted the victim Pawan with a stick. Bablu (P.W.2) has also stated that the complainant Pawan fell down on the Earth and became unconscious. 11th Additional Sessions Judge has committed an error in convicting the appellants of offence under Section 294 of IPC. 9. Pawan (P.W.1), Bablu (P.W.2) and Vikki (P.W.3) have stated that the appellants assaulted the victim Pawan with a stick. Bablu (P.W.2) has also stated that the complainant Pawan fell down on the Earth and became unconscious. Thereafter, again he was beaten with a stick by the appellants Nandu and Mahesh. In this context, if view of Dr. J.Arora (P.W.5) is considered as recorded in MLC report, Ex.P/3 then, it would be apparent that the complainant sustained a single injury on left side of his head caused by hard and blunt object. Looking to the MLC report, Ex.P/3, it appears that out of the appellants, only one appellant has given a single blow on the head of the victim. In FIR, Ex.P/1, it was alleged that on exhortation done by Nandu and Mahesh, Bindu gave a blow of stick (Lathi) on the head of the victim. Now, the complainant Pawan says that Mahesh gave a blow of Patiya on his head and remaining appellants assaulted him by kicks and fists. Bablu has stated that initially, Nandu and Mahesh assaulted the victim Pawan, causing him unconscious, whereas Vikki (P.W.3) has stated that Mahesh gave a blow of stick on the head of complainant Pawan. After considering the material contradiction between the statements of these eye witnesses and statements of the complainant with the FIR, the entire story appears to be doubtful. In FIR, the complainant had alleged that on exhortation done by other appellants, the appellant Bindu gave a powerful blow of lathi on his head, whereas before the trial Court, he has stated that Mahesh gave a blow of Patiya (wooden slab). He has not only changed the weapon but, also changed his allegation. He shifted his allegation from the appellant Bindu to appellant Mahesh. He had claimed that he was unconscious and FIR was lodged by his mother and thereafter, he put his signature on the FIR. However, Bablu and Vikki did not say anything about lodging the FIR. Inspector A.K. Bajpai (P.W.7), who recorded the FIR, Ex.P/1 has clearly stated that the complainant Pawan himself had lodged the FIR and therefore, the theory of unconsciousness caused to the complainant Pawan appears to be false. However, Bablu and Vikki did not say anything about lodging the FIR. Inspector A.K. Bajpai (P.W.7), who recorded the FIR, Ex.P/1 has clearly stated that the complainant Pawan himself had lodged the FIR and therefore, the theory of unconsciousness caused to the complainant Pawan appears to be false. The witness Bablu and Vikki are friends of the complainant Pawan and they are supporting the story of Pawan without any reason. If all the appellants would have assaulted the victim by sticks, kicks and fists then, Pawan would have sustained so many injuries and he would have complained about bodily pain to the doctor on various parts of his body but, there is no such history told by the concerned doctor. Hence, it appears that these witnesses are tutored witnesses and these witnesses were not present at the spot at the time of incident. 10. The single testimony of complainant cannot be believed. He sustained injury on his head, his injury was duly proved by Dr. J. Arora (P.W.5). However, his version is not duly proved by FIR. On the contrary, a material contradiction is visible between the version of the complainant and his version as mentioned in the FIR. If he was assaulted by the appellant Bindu then, why he was telling the name of appellant Mahesh before the Court. 11. The defence took a plea that the complainant was making an unlawful recovery from the appellants and when crowd was collected, he started running and he sustained the injury due to fall. In this context, defence witness Arun Govind (D.W.1) was examined, who told the story of fall of the complainant Pawan. Dr. J. Arora (P.W.3) in para 4 of his cross-examination has admitted that injury caused to the complainant Pawan could be caused due to fall while running. Under these circumstances, it is highly doubtful that the appellants Bindu or Mahesh had assaulted the victim by stick, causing an injury. 12. It is not a case, where the victim could not see that who assaulted him out of the appellants. It is a case, where he had alleged against the appellant Bindu in FIR that he assaulted on his head and therefore, possibility cannot be ruled out that no assault was caused by the appellants and the complainant Pawan had sustained the injury due to any other reason like fall during running. It is a case, where he had alleged against the appellant Bindu in FIR that he assaulted on his head and therefore, possibility cannot be ruled out that no assault was caused by the appellants and the complainant Pawan had sustained the injury due to any other reason like fall during running. The appellants could have been convicted of offence under Section 323 of IPC on the basis of their common intention but, the witnesses could not prove that except of the main accused, any of the appellants had assaulted the complainant Pawan because the complainant sustained a single injury. Similarly, Pawan had alleged about exhortation done by Nandu and Mahesh in FIR but, he did not prove such an exhortation in his evidence and therefore, the eye witnesses could not prove that remaining appellants had any common intention with the main accused. Hence, the appellants cannot be convicted of offence under Section 323 of IPC with help of Section 34 of IPC. It is not established beyond doubt that out of these appellants, anyone assaulted the victim causing him a simple injury. It is not established that the appellants had common intention to voluntarily cause injury to the complainant Pawan and therefore, none of the appellants could be convicted of offence under Section 323 of IPC either directly or with help of Section 34 of IPC. The 11th Additional Sessions Judge has committed an error in convicting the appellants of the aforesaid offences. 13. On the basis of the aforesaid discussion, the appellants cannot be convicted of offence under Section 294, 323/34 of IPC. Hence, appeal filed by the appellants appears to be acceptable and consequently, it is hereby accepted. Conviction as well as sentence of offence under Section 323/34 and 294 of IPC are hereby set aside. The appellants are acquitted from all the charges appended against them. They would be entitled to get the fine amount back, if they have deposited the same before the trial Court. 14. The appellants are on bail. Their presence is no more required before this Court and therefore, it is directed that their bail bonds shall stand discharged. 15. Copy of the order be sent to the trial Court alongwith its record for information and compliance.