JUDGMENT : S. K. Sahoo, J. The petitioners namely Dhanchit Harijan, Susila Dayalu, Koresh Dayalu, Nirmala Dayalu and Jhiska Dayalu have preferred this revision petition challenging the impugned judgment and order dated 23.01.1993 passed by the learned C.J.M -cum-Assistant Sessions Judge, Jeypore in Sessions Case No.28 of 1992 which was confirmed by the learned Addl. Sessions Judge, Jeypore, Koraput vide judgment and order dated 13.5.1999 in Criminal Appeal No.65 of 1993. The petitioners were charged under sections 148, 452/149, 427/149 and 307/149 of the Indian Penal Code and they were found guilty of the offences charged and sentenced to undergo R.I. for one year on each count under sections 148, 452, 427 and 307 of the Indian Penal Code and the sentences were directed to run concurrently and further sentenced to pay a fine of Rs.500/- (five hundred), in default, to undergo R.I. for one month on each count under sections 307 and 452 of the Indian Penal Code. 2. The prosecution case, in short, is that on 26.12.1991 at about 3.00 p.m., the petitioners being armed with axe, spears and lathis entered inside the dwelling house of the informant Narasingha Sethi (P.W.1) and caused damage to the household articles and also destroyed the commodities of his shop room and assaulted Sakuntala Sethi (P.W.2), the wife of the informant and Premnath Negi (P.W.3), who is the brother of P.W.2. The informant was not present in his house at the time of occurrence. Subsequently, when he arrived at his house and came to know about the incident, he presented a written report (Ext.1) before the Officer in Charge, Kotpad Police Station. P.W.9 Pratap Ch. Parida who was the A.S.I. of Police attached to Kotpad Police Station, on receipt of the written report (Ext.1) from the informant (P.W.1), treated the same as F.I.R. and registered Kotpad P.S. Case No.130 of 1991 under sections 147/148/452/ 427/326/379/149 of the Indian Penal Code. He started investigation of the case in absence of the Officer in charge and during course of investigation, he visited the spot, examined the informant and other witnesses, sent the injured persons P.W.2 and P.W.3 for their medical examination to P.H.C., Kotpad where they were examined by P.W.4 Dr. Debi Prasad Pattnaik. The Investigating Officer seized one T.V., some broken glass pieces, a torn piece of gunny bag having stained with blood, one broken tea pot under seizure list Ext.5. Debi Prasad Pattnaik. The Investigating Officer seized one T.V., some broken glass pieces, a torn piece of gunny bag having stained with blood, one broken tea pot under seizure list Ext.5. He also seized broken sound box, some other commodities, weighing scale and tea packets etc. under seizure list Ext.6. He searched the houses of the petitioners, seized one spear (M.O.I) from the house of petitioner no.3 under seizure list Ext.7, seized a piece of cloth stained with blood under seizure list Ext.8 and on 10.2.1992, he handed over the charge of investigation to the Officer in charge of Kotpad Police Station namely Gadadhar Pradhan (P.W.10) who received the injury reports of the injured persons of P.Ws.2 and 3, made query to the doctor regarding possibility of infliction of the injury on P.W.2 by the seized spear (M.O.I) and received the opinion under Ext.4 and after completion of investigation, he submitted charge sheet on 25.4.1992 under sections 147/148/452/427/307/506/149 of the Indian Penal Code. 3. After observing due committal formalities, the case of the petitioners was committed to the Court of Session for trial where the learned C.J.M. -cum-Asst. Sessions Judge, Jeypore framed charges on 03.09.1992 and since the petitioners refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute them and to establish their guilt. 4. In order to establish its case, the prosecution examined ten witnesses. P.W.1 Narasingha Sethi is the informant in the case and he is a post-occurrence witness and he stated that his wife (P.W.2) narrated about the incident before him. P.W.2 Sakuntala Sethi is one of the injured and she is the wife of the informant and she stated that not only the petitioners caused damage to the household articles but further stated that petitioner No.1 gave a blow by means of spear aiming at her and it hit her right palm causing punctured wound. P.W.3 Premnath Negi is the brother of P.W.2 and he is also another injured and he stated that petitioner No.1 gave him a kick blow and also assaulted P.W.2 by means of a spear. P.W.4 Dr. Debi Pr. Pattnaik was the Medical Officer attached to P.H.C., Kotpad who on 26.12.1991 examined P.W.2 as well as P.W.3 on police requisition and found injuries on their person. He proved the injury reports vide Exts.2 and 3. P.W.4 Dr. Debi Pr. Pattnaik was the Medical Officer attached to P.H.C., Kotpad who on 26.12.1991 examined P.W.2 as well as P.W.3 on police requisition and found injuries on their person. He proved the injury reports vide Exts.2 and 3. P.W.5 M. Lachmi, P.W.6 Laxman Pradhan and P.W.7 Subhasini Mohanty did not support the prosecution case for which they were declared hostile. P.W.8. Narasingh Singh is a witness to the seizure of certain household articles under seizure lists Exts.5 and 6. He also stated about the recovery of one spear from the house of the petitioner No.3 Koresh Dayalu which was seized under seizure list Ext.7. He was also declared hostile by the prosecution. P.W.9 Pratap Ch. Parida and P.W.10 Gadadhar Pradhan are the Investigating Officers of the case. The prosecution exhibited eight documents. Ext.1 is the written report, Exts.2 and 3 are the injury reports, Ext.4 is the opinion of P.W.4, Exts. 5, 6, 7 and 8 are the seizure lists. The prosecution has also proved five material objects. M.O.I is the spear, M.O. II is the T.V, M.O.III is the weighing scale, M.O.IV is the sound box and M.O.V is the packet containing the other house hold articles. 5. The defence plea of the petitioners during trial was that P.W.3 Premnath Negi assaulted petitioner No.1 Dhanchit Harijan on his head and when the relations of petitioner no.1 came to the house of the informant to confront P.W.3 about the assault, P.W.3 tried to close the door but the relations of petitioner no.1 forced open the door and entered inside the house and during that process of pushing the door, P.W.2 sustained injury on her right palm. It is the further defence plea that the petitioner No.1 sustained injury due to assault made by P.W.3 and he was also hospitalized for some days. One witness namely Gobinda Jani was examined on behalf of the defence. 6. Mr. Biswa Kumar Mishra, learned counsel for the petitioners contended that there are no such materials available on record to attract the ingredients of offence under section 307 of the Indian Penal Code and the learned Trial Court as well as the Appellate Court have not considered the oral evidence vis-a-vis medical evidence properly which has resulted in miscarriage of justice. Biswa Kumar Mishra, learned counsel for the petitioners contended that there are no such materials available on record to attract the ingredients of offence under section 307 of the Indian Penal Code and the learned Trial Court as well as the Appellate Court have not considered the oral evidence vis-a-vis medical evidence properly which has resulted in miscarriage of justice. He further contends that the petitioners Nos.3, 4 and 5 are ladies and in the meantime, about 25 years have passed and therefore, in case this Court upholds the impugned judgment and order of conviction, lenient sentence may be imposed on the petitioners. Mr. Jyoti Prakash Patra, learned Addl. Standing Counsel for the State supported the impugned judgment and contended that in view of the concurrent findings of facts by the learned Trial Court as well as Appellate Court, there is no scope of interference by this Court in exercise of the revisional jurisdiction and therefore, the revision petition should be dismissed. 7. Law is well settled that the concurrent findings of facts by the learned Trial Court and Appellate Court cannot be interfered with in revision unless such findings are legally unfounded and unsustainable, grossly erroneous and perverse which has resulted in causing miscarriage of justice. In special and exceptional circumstances, a revisional Court can make a reappraisal of the evidence. 8. Adverting to the contentions raised by the learned counsel for the petitioners that the ingredients of the offence under section 307 of the Indian Penal Code are not attracted, on perusal of the evidence of doctor P.W.4 Debi Prasad Pattnaik, it appears that on 16.12.1991 on police requisition, he examined P.W.3 Permananda Negi and noticed two abrasions, one of size 1 x 1/2” x skin deep on the right temporal region and another of size 2” x 1” x skin deep on the left shoulder region and he has opined that both the injuries are simple in nature and probably caused by hard and blunt weapon within twelve hours of his examination. P.W.4 also examined P.W.2 Sakuntala Sethy and noticed two incised wounds, one of size 2” x ½” x 2” on the lateral side of the right palm and another of size 1” x ¼” x 2” on the medial side of the dorsum of left hand and both the injuries were opined to be simple in nature and probably caused by sharp cutting weapon within six hours of the examination. To effectively adjudicate the contentions raised, at this stage, it is necessary to analyse the oral evidence of the two injured persons. P.W.2 Sakuntala Sethi has stated in her chief examination that petitioner No.1 Dhanchit Harijan gave a kick blow to her brother Premananda Negi (P.W.3) but in the cross examination, she has stated that hearing hullah, when she came to the shop room from the kitchen which was on the back side her living room, by then her brother was already assaulted and he was proceeding towards the kitchen. Thus in view of such statement of P.W.2, it appears that she is not an eye witnesses to the actual assault on her brother (P.W.3). Similarly P.W. 3 has stated in his chief examination that petitioner No.1 gave him a kick blow. At this juncture, if the injury report of P.W.3 is taken into consideration, it is noticed that the doctor (P.W.4) has found two abrasions on his right temporal region and left shoulder region. There is no evidence that due to kick blow, P.W.3 fell down and received any injury. The doctor has stated that those injuries on P.W.3 were probably caused by hard and blunt weapon. Thus, so far as the assault on P.W.3 by petitioner No.1 is concerned, the ocular testimony of P.Ws.2 and 3 are contradicted by the medical evidence and therefore, it cannot be said that the prosecution has proved beyond all reasonable doubt that P.W.3 sustained injury on his person due to assault by petitioner No.1. Similarly, so far as the assault on P.W.2 is concerned, she has stated that petitioner No.1 took a spear from his mother-in-law and aimed at her which pierced through her right palm causing punctured wound. She further stated in her cross-examination that when she wanted to ward off the spear, it punctured her right palm. P.W.3 has stated that petitioner No.1 aimed the spear at P.W.2 which struck her right palm causing punctured injury. She further stated in her cross-examination that when she wanted to ward off the spear, it punctured her right palm. P.W.3 has stated that petitioner No.1 aimed the spear at P.W.2 which struck her right palm causing punctured injury. At this juncture, if the evidence of the doctor (P.W.4) is taken into consideration, it appears that P.W.4 has noticed two incised wounds, one on the lateral side of the right palm and the other on the dorsum aspect of the left hand. Though both P.W.2 and P.W.3 have stated that P.W.2 has sustained only one injury on the right hand but the injury report indicates that the injury was on the left hand also. The injured (P.W.2) has not stated as to how she sustained injury on the left hand. Therefore, it can be said that there are discrepancies in the ocular testimony vis-a-vis the medical evidence. In order to attract the ingredients of the offence under section 307 of the Indian Penal Code, though it is not essential that bodily injury capable of causing death should have been inflicted but the nature of injury actually caused may often give considerable assistance in coming to a finding regarding the intention of the accused and such intention can also be deduced from other surrounding circumstances and the Court has to see whether the act, irrespective of its result was done with the intention or knowledge and under circumstances mentioned in the section 307 of the Indian Penal Code. In the present case, when the ocular testimony of the two witnesses are contradicted by the medical evidence, I am not inclined to accept such evidence and therefore, I am of the view that the prosecution has failed to establish the charge under section 307 of the Indian Penal Code against the petitioners beyond all reasonable doubt and accordingly, the petitioners are acquitted of such charge. 9. It is found from the evidence of the Investigating Officer that on 26.12.1991, he apprehended petitioner No.1 and found head injury and accordingly sent him for medical examination and petitioner No.1 was discharged from the hospital on 29.12.1991. He further stated that during investigation, he came to know that petitioner No.1 sustained injury due to assault by P.W.3 and that he has not obtained any injury report of petitioner No.1. He further stated that during investigation, he came to know that petitioner No.1 sustained injury due to assault by P.W.3 and that he has not obtained any injury report of petitioner No.1. Thus, even though the commission of cognizable offence relating to the assault on petitioner No.1 was within the knowledge of the Investigating Officer, P.W.9 did not register any FIR and even though he sent the petitioner No.1 for medical examination where he was hospitalized for about four days but he did not collect any injury report. This shows the malafide intention on the part of the Investigating Officer in conducting a fair investigation. Lapses on the part of the Investigating Officer in not registering the case against P.W.3 and not collecting the injury report of the petitioner No.3 has caused serious prejudice to the accused persons. 10. Coming to the conviction of the petitioners under sections 452 and 427 of the Indian Penal Code, the relevant witnesses are P.Ws. 2 and 3. Both the witnesses have stated in an omnibus manner that the accused persons damaged their T.V. and other commodities inside the shop. In absence of any specific material against any of the petitioners particularly against the three ladies i.e. petitioner nos. 2, 4 and 5, it is very difficult to hold the petitioners liable under the aforesaid offences. No doubt the Investigating Officer has seized some articles from the spot and prepared the seizure lists but in absence of clinching material to that effect, it would not be proper to hold the petitioners guilty under sections 452 and 427 of the Indian Penal Code. Accordingly, I am of the view that the prosecution has also failed to establish the charge under sections 452 and 427 of the Indian Penal Code. 11. So far as the offence under section 148 of the Indian Penal Code is concerned, in order to establish such charge, it is the requirement of law that the prosecution must prove that the accused persons were armed with deadly weapons or with anything which, used as weapon of offence, is likely to cause death while committing rioting. If one of the members of an unlawful assembly is armed with a deadly weapon, the other members cannot be convicted under such offence. It is only the actual person so armed who can be charged under it. If one of the members of an unlawful assembly is armed with a deadly weapon, the other members cannot be convicted under such offence. It is only the actual person so armed who can be charged under it. In other words, a person cannot be found guilty under this section unless he actually has a dangerous weapon with him. P.W.2 has stated that one lady accused was armed with a spear and petitioner No.1 snatched away the spear from her mother-in-law. Though P.W.3 has stated that accused persons were holding lathies but P.W.2 has not made any such statement and therefore, a doubt is created regarding holding of deadly weapons by all the petitioners and therefore, I am of the view that the prosecution has failed to establish the charge under section 148 of the Indian Penal Code. 12. In view of the aforesaid discussion, I am of the view that the findings of Courts below are legally unfounded and unsustainable and both the Courts have not properly assessed the evidence on record and the faulty appreciation of evidence and non-consideration of material evidence available on record has resulted in miscarriage of justice and therefore, the impugned judgment and order of conviction of the petitioners under sections 148, 452/149, 427/149, 307/149 of the Indian Penal Code and sentence passed there under cannot be sustained in the eye of law and accordingly, the same is hereby set aside. The petitioners are acquitted of all the charges. The petitioners have been released on bail by this Court during pending of the revision petition. They are discharged from the liability of their bail bonds. Their personal bonds and surety bonds stand cancelled. Accordingly, the CRLREV is allowed.