JUDGMENT : Ratnaker Bhengra, J. The present appeal is directed against the judgment of conviction and order of sentence dated 30.05.2003 passed by Sri Indradeo Mishra, Additional Sessions Judge (FTC-I), Chatra in Sessions Trial No. 338 of 1995 arising out of Basistha Nagar P.S. Case No. 8 of 1993 by which the learned court below has convicted all these appellants under sections 147, 148, 149, 323 and 342 of the Indian Penal Code and sentenced each of them to undergo R.I. for one year under section 147, R. I. for 2 years under section 148, R.I. for 2 years under section 149, R.I. for 1 year under section 323 and one year under section 342 of the Indian Penal Code and also passed order that the sentences will run concurrently. 2. The prosecution case as per the fardbayan of one Bariar Ganjhu is that on 09.02.1993 at about 5 p.m., he was at his house. In the meantime, near about 200 to 250 M.C.C. extremists armed with Bharathi gun came and caught him. They also caught hold to Briksh Bhuiyan, Karu Bhuiyan, Krishna Bhuiyan, Shrinath Bhuiyan, Birani Bhuiyan, Fagu Ganjhu, Maina Ganjhu. The extremists made pressured upon the informant and the above co-villagers to join their party (M.C.C.) otherwise they will have to face the dire consequences. They took them in the forest. The accused persons also caught hold of the villagers of Paharpur, namely, Dhaneshwar Yadav, Bishuni Yadav, Karu Bhuiyan, Puran Bhuiyan, Inod Bhuiyan, who were returning from the forest and the accused persons also made pressure to them to join their party. The accused persons tried to press upon the informant and his associates the member of the Lok Samiti to join their party otherwise they have to face dire consequences. They will not allow them to graze the animals in the forest and they will set fire their houses. The accused persons released them in the night. The informant and his associates identified the accused Basdeo Yadav, Jagdeo Yadav, Sarju Yadav, Bodhan Yadav, Hulash Yadav, Binod Mahato, Naresh Thakur, Babuni Yadav of village Paharpur, Kauleshwar Yadav, Buta Yadav, Madheswar Yadav, Bijay Yadav, of village Salaiya, Sukan Yadav, Kauleshwar Yadav, Neman Mahto and Kuldeep Yadav of village Postiya. The accused persons released them in the night. The informant and his associates identified the accused Basdeo Yadav, Jagdeo Yadav, Sarju Yadav, Bodhan Yadav, Hulash Yadav, Binod Mahato, Naresh Thakur, Babuni Yadav of village Paharpur, Kauleshwar Yadav, Buta Yadav, Madheswar Yadav, Bijay Yadav, of village Salaiya, Sukan Yadav, Kauleshwar Yadav, Neman Mahto and Kuldeep Yadav of village Postiya. It is further alleged that on the following date in the morning the informant got information that Prayag Bhuiyan and Lakho Bhuiyan kidnapped one Dhani Bhuiyan with the intention to kill him. He was kidnapped from his house and was taken away to the forest. While the informant was going to inform the matter to the police Station, he saw some unknown persons, who were moving. So he could not inform the matter to the police. It is further alleged that on the same day at about 12 a.m., the accused persons caught hold Thakuri Yadav, Bandhu Yadav of village Paharpur and they pressed upon them to join their party (M.C.C.) and they tagged the hands of both the persons and assaulted them. Thereafter the informant came at police station along with Thakuri Yadav and Chaturgun Yadav. 3. On the basis of fardbayan, formal FIR was registered bearing B. Nagar P.S. Case No. 08 of 1993. Investigation commenced and accused was charge sheeted, cognizance was taken and the case was committed to the court of sessions. The charges were framed and explained to the accused persons to which they pleaded not guilty and claimed to be tried. 4. The prosecution has examined altogether sixteen witnesses and at the conclusion of the trial, the learned Additional Sessions Judge (FTC-1), Chatra, held the appellants guilty under sections 147,148,149,323 and 342 of the Indian Penal Code and convicted them as aforesaid. Hence, this appeal. 5. Out of the 16 prosecution witnesses, 6 witnesses were eye witness and they have been examined and they are P.W.2, P.W. 9, P.W.11, P.W. 12, P.W. 13 and P.W. 14 (informant himself). The following witnesses have been declared hostile P.W. 1, P.W. 4, P.W. 6, P.W. 7 and P.W. 8. P.W. 15 is Dr. P.K. Sinha. 6. P.W. 14, Bariar Ganjhu is the informant. He has deposed that the time was round about 5 p.m. At that time he was in his house when around 250 persons came and took him to the jungle and they said to support M.C.C.. P.W. 15 is Dr. P.K. Sinha. 6. P.W. 14, Bariar Ganjhu is the informant. He has deposed that the time was round about 5 p.m. At that time he was in his house when around 250 persons came and took him to the jungle and they said to support M.C.C.. When he/they refused, they were threatened that their houses will be burnt. He has named many persons who had taken them to the forest amongst them appellant no. 1, appellant no. 2, appellant no. 4, appellant no. 5, appellant no. 6 and appellant no. 11. He has further deposed that Thakuri Yadav had also gone along with him to the police station where he had given his statement to the police (Daroga Ji) and he has written it and read it out to them and on which, he has affixed his thumb impression. 7. P.W. 2, Thakuri Yadav has deposed that the incident is of 3 years ago and he was grazing his cattle when 10 to 12 persons came armed with Lathi, Bharathi Gun and tired him and assaulted him and told him to join M.C.C., after which they left him. He has, however, deposed that he does not recognize anyone. 8. P.W. 9 Brikash Bhuiyan has named some of the appellants but gist of his evidence is that he was taken by some persons including the appellants and asked to join M.C.C. if he does not join then he will be not be left. 9. P.W. 11 has deposed that 250 persons were there who took them to jungle. They did not hit or assault him but only constrained. Even his relatives, who are among those, who took them and they were left to go after sometime in the evening. He has named appellant nos. 1, 2, 3, 4, 5, 10 and 11, who were present, of whom he said some were relatives. 10. P.W. 12 Binniya Bhuiyan has deposed that around 5 p.m. Appellant nos. 1,2,4 and 5 said let us go to the jungle. If you do not come then we will make you climb up the hill. Then they took them to jungle and left them. He has recognized appellant nos. 1, 2, 4, 5, 6, 10 and 11 in court. 11. P.W. 13 is Shivnath Bhuiyan. He has deposed that he was taken to barren spot on the west side. If you do not come then we will make you climb up the hill. Then they took them to jungle and left them. He has recognized appellant nos. 1, 2, 4, 5, 6, 10 and 11 in court. 11. P.W. 13 is Shivnath Bhuiyan. He has deposed that he was taken to barren spot on the west side. When his mother and sister came there they were abused and sent away. They then took him to hill and threatened him. He recognized appellant nos. 1, 2, 4 and 5. 12. P.W.15 Dr. P.K. Sinha has deposed that the injury report of Thakuri Yadav s/o Pun Yadav resident of Paharpur dated 11.02.1993 is in pen and signature of Dr. S. Ahamad the then Medical Officer, P.H.C., Jori. He has proved the signature and writing of the said doctor which is marked Ext.2. 13. The learned counsel for the appellants has said that first and foremost, no offence is made out under any of the sections i.e. under section 147, 148, 149, 323 and 342 of the Indian Penal Code because the ingredients of the sections are not made out. He has said that no overt act is attributed to any specific person. Allegations are only omnibus in nature and section 149 of the IPC has just been brought in to involve each and everyone out of 200-250 persons, alleged to have been involved in the incident, so, on the failure of prosecution to pin point, exact culprits, if any, section 149 IPC has been alleged against the mob of persons. He has further said that out of the 16 witnesses, P.W. 1,4,6,7, and 8 are hostile witnesses and other witnesses are tendered and P.W. 15 is doctor and the evidence of so called eye witnesses are also full of defects and weakness and cannot be used to convict the appellants. On a plain reading of evidences of eye witnesses itself it can be seen that the offences are not made out. He has further said that the use of the word M.C.C. (Maoist Co-ordination Committee) or the allegation of being MCC is only there to aggravate the allegations but no one out of the 200-250 odd persons, have been found to be the Maoist. He has further said that the use of the word M.C.C. (Maoist Co-ordination Committee) or the allegation of being MCC is only there to aggravate the allegations but no one out of the 200-250 odd persons, have been found to be the Maoist. On the other hand, it is assumed that some of these persons out of 200250 are Maoists then the appellants being ordinary and simple villagers are themselves also victims of Maoist and hence being coerced by the Maoists, they have been made accused and charged with the offences. He has said that among the eye witnesses, P.W. 2 has not supported the case of the prosecution. P.W. 9 has deposed that after taking them to the jungle, they were let free to go and think it over and also there is no mention of any assault by anyone. Then P.W. 11 has not indicated any beating or assault and that he said even their relatives were among those, who took them away and they were let free after sometime. The evidence of P.W. 2, P.W. 9 and 11 would indicate that the ingredients of the various sections under which appellants were convicted, are not made out. Learned counsel further submitted that even the evidence of P.W. 12 is that they went to the jungle with the appellants, they were made to climb up to the hill and taken to jungle and left and P.W. 13 has said they were taken to the hill and threatened. The evidence of P.W. 14 (informant) is also basically about threatening and burning of his house, but his house was not actually burnt. 14. On the other hand, learned Additional P.P. has said that definitely it was a mob that took them away and in the FIR appellants have been named and P.W. 12 recognized appellants, 1, 2, 4, 5, 6, 10 and 11 in Court. While P.W. 13 recognized appellant nos. 1, 2, 4 and 5 in court. So case can be made out against these persons. Counsel has further argued that the mob was threatening the village persons to be with them to join M.C.C. and this has come from the evidence of P.W. 2 and P.W. 9. Further, he has also stated that as per the doctors report one Thakuri Yadav was injured so all Sections alleged including section 323 IPC is made out. FINDINGS 15. Further, he has also stated that as per the doctors report one Thakuri Yadav was injured so all Sections alleged including section 323 IPC is made out. FINDINGS 15. After going through the arguments, evidences and records and in the facts and circumstances of the case, it is seen that out of the witnesses, five have been declared hostile and then the six eye witnesses are not very categorical in their accusation and also as per the injury report of the doctor it seems Thakuri Yadav was not injured and Thakuri Yadav himself has not recognized anyone. So, if he has not recognized anyone and he happens to be the sole person who has a doctor's report against him, then the allegations under section 323 of the Indian Penal Code, can not be made out. From the evidence of P.W. 9 and P.W. 11 also it has come that appellant did not hit or assault anyone. So, if the appellants did not hit or assault anyone, so there is possibility that there was no actual hurt to the bodies of persons but only the fear of the mob may have been there but that too when the actual naming of the persons has been done not more than may be 10 to 12 persons have been named specifically. Further, it has also come from the evidence of P.W. 11 that some of them were also relatives, so if they were relatives then they would not really be intending much harm and hence they were not assaulted. Moreover, the persons are from the village of appellants from the village Paharpur, Salaiya, and Postiya which are all nearby villages, so it seems unlikely that those persons would really intend to commit injury to known persons. Except P.W. 2., no other eye witness has mentioned the carrying arms like gun and he too has said that he did not recognize anyone which would mean, he did not recognize any of the appellants also, so in that case who was carrying the gun is not made out. It was also never seized or produced in court. 16. Except P.W. 2., no other eye witness has mentioned the carrying arms like gun and he too has said that he did not recognize anyone which would mean, he did not recognize any of the appellants also, so in that case who was carrying the gun is not made out. It was also never seized or produced in court. 16. Coming to the relevant section, Section 147 IPC deals with “punishment for rioting”, which reads as under:- “147 Punishment for rioting.- Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” To understand section 147 of the IPC, one need to understand section 146 IPC, which deals with rioting, which reads as under:- “146 Rioting.- Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.” It is seen that the major element of rioting is the use of force or violence by unlawful assembly or a person of that unlawful assembly in prosecution of common object. It is not clear, how much force or violence was used by the entire mob of 200-250 persons, if it was done so, then none of the victims would survive or would at least have been grievously injured. It is also not known who among those 200-250 persons applied any force or violence and on whom they applied such force or violence, so it will be difficult to make out a good case for section 147 of the IPC. 17. Similarly section 148 IPC deals with “rioting armed with deadly weapon”, which reads as under:- “148. Rioting, armed with deadly weapon.- Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” This section could be said to be corollary of the earlier section of 146 and 147 of the Indian Penal Code with exception that the deadly weapon is used as a weapon of offence and which is likely to cause death. 18. 18. It is apparent that the mob itself was not fully or heavily armed with such deadly weapons and neither they used them as a weapon of offence as would have caused death. There is reference to one gun and that too it has not been used. Someone was carrying it and that also P.W. 2 has not recognized anyone. So it seems section 148 of the IPC may also not be applicable. So far section 323 of the IPC is concerned it is “punishment for voluntarily causing hurt”, which reads as under:- “323. Punishment for voluntarily causing hurt.- Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.” Section 319 of the IPC defines hurt as bodily pain, disease or infirmity. The doctor's report in this context of such a large mob of 200-250 persons can be related to in the context of section 323 of the IPC which has been alleged and the doctors report pertains to P.W. 2, who is Thakuri Yadav but it seems from the deposition of P.W. 15, who is Dr. P.K. Sinha that the injury report was under the signature of one Dr. S Ahamad, the then Medical Officer, P.W 15, doctor has said that the injury report was not prepared in his presence and the injured was not examined in his presence. 19. Further, P.W. 2 has not recognized anyone and not been able to attribute the injury to any specific person, so in absence of pin pointing anyone, it could be difficult to attribute the injury to all the appellants. Regarding section 342 of the IPC, it is punishment for wrongful confinement, which reads as under:- “342. Punishment for wrongful confinement.- Whoever wrong fully confines any person shall be punished with simple imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.” As per section 340 of the IPC, wrongful confinement is illustrated by two example, which are as follows:- (a) A causes Z to go within a walled space, and locks Z. Z is thus prevented from proceeding in any direction beyond the circumscribing line of wall. A wrongfully confines Z. (b) A places men with fire arms at the outlets of a building, and tells Z that they will fire at Z if Z attempts to leave the building. A wrongfully confines Z. 20. Having looking to the illustrations, it is seen that the informant and the others were not wrongfully confined in such a manner and in any way it has also come that among the mob, relatives were also there and further from the same village and they were taken and it has also come from the evidence of some of the witnesses that no assault was used against them. But even they were asked to consider and think over joining of MCC overnight and can talk with the decision next day. So, it may be that among the mob, there were some persons who may have been following to MCC, though as has been submitted by the counsel for the appellants, no body has been proved to be the MCC member. However, on the basis of the same that the wrongful confinement is illustrated in section 340 of the IPC, is not applicable in this case and, therefore, the appellants also not guilty of section 342 of the IPC. 21. Having gone through the arguments, records of the case and evidences and after analysis of the sections, it seems that five sections have been alleged inclusive of section 149 of the IPC, which would be for including everyone under the ambit of unlawful assembly with also common object. However, section 147, 148, 342 of the IPC are clearly not made out and regarding section 323 of the IPC it pertains to only one person and that too in the context to him having not recognized any of the appellants or any of the mob. So, taking into account the totality of the allegations, I am not inclined to convict the appellants under sections 147, 148, 149, 323 and 342 of the Indian Penal Code and therefore, they are acquitted from the charges levelled against them. Hence, the judgment of conviction and order of sentence dated 30.05.2003 passed by the learned lower court is set aside. The appellants are on bail. They are discharged from the liabilities of their bail bonds. 22. Accordingly, this appeal is allowed.