JUDGMENT : 1. This criminal appeal is directed against the judgment of conviction and sentence dated 27.6.2003 passed by the learned Court of 4th Additional Sessions Judge, Hazaribagh, passed in Sessions Trial No. 336 of 1994 arising out of Barhi P.S. Case No. 184 of 1994, corresponding to G.R. Case No. 1515 of 1994, whereby and whereunder the learned court below convicted all the appellants under sections 147, 148 and 323/149 of the Indian Penal Code and sentenced them to undergo R.I. for one year under section 147, R.I. for two years under section 148 and R.I. for six months under section 323/149 of the I.P.C. All the sentences were ordered to run concurrently. 2. The case of the prosecution as alleged in written report filed by P.W. 6, Jugal Kishor S/o Late Lilchand Ram, resident of village Koriadih, P.S.-Barhi, District-Hazaribagh in brief is that on 7.8.1994 at about 7.00 a.m., morning Jugal Kishor (informant), Damodar Nath, Jageshwar Prasad, Sachidanand Prasad and Tarkeshwar Prasad were grazing their respective cattle at Nima Tanr. In the meantime all the accused persons armed with Lathi, Tangi and Bhala arrived at the alleged place of occurrence. All the accused persons were saying the informant and others to withdraw the case against them and started assaulting them. It is further alleged that one Tangi blow was given on the head of the informant and to save himself he sustained injury on his nose and blood started oozing from the said injury. Thereafter, the accused persons had also assaulted Damodar Nath, Jageshwar Prasad, Sachidanand Prasad and Tarkeshwar Prasad by Tangi and Lathi on their head as such they had sustained several injuries on their person. It is further alleged that Parmeshwar Mahto, Tiko Mahto and Narayan Mahto intervened into the matter, thereafter all the accused persons fled away. On the basis of written report a formal F.I.R. was lodged and a case was registered vide Barhi P.S. Case No. 184 of 1994 under sections 147, 148, 149, 307, 323 and 324 of I.P.C. against all the accused persons. 3. The Police after investigation submitted charge sheet under sections 147,148,149,307, 323 and 324 of the Indian Penal Code against the accused persons. The learned court after taking cognizance of this case, committed the case to the court of sessions. 4. Charges were framed against the accused persons, who denied the allegation and claimed to be tried. 3. The Police after investigation submitted charge sheet under sections 147,148,149,307, 323 and 324 of the Indian Penal Code against the accused persons. The learned court after taking cognizance of this case, committed the case to the court of sessions. 4. Charges were framed against the accused persons, who denied the allegation and claimed to be tried. Accordingly trial was held, after the conclusion of which the accused were found guilty of the offences under sections 147, 148 and 323/149 of the Indian Penal Code and sentenced to R.I. for one year under section 147 I.P.C., R.I. for 2 years under sections 148 of the I.P.C. and R.I. for 6 months under sections 323/149 of the I.P.C. All the sentences were ordered to run concurrently. Hence, this appeal. 5. In all the prosecution has examined 6 witnesses in support of its case. They are P.W. 1 Jageshwar Prasad, P.W. 2 Narayan Mahto, P.W. 3 Tiko Mahto, P.W. 4 Sachidanand Prasad, P.W. 5 Tarkeshwar Prasad and P.W. 6 Jugal Kishor (informant). 6. P.W. 1 Jageshwar Prasad deposed that accused persons and all the injured are agnates and resident of same village at same place and further deposed that Jugal Kishore (informant) is his brother. He further deposed that about 10 villagers were present at the alleged time of occurrence but he did not identify them. Again he stated that at the alleged time he was grazing cattle and his brother was also grazing cattle at a distance of one field from him. He further stated that at the alleged time he was standing facing towards north and at first accused Tapeshwar came there and assaulted him by lathi as such he became unconscious and after 20 minutes he regained sense at the alleged place of occurrence and saw that at the alleged place of occurrence villagers and his brother were present and except them none was there. 7. P.W. 2 Narayan Mahto deposed that Jugal Kishore, the informant had filed a case of setting fire against accused persons but he had not deposed in the said case. He further deposed that he cannot remember the day and date of occurrence, and he further stated that police had interrogated him and he had stated before police that Hemal Mahto told him that the agnate of Jugal Kishore ( informant) armed with lathi, danda had gone to quarrel with him. He further deposed that he cannot remember the day and date of occurrence, and he further stated that police had interrogated him and he had stated before police that Hemal Mahto told him that the agnate of Jugal Kishore ( informant) armed with lathi, danda had gone to quarrel with him. He further stated that he had no knowledge that there is land dispute in between informant and accused persons. 8. P.W. 3 Tiko Mahto had not supported the case of prosecution as such, he was declared hostile. 9. P.W. 4 Sachidanand Prasad deposed that he cannot say the day of the alleged occurrence. He further deposed that the saying of informant is wrong that accused persons had also caused injury to him. He further stated that after occurrence he had gone to police station but had not gone to hospital and he was sitting just adjacent to the informant while he was stating about the alleged occurrence in the police station and he further stated that police had not arrived at the place of occurrence in his presence. 10. P.W. 5 Tarkeshwar Prasad deposed that he had not stated before police that how many persons were armed with tangi in their hands, but again he stated that two persons were armed with tangi and also stated that they were not armed with bhala, farsa and talbar in their hands. He further deposed that he had sustained cut injury in the right side of the head as such he was unconscious for about 10 minutes and in such condition he had not seen anything and after occurrence he had talked with his brother and mother about the alleged occurrence. 11. P.W. 6 Jugal Kishore is the informant. He deposed that he had filed a case for setting fire against some accused persons which is pending in the court prior to six months of this case. He further stated that he had no knowledge whether accused persons were acquitted in the said case or not. He further said that both parties are of the same caste and agnate and there is land dispute between both the parties. He said that all his brothers were not injured and voluntarily stated that Sachidanand was injured. He further deposed that he had not stated in his written report that Sachidanand also sustained injury. He further said that both parties are of the same caste and agnate and there is land dispute between both the parties. He said that all his brothers were not injured and voluntarily stated that Sachidanand was injured. He further deposed that he had not stated in his written report that Sachidanand also sustained injury. He further said that Sahdeo Mahto was armed with Bhala and others were not armed with Bhala. He further deposed that he had stated before police that when he became unconscious he had not seen the accused persons assaulting others. He further stated that Raghunath Ram is his own brother and all accused persons had assaulted him. 12. The counsel for the appellant Mr. Kaushik Sarkhel has submitted that the gist of the case is that there was apparently some enmity or differences prior to this case and the parties also happened to be agnates. This enmity is alleged to be in the form of burning incident to some property prior to this case but no documents or evidences to the effect regarding this burning incident or case has been exhibited. However, the allegations made by the informant is that the appellants were seeking their withdrawal of the prior case against them, which as per the appellant is a concoction and even if it were to be true, there is no document or evidence regarding the case, so in the absence of document or evidence regarding the same it will not be prudent to believe in such allegations. Counsel has said that this is the background in which the allegations under the offences of sections 323, 147, 148 and 149 of the Indian Penal Code have to be looked into. 13. Mr. Kaushik Sarkhel, learned Learned counsel for the appellants further submitted that the major offences alleged and for which the conviction has taken place is sections 323 of the Indian Penal Code along with sections 147, 148, 149 of the I.P.C.. 13. Mr. Kaushik Sarkhel, learned Learned counsel for the appellants further submitted that the major offences alleged and for which the conviction has taken place is sections 323 of the Indian Penal Code along with sections 147, 148, 149 of the I.P.C.. He further submitted that in absence of the examination of the I.O. as well as the doctor, it is doubtful that the convictions or the sentences can be sustained because apart from what the law is as defined or set out in these particular sections of the IPC, it is also to be seen whether the facts really indicate to the commission of the crime and this has to be borne out by the evidences available. He has pointed out that hurt in sections 319 of the IPC is as follows:- 319. Hurt-Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt. 14. Learned counsel for the appellants then also read out sections 323 of the IPC and submitted that if one looks at both the sections it is important that an expert must come to a conclusion about the same and no doctor was examined to come to such conclusions. Moreover, there is a total absence of injury report which could prove the injuries which were alleged to have been inflicted on the informant P.W. 6 and other persons. He has then read out section 45 of the Indian Evidence Act which reads as follows:- 45. Opinions of experts.-When the Court has to form an opinion upon a of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such persons are called experts. 15. Learned counsel for the appellant then submitted that there is no opinion of the doctor that has been brought on record and there is even no exhibition of the injury report so in the absence of these two, it will not be possible to sustain the allegations pertaining to section 323 of the Indian Penal Code and hence, benefit of doubt should be given to the appellants. He has then also argued that the I.O. of the case was not examined, so in the absence of the examination of the I.O., the place of occurrence, the weapon used and even any contradictions that could be elicited regarding the depositions of the various witnesses, could not be made, and hence, the conviction for offence under section 323 of the I.P.C., the appellants would be gravely prejudiced, given also the fact that the doctor has also not been examined. He has then referred to section 145 of the Indian Penal Code, which reads as follows:- 145. Joining or continuing in unlawful assembly, knowing it has been commanded to disperse-Whoever joins or continues in an unlawful assembly, knowing that such unlawful assembly has been commanded in the manner prescribed by law to disperse, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 16. Learned counsel for the appellant has also referred section 147, 148 and 149 of the Indian Penal Code which read as follows:- 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. 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. 149. Every member of unlawful assembly guilty of offence committed in prosecution of common object- If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. 17. Learned counsel for the appellant has then said that in the absence of the I.O., appellants could not then in the light of the aforesaid sections make necessary cross examination to demolish the allegations made against them. 17. Learned counsel for the appellant has then said that in the absence of the I.O., appellants could not then in the light of the aforesaid sections make necessary cross examination to demolish the allegations made against them. He has thus further submitted that on this basis itself, the charges under sections 324 of the IPC and section 307 of the IPC were not upheld and there is no reason why the allegation under the lessor offences under sections 323 of the IPC should also be upheld because if the most serious offences collapse then logically even the minor offences do not remain. 18. Counsel for the appellants then pointed out that P.W. 1 Jageshwar Prasad, in para 6 of his cross examination deposed that he does not have knowledge of the earlier case, which would be the case of burning of property, so if P.W. 1 deposed that he does not have the knowledge of the prior case, the allegation is a concoction. It has come in para 8 of the deposition that 10 villagers were present at that time but none of them have been examined. P.W. 1 said that after being assaulted, he became unconscious, so counsel submitted that in that case it was not possible for him to see the assailants who assaulted the other persons or other injured persons. Learned counsel for the appellants submitted, P.W. 2, who is Narayan Mahto, is a hearsay witness. He said that he had come to know about the incident from one Hemlal Mahto but this Hemlal Mahto has not been examined, but, in any way he is still a hearsay witness. P.W. 3, who is Teko Mahto, is a hostile witness. P.W.4 is Sachidanand Prasad. He deposed in paragraph no. 6 that he was not assaulted. P.W. 5 is Tarkeshwar Prasad. Learned counsel for the appellants submitted that the moment he was assaulted, he become senseless. Counsel has then said that if this is the case then he would not be seeing the rest of the occurrence. In para 19 of his deposition, it has come, after regaining his sense then his brother told him about what has happened. P.W. 6 is Jugal Kishore or the informant. Counsel has then said that if this is the case then he would not be seeing the rest of the occurrence. In para 19 of his deposition, it has come, after regaining his sense then his brother told him about what has happened. P.W. 6 is Jugal Kishore or the informant. Learned counsel for the appellant said that he has in para 1 of his deposition admitted that he had become unconscious, so he can not have seen the assault made on the others. However, P.W. 6 has in his written report as well as in his deposition referred to the assault being made by the appellants on the other persons who were present with him on the spot. Learned counsel for the appellant said that this is the contradiction that makes apparent concocted nature of the allegations. 19. Learned counsel for the appellant has said that the allegation of there being an unlawful assembly has to be seen in the light of the allegation made that because of a prior dispute they had come in an unlawful assembly and assaulted with Lathi and Tangi. Learned counsel for the appellant has said that the prior dispute remains an allegation because there is no record about it whatsoever and there is no documentary evidence exhibited regarding this prior dispute for which an unlawful assembly was assembled. He has also pointed out that no weapons of assault, namely, lathi and tangi or sticks have been exhibited or any blood stained soil which would have resulted due to the assault by tangi or axe and therefore the offences under section 148 of the IPC is not made out. Regarding section 147 of the Indian Penal Code of rioting, counsel for the appellant said that this also pertains to offence being done by an unlawful assembly, but this again has to be read with the allegation that such rioting was done because of the prior dispute which is not proved by evidence. In conclusion, learned counsel for the appellant has said that the initial motive has not been proved or established by evidence. The place of occurrence was also not established by the I.O.. In conclusion, learned counsel for the appellant has said that the initial motive has not been proved or established by evidence. The place of occurrence was also not established by the I.O.. The weapon used also was not exhibited and no injury report was exhibited, even the doctor was not examined and even the I.O. was not examined to further throw light on these aspects and therefore, for these aforesaid reasons, the allegations against the appellants are not proved or at least some benefit of doubt should be allowed to them and the conviction be set aside along with sentences. It has also come from the depositions that at least three of the persons seem to have fallen unconscious, so if these three had fallen unconscious then at least as far as the subsequent assaults are concerned, they would not have able to see the same, hence, there is much element of hearsay also involved. 20. Learned counsel for the State, learned APP has argued that no doubt the conviction for the offences under sections 324 and 307 of the IPC were not sustained, however, the conviction for section 323 has been rightly sustained and he has argued that the informant P.W. 6 has alleged regarding the assailants in his written report and also supported the same in the deposition. Learned APP has also said that these allegations have also been supported by P.W. 4 and P.W. 1. He has also said that there was a prior dispute so there was motive for the appellant to assault the injured persons and the informant. He has further said that the offences under sections 147 and 149 of the IPC are surely made out because the appellants have come together armed which indicates that they had already arrived at a common purpose and hence, assembled as an unlawful assembly and committed the assault together as an unlawful assembly. F I N D I N G S 21. After hearing both counsels, going through the record of the case, the evidences and in the facts and circumstances, the following conclusion emerge:- i. From the evidence of P.W. 1, P.W. 2, P.W. 4 and P.W. 6, it is clear that both parties are agnates and it seems there was some prior dispute between the parties. No record of these disputes were brought on record. No record of these disputes were brought on record. If there was a dispute, then it cuts both ways, but being agnates apparently, with differences. There seems to be sufficient differences for dispute to take place between both the parties, at the instances of either side. ii. The allegation in the written report pertains to assault by lathi, and tangi on the head and a different injury on the nose of the informant and that blood was also oozing and that other persons had also been assaulted and injured. It will be expected that at least some grievous injuries should be there but because no injury report was there and no doctor examined, so it is not possible to sustain the allegation. In fact no such assault was made and that is why the charge under sections 324 and 307 of the IPC did not result in conviction and counsel for the appellants says that section 323 IPC was used merely for giving a conviction. In the totality of the facts and circumstances of the case the I.O. should have been examined, but he has not been examined. So when assault was caused by lathi and tangi and allegedly blood had flown then the I.O. examination on matters such as recovery and production of weapons used, and blood sample to prove the place of occurrence and assault becomes vital. More so when the doctor was not examined, apart from the above as per the deposition of P.W. 1 in paragraph 8, it is said that ten other villagers were present but they have not been examined. At least one or two of these could have been examined. Counsel for the appellant has also pointed out the inconsistencies or contradiction in the evidences of the witnesses as to who was injured or assaulted and who was not. Moreover, the evidence of the informant himself, in his written report, and in his deposition, he has referred to the assault on himself and others. However, he also deposed that on being assaulted, he had become unconscious so how could he certainly say whether they were assaulted or not, particularly in the absence of injury report. 22. Moreover, the evidence of the informant himself, in his written report, and in his deposition, he has referred to the assault on himself and others. However, he also deposed that on being assaulted, he had become unconscious so how could he certainly say whether they were assaulted or not, particularly in the absence of injury report. 22. Therefore, for the aforesaid facts and reasons, and in the absence of injury reports or the examination of the doctor or the I.O., benefit of doubt is extended to the appellants and the appellants are acquitted of the convictions under sections 147, 148 and 323/149 of the Indian Penal Code. Accordingly the judgment of conviction and order of sentence dated 27.06.2003 passed by the learned 4th Additional Sessions Judge, Hazaribagh in Sessions Trial No. 336 of 1994 is set aside. Appellants are discharged from their liabilities of bail bonds. 23. Accordingly, this appeal is allowed. Appeal allowed.