JUDGMENT : The instant Criminal Appeals have been preferred against a common judgment of conviction and order of sentence, both dated 31.01.2004, passed by learned Additional Sessions Judge, Fast Track Court No. VI, Dhanbad, in Sessions Trial No. 370/2002, whereby five appellants above named, have been convicted by the learned Trial Court for offence punishable under Sections 147, 341, 325 and 307 of the Indian Penal Code and awarded rigorous imprisonment for seven years and a fine of Rs. 1000/- under Section 307 of the Indian Penal Code and rigorous imprisonment for three years under Section 325 of the Indian Penal Code and one month simple imprisonment for the charge under Section 341 of the Indian Penal Code and six months simple imprisonment for the charge under Section 147 of the Indian Penal Code and all the sentences are directed to run concurrently. 2. Brief fact of the prosecution case is based upon fardbeyan of Sandeep Kumar Singh (P.W. 6) recorded by A.S.I., Harendra Singh of Jorapokhar Police Station, on 28.03.2001, at 11.00 pm in the night, where the informant has alleged, that after closing his shop at Digwadih at 06.15 p.m., he was going alone to his house through Digwadih New Colony and as soon as, he reached near the house of Pulin Chakraborty, 25 boys came with weapons and started assaulting the informant. The informant has further stated that, he has identified one, Pappu by saying that “Pappu I have identified you” and he asked for the reason, for committing such assault, upon which Pappu said that “he has identified me, kill him”, and thereafter all the accused persons have assaulted him due to which, he became unconscious and when he regained his consciousness, he found himself in a hospital, where his fardbeyan was recorded. Out of 25 persons, he identified Pappu Singh @ Mochi, Raju Singh @ Ranjeet Singh, Shekhar Kumar Singh, Deepak Kumar Singh (all appellants of Cr. Appeal (SJ) No. 279 of 2004) and one Belal Ahmad (appellant in Cr. Appeal (S.J.) No. 334 of 2004). 3. The informant was asked by the police officer, who has recorded the fardbeyan regarding the reason as why he has been assaulted, upon which the informant said that he has no previous enmity with the said persons. Informant has further stated that accused persons has taken one golden chain, wrist watch and Rs. Appeal (S.J.) No. 334 of 2004). 3. The informant was asked by the police officer, who has recorded the fardbeyan regarding the reason as why he has been assaulted, upon which the informant said that he has no previous enmity with the said persons. Informant has further stated that accused persons has taken one golden chain, wrist watch and Rs. 2800-2900/- cash from the informant but has not seen that, nor alleged specifically who were the accused persons who had taken away the golden chain, wrist watch and the cash money. The informant has further stated, on query made by the police officer, that who has saved him, on which the informant has said that, he has not seen any person. 4. On the fardbeyan of the informant, police has registered Jorapokhar P.S. Case No. 99 of 2001 on 28.03.2001 under Sections 147, 341, 323, 342, 307 and 379 of the Indian Penal Code against the accused persons. After investigation, the police has submitted final form vide chargesheet no. 317 of 2001 dated 25.10.2001 under Sections 147, 341, 325 and 307 of the Indian Penal Code. 5. The cognizance of the offence was taken on 03.11.2001 against all the five accused persons under Sections 147, 341, 325, 307 of the Indian Penal Code. The case was committed to the court of Sessions vide order dated 20.08.2002 and charge was framed against the accused/appellants under Sections 147, 341, 325 and 307 of the Indian Penal Code on 03.06.2003, to which the appellants have pleaded their innocence and thus, they were put under trial. 6. The prosecution has examined altogether 9 witnesses and also exhibited a number of documents, which have been marked as exhibits to prove their case. 7. Pulin Kumar Chakraborty has been examined as P.W. 1., Subhan Chatterjee has been examined as P.W. 2, Love Kumar Vishwakarma has been examined as P.W. 3, Munna Singh has been examine as P.W. 4, Bijoy Kumar Singh has been examined as P.W. 5, Sandeep Kumar Singh @ Sanjeev (informant and injured of the case) has been examined as P.W. 6, Dr. Ratna Thakur (Medical Officer) has been examined as P.W. 7, Sanjay Kumar Singh (first Investigating Officer) of the case has been examined as P.W. 8 and Usha Rani (subsequent Investigating Officer) of the case has been examined as P.W. 9. 8. Ratna Thakur (Medical Officer) has been examined as P.W. 7, Sanjay Kumar Singh (first Investigating Officer) of the case has been examined as P.W. 8 and Usha Rani (subsequent Investigating Officer) of the case has been examined as P.W. 9. 8. Signature of Sandeep Kumar Singh on the fardbeyan has been marked as Exhibit- 1, injury report of Sandeep Kumar Singh has been marked as Exhibit-2, fardbeyan of Sandeep Kumar Singh has been marked as Exhibit-3 and endorsement on the fardbeyan has been marked Exhibit 3/1. After closure of the prosecution evidence, the appellants were examined under Section 313 Cr.P.C. on 24.01.2004. 9. Defence has not examined any witness nor has exhibited any document. After hearing the parties, the learned Trial Court passed the impugned judgment, which has been assailed by the appellants. Learned counsel for the appellants, Mr. Arun Kumar assisted by Mr. Shiv Kumar (in Cr. Appeal (SJ) No. 279 of 2004) and Mr. Altaf Hussain (in Cr. Appeal (SJ) No. 334 of 2004) have submitted, that impugned judgment of conviction and order of sentence is bad in law, as no case under Section 307 of the Indian Penal Code is made out against the appellants, as per the allegation that 25 persons including these five persons (appellants) have assaulted the informant (P.W. 6), by means of lathi, rod and hockey stick and there was no intervening circumstances for the appellants, had they have intention to kill Sandeep Kumar Singh @ Sanjeev. 10. Learned counsel for the appellants has further submitted, that from perusal of the fardbeyan itself, the informant has categorically stated that who has saved him, he is not knowing the fact, meaning thereby the appellants were not having intention to kill and this is the reason the victim, Sandeep Kumar Singh has not been killed and as such, the appellants cannot be convicted under Section 307 of the Indian Penal Code. Learned counsel for the appellants has further submitted that, as per the prosecution case, 25 persons have assaulted the victim, Sandeep Kumar Singh, by means of lathi, rod and hockey stick, but as per the injury report (Exhibit-2), only two injuries were found on the body of the victim, which was not on the vital part of the body. Learned counsel for the appellants has further submitted that, as per the prosecution case, 25 persons have assaulted the victim, Sandeep Kumar Singh, by means of lathi, rod and hockey stick, but as per the injury report (Exhibit-2), only two injuries were found on the body of the victim, which was not on the vital part of the body. Out of two injuries have been caused on the person of the victim, one is the lacerated wound over vault of skull and second is lacerated wound with fracture at right tibia, though both the injuries are grievous in nature but that are not sufficient for convicting the appellants under Section 307 of the Indian Penal Code. Learned counsel for the appellant has drawn the attention of this court towards evidence of P.W. 8 (Sanjay Kumar Singh), the Investigating Officer of the case, who has deposed in paragraph 3 of his cross-examination, that in the restatement of the informant, the informant himself has doubted the presence of Belal Ahamad (co-convict, appellant of Cr. Appeal (SJ) No. 334 of 2004) and as such, the conviction of Belal Ahamad is also not sustainable in the eyes of law. 11. Learned counsels for the appellants have further submitted, that for constituting an offence under Section 147 of the Indian Penal Code particularly for unlawful assembly, Section 141 of the Indian Penal Code says :- “141. Appeal (SJ) No. 334 of 2004) and as such, the conviction of Belal Ahamad is also not sustainable in the eyes of law. 11. Learned counsels for the appellants have further submitted, that for constituting an offence under Section 147 of the Indian Penal Code particularly for unlawful assembly, Section 141 of the Indian Penal Code says :- “141. Unlawful assembly.- An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is – First.- To overawe by criminal force, or show of criminal force, [the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or Second.- To resist the execution of any law, or of any legal process; or Third.- To commit any mischief or criminal trespass, or other offence; or Fourth.- By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth.- By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation.- An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.” Learned counsel for the appellant Belal Ahmed in Cr. Appeal (SJ) No. 334 of 2004 has submitted, that since presence of Belal Ahamad is itself doubtful as per evidence adduced by Sanjay Kr. Singh (P.W.8-investigating officer) in paragraph 3 of his cross-examination, then the number of accused is reduced to four and in view of Section 141 of the Indian Penal Code, unlawful assembly is not constituted and as such, the appellants are entitled for acquittal, in absence of any specific role attributed against them, with respect to assault made upon the informant, by the accused persons. Once Section 147 of the Indian Penal Code is not made out, the prosecution has to establish its case by specifying the role of the accused. Once Section 147 of the Indian Penal Code is not made out, the prosecution has to establish its case by specifying the role of the accused. Had it been a case, where Section 147 of the Indian Penal Code had been constituted, there is no such requirement, but once Section 147 of the Indian Penal Code is not made out, it is duty of the prosecution, that specific averment has to be proved against the appellants for convicting the appellants under Section 147 of the Indian Penal Code. Learned counsel for the appellant has further submitted, that since the version of the informant is not found to be true, conviction of the appellants under Section 341 of the Indian Penal Code, is also bad in law. Learned counsel for the appellant (Belal Ahamad), Mr. Altaf Hussain, has submitted, that in a criminal case, conviction of appellant cannot be passed, on the basis of suspicion. Once the Investigating Officer has categorically stated in paragraph-3 of his cross-examination, that in the re-statement of the informant, he has doubt about the presence of Belal Ahamad and as such, Belal Ahamad is entitled for acquittal. Learned counsel has further submitted, that conviction of the appellant under the aforesaid sections is bad in law and is fit to be set aside. 12. Learned counsel for the State, Mr. Suraj Mohan, Additional Public Prosecutor has submitted, that the impugned judgment of conviction and order of sentence has been passed, on the basis of the medical report, which has been marked as Exhibit-2. Learned counsel for the State has submitted, that Doctor has found two injuries on the person of the victim, on the head and on the right leg, which are grievous in nature and as such, learned Trial Court was justified in convicting the appellants in the aforesaid sections. 13. After hearing the learned counsel for the appellants, Mr. Arun Kumar assisted by Mr. Shiv Kumar Singh [in Cr. Appeal (SJ) No. 279 of 2004] and Mr. Altaf Hussain [in Cr. Appeal (SJ) No. 334 of 2004] and Mr. Suraj Mohan, Additional Public Prosecutor appearing for the State and on perusal of the record, including the F.I.R., charge, depositions, exhibits and the impugned judgment, this court is of the opinion that Pulin Kumar Chakraborty (P.W. 1) has not adduced any evidence in support of the prosecution case. Altaf Hussain [in Cr. Appeal (SJ) No. 334 of 2004] and Mr. Suraj Mohan, Additional Public Prosecutor appearing for the State and on perusal of the record, including the F.I.R., charge, depositions, exhibits and the impugned judgment, this court is of the opinion that Pulin Kumar Chakraborty (P.W. 1) has not adduced any evidence in support of the prosecution case. Subhan Chatterjee (P.W. 2) has been declared hostile by the prosecution. Love Kumar Vishwakarma (P.W. 3), Munna Singh (P.W. 4), brother of the victim and Bijoy Kumar Singh (P.W. 5), father of the victim are only hearsay witnesses and they have stated on the basis of the disclosure made by Sandeep Kumar Singh @ Sanjeev, who is the victim and informant of the case, but from the perusal of the evidence of P.W. 6, no ‘mens rea’ has been assigned for committing such offence by the appellants rather he (informant) has categorically stated that there was no enmity with the appellants/accused persons. The informant has also said that 25 persons have assaulted him by means of hockey stick, rod and lathi and due to which he became unconscious and because of the assault, his right leg was fractured and he has sustained three-four injuries on the head. He (informant) has proved his signature on the fardbeyan as Exhibit-1 and was admitted in the hospital for 3-4 days but from perusal of the evidence of this witness. Since conviction under Section 147 of the Indian Penal Code is not sustainable in the eyes of law as the presence of Belal Ahamad, appellant in Cr. Appeal (SJ) No. 334 of 2004 is doubtful as stated by P.W. 8 (Sanjay Kr. Singh) Investigating Officer as per re-statement of informant, no specific allegation of assault was made against any of the appellants, rather it was an omnibus allegation. Further this witness (informant-P.W. 6) has never disclosed the cause for the offence. From perusal of the evidence of Dr. Ratna Thakur, who has been examined as P.W. 7, she has found two injuries on the person of the victim. Both were grievous in nature and has been caused by hard and blunt substance and the injury report of Sandeep Kumar Singh has been marked as Exhibit- 2. 14. From perusal of the evidence of Dr. Ratna Thakur, who has been examined as P.W. 7, she has found two injuries on the person of the victim. Both were grievous in nature and has been caused by hard and blunt substance and the injury report of Sandeep Kumar Singh has been marked as Exhibit- 2. 14. Sanjay Kumar Singh, (first investigating officer of the case) (P.W. 8) has categorically stated in paragraph 4 of his cross-examination that, he has only recorded the statement of seven witnesses, as per their evidence and a quarrel took place between two groups but because of darkness, none of the accused could be identified. The Investigating Officer, in paragraph 5 of his cross-examination has stated that, informant has stated before him, that informant was going along with his friend in front of house of one, Pappu Singh, where a widow lady was residing with her young daughter, Neha Kumari for meeting her, for which Pappu asked the informant not to do so. Neha Kumari and her mother has not been examined by police under Section 161 Cr.P.C. nor they were put for examination, as witnesses, on behalf of the prosecution, as such, they were not made witnesses of this case nor ‘mens rea’ for committing such offence has not been brought on record. Learned counsel for the appellant has rightly submitted, that P.W. 8, Sanjay Kumar Singh has also doubted the presence of Belal Ahamad, in paragraph 3 of his cross-examination. This witness (P.W. 8) has submitted that informant in his re-statement has said, that presence of Belal Ahamad, at the place of occurrence is doubtful, as he has not seen Belal Ahamad. 15. Usha Rani (P.W. 9), the second Investigating Officer, who has submitted charge sheet against the accused persons has submitted that on the direction of the higher officer, she has submitted the charge sheet against the five accused persons but she has not recorded the statement of any of the witnesses during investigation. 16. From discussions made above, this court is of the opinion that prosecution has suppressed the real facts. There is no eye-witness to the occurrence, although the place of occurrence, as alleged by the informant is a residential colony, the evidence of P.W. 6, Sandeep Kumar Singh @ Sanjeev is not in consonance with the evidence of other witnesses. 16. From discussions made above, this court is of the opinion that prosecution has suppressed the real facts. There is no eye-witness to the occurrence, although the place of occurrence, as alleged by the informant is a residential colony, the evidence of P.W. 6, Sandeep Kumar Singh @ Sanjeev is not in consonance with the evidence of other witnesses. Even the Investigating Officer has said that some of the witnesses have said that two groups of boys have quarreled but because of the darkness, they have not been able to identify them. If this statement of the Investigating Officer is taken to be true, then the informant’s fardbeyan is highly doubtful, as the informant has categorically stated that he was going alone after closing the shop at 6.15 p.m. and the occurrence took place at residential colony at 6.15 p.m., this court is of the opinion that prosecution has miserably failed to prove the ‘mens rea’ of this occurrence. This court finds force in the argument of the learned counsel for the appellant that no case under Section 307 of the Indian Penal Code is made out, as there was no deadly weapon used nor there was any person to save the informant, if the appellants had intention to kill the informant. The counsel for the appellant has rightly submitted that ‘mens rea’ for conviction under Section 307 of the Indian Penal Code is completely lacking. This court is of the opinion that the presence of Belal Ahamad is not proved by the prosecution beyond all reasonable doubts, after the informant’s restatement by the Investigating Officer, who has admitted in paragraph-3 of his cross-examination, that presence of Belal Ahamad is doubtful. 17. Under the aforesaid facts and circumstances, the conviction of Belal Ahamad is bad in law and Belal Ahamad is thus, hereby acquitted giving benefit of doubt from the charges and conviction. This court is also of the opinion that, if Belal Ahmad is acquitted, then no case under Section 147 of the Indian Penal Code is made out, as envisaged under Section 141 of the Indian Penal Code. Thus, the conviction of the appellants under Section 147 is also set aside. This court is also of the opinion that, if Belal Ahmad is acquitted, then no case under Section 147 of the Indian Penal Code is made out, as envisaged under Section 141 of the Indian Penal Code. Thus, the conviction of the appellants under Section 147 is also set aside. There is no specific allegation against any of the appellants for assault and merely because the informant has sustained some injuries and those were found to be grievous, the allegation of assault against the appellants is not proved, unless and until, there is specific allegation and proof regarding the assault by the appellants and thus, Section 325 of the Indian Penal Code is not proved and as such the appellants are acquitted under Sections 325 and 307 of the Indian Penal Code. 18. So far, conviction of the appellants under Section 341 of the Indian Penal Code is concerned, the defence has not argued, from the material to demolish the conviction under Section 341 of the Indian Penal Code and as such conviction under Section 341 is made out against the appellants. The appellants have already remained in custody for more than two months and under Section 341 of the Indian Penal Code, the learned Trial Court has only awarded a sentence of one month. As such, the appellants have already undergone the conviction awarded under Section 341 of the Indian Penal Code (except Belal Ahamad) is hereby sustained affirmed and upheld but as the appellants have already served out the sentence under Section 341 of the Indian Penal Code, no further order is required. 19. Thus, the impugned judgment of conviction and order of sentence, both dated 31.01.2004, passed by learned Additional Sessions Judge, Fast Track Court No. VI, Dhanbad, in Sessions Trial No. 370/2002 in connection with Jorapokhar P.S. Case No. 99 of 2001, consequent to G.R. Case No. 906 of 2001 (in Cr. Appeal (SJ) No. 279 of 2004) is partly allowed as stated above by modifying the sentence under Section 341 of the Indian Penal Code and (Cr. Appeal (SJ) No. 334 of 2004) preferred by appellant Belal Ahamad is hereby allowed by giving benefit of doubt. 20. The appellants, who are on bail, are discharged from liability of their bail bonds. 21. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.