JUDGMENT : Heard, learned counsel for the appellants, Mr. Laljee Sahay assisted by Mr. Hemant Kumar Chakraborty, Advocate and Mr. Mukesh Kumar, learned Additional Public Prosecutor, appearing for the State. 2. The instant Criminal appeal has been preferred against the judgment of conviction and order of sentence, both dated 16.07.2004, passed by learned Additional Judicial Commissioner, Fast Track Court -VIIIth, Ranchi, in Session Trial No. 563 of 1995/Trial No. 147/2003, whereby both the appellants, Indra Kumar Julka and Samir Julka have been convicted along with other co-accused namely, Raju Julka, Jatin Sahay, Ashwini Rathor, Sandeep Saha, Suprakash Dutta, Anil Jaiswal and Rajesh Khanna, for the offence punishable under sections 147,452 and 323/149 of the Indian Penal Code. Raju Julka has been separately convicted for the offence punishable under sections 452, 147 and 323 of the Indian Pendal Code and sentenced to rigorous imprisonment for 3 years under section 452 of the Indian Penal Code and to fine of Rs. 1000/-, in default of payment of fine to simple imprisonment for 3 months. He is further sentenced to undergo rigorous imprisonment for 1 year under section 147 of the Indian Penal Code and 6 months under section 323 of the Indian Penal Code. Remaining accused persons namely Indra Kumar Julka, Samir Julka, Jatin Sahay, Ashwini Rathor, Sandeep Saha, Suprakash Dutta, Anil Jaiswal and Rajesh Khanna are sentenced to undergo rigorous imprisonment for 3 years under section 452 of the Indian Penal Code and further directed to pay of fine of Rs. 1000/-and in default of payment of fine to undergo simple imprisonment for 3 months. They are further sentenced to undergo rigorous imprisonment for 1 year under section 147 of the Indian Penal Code and 6 months under sections 323/149 of the Indian Penal Code. All the sentences are directed to run concurrently. 3. Other co-accused namely Rajesh Khanna has preferred Cr. Appeal.(SJ) No.1227 of 2004, co-accused Anil Jaiswal, Suprakash Dutta, Ashwini Rathor, Sandeep Kumar Saha and Jatin Sahay have preferred Cr. Appeal (SJ) No.1233 of 2004 and co-accused Raju Julka has preferred Cr. Appeal (SJ) No.1241 of 2004, which have been disposed of by the co-ordinate Bench of this Hon'ble Court, acquitting the other co-accused persons, on the basis of compromise entered into by the parties, but since the compromise has not been entered with appellants namely Indra Kumar Julka and Samir Julka, Cr. Appeal (SJ) No.1241 of 2004, which have been disposed of by the co-ordinate Bench of this Hon'ble Court, acquitting the other co-accused persons, on the basis of compromise entered into by the parties, but since the compromise has not been entered with appellants namely Indra Kumar Julka and Samir Julka, Cr. Appeal (SJ) No. 1315 of 2004 has been segregated. 4. The prosecution case is based upon fardbeyan of Manmohan Krishan recorded by Sri. R. S. Prasad, Officer In-charge, Bariatu, Police Station, on 25.09.1994 at 21:30 hours, at the home of the informant, where the informant has alleged that around 6:00 P.M. accused Raju Julka came along with one boy and after ascertaining, that the house belongs to Yuvraj, went away. It is further alleged that at about 8.45 P.M. accused Indra Kumar Julka, Samir Julka son of Indra Kumar Julka and Raju Julka along with 5 to 6 boys came in their ambassador car bearing registration no. BHV-6469, in drunken state and they entered in his house and started searching for the informant and his Punjab wali 'Phua' and they were also uttering, that they will finish them. It is further alleged that the accused persons started assaulting the informant and accused Raju Julka, who was having a pistol in his hand, opened fire with intention to kill the informant, but the same missed. It is further alleged that, when the family members namely Sandeep Kumar (not examined), Sunil Kumar Mahendru (P.W-3) and Rakesh Kumar(P.W.-1) tried to intervene, they were also assaulted and injured by accused persons. It is also alleged, that one of the accused also made attempt to throttle the neck of informant's niece, Sushma. In the mean time, alarm was raised and local people assembled there and suspecting the accused persons to be criminal, assaulted them. The accused persons then started fleeing away, but one of them was arrested by the mob, who disclosed his name, as Jatin Sahay and also revealed the names of his accomplices, as Ashwini Rathor, Sandeep Saha, Suprakash Dutt and Anil Jaiswal. The apprehended accused, Jatin Sahay also sustained some injury and the ambassador car also got damaged. It is also alleged that accused Raju Julka had assaulted the informant with the butt of his pistol and the informant sustained injury below his left eye and in the fingers of right hand. The apprehended accused, Jatin Sahay also sustained some injury and the ambassador car also got damaged. It is also alleged that accused Raju Julka had assaulted the informant with the butt of his pistol and the informant sustained injury below his left eye and in the fingers of right hand. The cause of alleged incident, as per fardbeyan, is the dispute for sale of a house with accused Indra Kumar Julka. 5. On the basis of fardbeyan police instituted F.I.R. bearing No.117 of 1994 dated 25.09.1994 under sections 452,307/34 of the Indian Penal Code and 27 of the arms act. After investigation the police submitted charge sheet vide charge sheet no. 7 of 1995 dated 04.04.1995 against altogether 8 accused persons, under sections 147,148,149,307,452,323/34 IPC and 27 of the arms act. The cognizance of the offence has been taken vide order dated 24.04.1995 and the case has been committed to the court of sessions vide order dated 19.09.1995. The charge has been framed against the appellants on 16.06.1997, under sections 307/149, 452, 147 and 148 of the I.P.C. and Raju Julka has been separately charged under section 307 I.P.C. on 16.06.1997, on 03.12.1998 Rajesh Khanna has been charged under sections 307/149 I.P.C., to which the appellants pleaded their innocence and thus they were put under trial. 6. The prosecution has examined altogether 11 witnesses and also adduced a number of documentary evidence, which have been proved and marked up to exhibits-6 series to prove their case against the appellants. After closure of the prosecution evidence, the appellants and others co-accused have been examined under section 313 Cr. P.C., on 09.06.2003, to which, they gave their reply and examined D.W.-1 Badri Prasad. 7. Rakesh Kumar has been examined as P.W.-1, Manmohan Krishan (informant of the case) has been examined as P.W.-2, Sunil Kumar Mahendru has been examined as P.W.-3, Sanjay Kumar Dubey has been examined as P.W.-4, Sanjay Kumar Sinha, who has been declared hostile by the prosecution, has been examined as P.W.-5, Awadhesh Kumar, who has been declared hostile by the prosecution, has been examined as P.W.-6, Rajesh Kumar Mahendru has been examined as P.W.-7, Jitendra Kumar(seizure witness) has been examined as P.W.-8, Yuvraj Singh(another seizure witness) has been examined as P.W.-9, Sukhdeo Ojha (Investigating officer of the case) has been examined as P.W.-10, Dr. Shashi Shekhar, who examined the injured, has been examined as P.W.-11. 8. Shashi Shekhar, who examined the injured, has been examined as P.W.-11. 8. Signature of Manmohan Krishan on the fardbeyan has been proved and marked as exhibit -1, signature of Jitendra Kumar, on the seizure list has been proved and marked as exhibit-2, signature of Yuvraj Singh, on the seizure list has been proved and marked as exhibit-2/1, formal F.I.R. has been proved and marked as exhibit-3, fardbeyan of the informant has been proved and marked as exhibit-3/1, signature of PW.-10 Sukhdeo Ojha, on the seizure list has been proved and marked as exhibit-4, medical requisition of injured Sunil Kumar Mahendru has been proved and marked as exhibit-5, medical requisition of Manmohan Krishan has been proved and marked as exhibit-5/1, medical requisition of Rakesh Kumar Mahendru has been proved and marked as exhibit-5/2, medical requisition of Sandeep Kumar has been proved and marked as exhibit-5/3, injury report of Sandeep Kumar has been proved and marked as exhibit-6, injury report of Rakesh Kumar Mahendru has been proved and marked as exhibit-6/1, injury report of Manmohan Krishan has been proved and marked as exhibit-6/2, injury report of Sunil Kumar Mahendru has been proved and marked as exhibit-6/3. 9. The defence has also examined Badri Prasad as D.W.-1, an advocate clerk to prove the certify copy of the complaint case no. 308 of 1994 filed by Rajendra Kumar Julka (father of Raju Julka) against the informant (Manmohan Krishan) and others. 10. Learned counsel for the appellants, Mr. LalJee Sahay has submitted, that it is a peculiar case and impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellants has further submitted, that the co-accused persons namely Rajesh Khanna, appellant in Cr. Appeal(SJ) No. 1227 of 2004, Anil Jaiswal, Suprakash Dutta, Ashwini Rathor, Sandeep Kumar Saha, Jatin Sahay appellants in Cr. Appeal(SJ) No.1233 of 2004 and Raju Julka appellant in Cr. Appeal (SJ) No.1241 of 2004, against whom there was allegation of firing and assaulting by means of butt of pistol have been acquitted by this Hon'ble Court vide order dated 22.11.2013, on the basis of compromise. 11. Learned counsel for the appellants has further submitted, that part compromise, on the basis of which other co-accused persons have been acquitted, cannot be allowed, as the case is arising out of a police case, where state is a necessary party. 11. Learned counsel for the appellants has further submitted, that part compromise, on the basis of which other co-accused persons have been acquitted, cannot be allowed, as the case is arising out of a police case, where state is a necessary party. But on the basis of such part compromise other accused persons have been acquitted and since informant has refused to compromise with the appellants in present appeal, the case of the appellants is pending before the Hon'ble Court. 12. Learned Counsel for the appellants, has further submitted, that from perusal of the materials available on the record, it appears that there is no specific allegations against the appellants. At best, allegations against these appellants may be for being a member of unlawful assembly and of entering into the house of the informant and as such, the appellants may have been convicted under sections 149 and 452 of the Indian Penal Code. So far, conviction under sections 323 and 147 of the Indian Penal Code is concerned, since all other accused persons except these two appellants have been acquitted by this Hon'ble Court, they are also entitle for the benefit given to them. 13. Learned counsel for the appellants, Mr. Laljee Sahay has further submitted, that the learned trial court without scrutinizing the evidence and drawing its attention towards contradictions of the witnesses, passed the impugned judgment of conviction and order of sentence. 14. Learned counsel for the appellants has further submitted, that Jatin Sahay, appellant in Cr. Appeal (SJ) No. 1233 and 2004, who had been caught on the spot, has been acquitted by the Hon'ble Court, on the basis of compromise. Learned Counsel for the appellants has drawn the attention of this court towards Para-5 of cross-examination of PW-10, Sukhdeo Ojha, who had investigated this case. This witness has categorically stated, that Yuvraj Singh has never stated before him, that accused persons came to their house in search of Manmohan Krishan and Punjab Wali Phua. 15. Learned Counsel for the appellants has submitted, that there is vital contradiction, and the learned trial court without appreciating the same has convicted the appellants along with other accused persons, who have already been acquitted, on the basis of compromise. Learned counsel for the appellants has further submitted, that Dr. 15. Learned Counsel for the appellants has submitted, that there is vital contradiction, and the learned trial court without appreciating the same has convicted the appellants along with other accused persons, who have already been acquitted, on the basis of compromise. Learned counsel for the appellants has further submitted, that Dr. Shashi Shekhar, who has been examined as P.W.-11, issued the injury report of Sandeep Kumar, which has been proved and marked as exhibit-6 has found one abrasion ¼” x ¼” with oozing over dorsal aspect of right hand, fourth finger. He has also examined the Rakesh Kumar Mahendru and found one abrasion ¼” x ¼” over the dorsal aspect of the right hand's, little finger, first inter phalangeal joint area, which is simple in nature, which has been proved and marked as exhibit-6/1. This witness has also examined Manmohan Krishan and found two injuries (a) Swelling and sub cutaneous haematoma, 2”x 1½” below left lower lip (b) laceration 1/2”x1/2”x1/4” over dorsal aspect of right second finger in the terminal phalanx. Both injuries are simple in nature and the injury report of Manmohan Krishan has been proved and marked as exhibit-6/2. This witness has also examined Sunil Kumar Mahendru, and stated, that patient was complaining swelling and tenderness at wrist and palm. The doctor has categorically stated, that there was no apparent injury and the injury report has been proved and marked as exhibit-6/3. The doctor has categorically stated, that all the patients were brought by S.D. Ojha, A.S.I. of Bariatu Police station. On this basis, learned counsel for the appellants has submitted, that none of the injury can be attributed to these appellants. So far, section 149 I.P.C. is concerned, no case is made out under this section, as other accused persons have been acquitted by this Hon'ble Court and the basic requirement for constituting offence under section 149 I.P.C. is that the same must comply the provisions under section 141 I.P.C., which define unlawful assembly. 16. Learned counsel for the appellants, Mr. Laljee Sahay has brought attention of this court towards section 141 of the Indian Penal Code, which define unlawful assembly, which when comprises of five or more persons, then only unlawful assembly is constituted. 16. Learned counsel for the appellants, Mr. Laljee Sahay has brought attention of this court towards section 141 of the Indian Penal Code, which define unlawful assembly, which when comprises of five or more persons, then only unlawful assembly is constituted. Learned counsel for the appellants has further submitted that, since other accused persons have been acquitted, whatsoever reason may be, only two persons cannot be convicted under section 149 of the Indian Penal Code. 17. Learned counsel for the appellants has further submitted, that offence under section 147 of the Indian Penal Code cannot be attributed against these two appellants. If this court has given benefit to other accused persons, the law cannot give choice to the informant to pursue the case against part of the accused persons leaving rest of the accused persons. The law has to be consistent, so far, the accused persons are concerned, who have taken law in their hands. Present case is arising out of police case, where the state is a necessary party. State cannot take two views with respect to the accused persons and thus if, the other accused persons have been acquitted, on the basis of the compromise, appellants of this case are also entitled to take benefit of the same and be acquitted from conviction under sections 147, 323/149 and 452 of the Indian Penal Code. 18. Learned counsel for the state Mr. Mukesh Kumar, Additional Public Prosecutor has submitted, that it is true, that other co-convicts having specific allegations namely Raju Julka, and others, have been acquitted by this court on the basis of the compromise with the informant and the injured, but since the informant and the injured have not compromised with these two appellants, their case was segregated, which is based on the material available on the record. Learned counsel for the state, Mr. Mukesh Kumar, has submitted, that impugned judgment of conviction of the appellants along with other accused persons, have been rightly passed by learned trial court, though some of the accused persons, having graver charge has been acquitted by this court, in Criminal Appeal nos. 1227 of 2004, 1233 of 2004 and 1241 of 2004, on the basis of compromise. 19. Heard, learned counsel for the appellants, Mr. Laljee Sahay, learned counsel for the state Mr. 1227 of 2004, 1233 of 2004 and 1241 of 2004, on the basis of compromise. 19. Heard, learned counsel for the appellants, Mr. Laljee Sahay, learned counsel for the state Mr. Mukesh Kumar, Additional Public Prosecutor, and from perusal of the material available on the record i.e. F.I.R. the evidence of witnesses, exhibits, this court is of the opinion, that law must be consistent with respect to all the accused persons. It is not prerogative of the informant even after conviction of the accused, that he will compromise with some of the accused persons leaving rest of the accused persons. This court has also perused the injury reports from exhibits 6 to 6/3 and found that those injuries can be caused by quarrel between the parties, as the informant has claimed, that there was animosity between the parties with respect to sale and purchase of a house, for which Rajendra Kumar Julka, father of Raju Julka has filed a complaint case, in which these two appellants are not the witnesses. Further, against Indra Kumar Julka and Samir Julka there is no specific allegations in the evidence of any of the witnesses, that these persons have committed specific offence. At best, these persons can be convicted under section 149 of the Indian Penal Code, for being a member of unlawful assembly, but it is true, that once the number of accused persons have been reduced to two by acquitting rest of the accused persons, under section 149 of the Indian Penal Code, on the basis of compromise, conviction cannot stand in view of the definition as provided under section 141 of the Indian Penal Code, where five and more persons are required. On this technicalities, conviction of the appellants under section149 IPC is hereby set aside. So far, conviction under section 147 IPC is concerned, the presence of these appellants are doubtful, as they are not the witnesses in the complaint case filed by Rajendra Julka, father of Raju Julka against Manmohan Krishan and others. Since presence of these appellants are doubtful as appearing from exhibit-A, which is a complaint case bearing no. So far, conviction under section 147 IPC is concerned, the presence of these appellants are doubtful, as they are not the witnesses in the complaint case filed by Rajendra Julka, father of Raju Julka against Manmohan Krishan and others. Since presence of these appellants are doubtful as appearing from exhibit-A, which is a complaint case bearing no. 308 of 1994, the conviction of the appellants in absence of any specific allegations under section 452 of the Indian Penal Code, is also set aside, as conviction of the other co-accused persons under the aforesaid sections have been set aside by this Hon'ble Court, on the basis of compromise. 20. From the aforesaid discussion made above, this court is of the considered view, that the impugned judgment of conviction and order of sentence both, dated 16.07.2004 passed by the learned Additional Judicial Commissioner, Fast Track Court No.-VIIIth, Ranchi in Sessions Trial No.563 of 1995/Trial No. 147/2003, is not sustainable in the eyes of law and thus, the impugned judgment of conviction and order of sentence is hereby set aside. 21. Accordingly, the instant appeal stands allowed. 22. The appellants, who are already on bail, are discharged from the liability of their bail bonds. 23. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.