JUDGMENT : Heard learned Senior Counsel for the appellants and learned Addl. P.P. for the State. 2. The appellants have preferred this appeal being aggrieved by the Judgment of conviction and Order of sentence dated 17.01.2006 passed by the learned Additional Sessions Judge-I, Chatra passed in Session Trial No.69 of 2000 by which the appellant nos.1 and 2 have been held guilty for the offence punishable under Sections 307/148/324 of the Indian Penal Code and the appellant no.4 has been held guilty for the offence punishable under Sections 148 and 324 of the Indian Penal Code and the rest of the appellants have been held guilty and convicted for the offence punishable under Sections 147 and 323of the Indian Penal Code. The appellant nos.1 and 2 have been sentenced to undergo R.I. for seven years for the offence punishable under Section 307 of the Indian Penal Code, R.I. for three years for the offence punishable under Section 148 of the Indian Penal Code and no separate sentence has been passed against them for the offence punishable under Section 324 of the Indian Penal Code. Appellant no.4 has been sentenced to undergo R.I. for three years each for the offence punishable under Sections148 and 324 of the Indian Penal Code and the rest of the appellants have been sentenced to undergo R.I. for two years each for the offence punishable under Sections 147 and 323 of the Indian Penal Code. 3. The case of the prosecution as unfolded in the written report of the informant is that on 02.11.1997 at about 3:00 p.m., when the informant was returning from his paddy field, the appellant-accused persons and others variously armed came near the informant and Paras Singh who died during the pendency of the appeal asked the informant as to why he is not withdrawing the dacoity case instituted by him against Vikash Singh and Brahmdeo Singh for the occurrence in the night of 16.04.1994 and abused the informant. At this the appellant no.1 with an intention to murder the informant assaulted the informant on his head with a sword by which the informant became injured and fell down and started screaming. The appellant no.10-Dharmendra Singh exhorted others to kill the informant at which Brahmdeo Singh with an iron rod assaulted the informant on the finger of his left hand causing injury in the finger of the informant. The appellant no.10-Dharmendra Singh exhorted others to kill the informant at which Brahmdeo Singh with an iron rod assaulted the informant on the finger of his left hand causing injury in the finger of the informant. Thereafter the elder brother of the informant namely Mahesh Singh reached the place of occurrence. Komal Singh (since deceased) assaulted with a sword on the head of Mahesh Singh by which Mahesh Singh also fell down. Thereafter appellant no.4-Dhananjay Singh assaulted Mahesh Singh on his right hand by which the right hand of Mahesh Singh was injured. Bajrang Singh assaulted the nephew of the informant namely Satyendra Singh on his head with a farsa (Battle Axe) causing him injury. Paras Singh (died during the pendency of the appeal) assaulted Satyendra Singh with lathi on his waist and leg. The injured persons were taken to hospital. On the basis of the written report of the informant police registered Itkhori P.S. Case No. 106 of 1997and hence, took up investigation of the case. 4. After completion of investigation, police submitted police report against the accused- appellants. After commitment of the case to the Court of Session, charges for the offence punishable under sections147 and 323 of the Indian Penal Code were framed against Brahmdeo Singh (who died during trial) and Paras Singh (who died during the pendency of the appeal) and charges for the offence punishable under Sections 148 and 324 of the Indian Penal Code were framed against the eight accused persons namely Vikash Singh, Vinod Singh, Ram Pravesh Singh, Dhananjay Singh, Gokhul Singh, Mritunjay Singh, Bajrang Singh and Kailu Singh. Also charges for the offence punishable under Section 307 was framed against Vikas Singh, Bajrang Singh, Brahmadeo Singh and Paras Singh (died during the pendency of the appeal) and separate charges for the offence punishable under Section 148/307/109/307of the Indian Penal Code were framed against the appellant no.10-Dharmendra Singh. Upon the accused-appellants pleading not guilty to the charges, they were put to trial. In support of its case, the prosecution altogether examined 7 witnesses and in their defence, the appellant-accused persons examined three witnesses. 5. Out of the seven witnesses examined by the prosecution, P.W.6-Sudeshwar Singh is the informant of the case. He has stated that the occurrence took place on 02.11.1997 at 3:00 p.m. He was returning after looking his crops. In support of its case, the prosecution altogether examined 7 witnesses and in their defence, the appellant-accused persons examined three witnesses. 5. Out of the seven witnesses examined by the prosecution, P.W.6-Sudeshwar Singh is the informant of the case. He has stated that the occurrence took place on 02.11.1997 at 3:00 p.m. He was returning after looking his crops. On the way, when he reached near the house of Nirbhay Rana the appellant-accused persons variously armed attacked the P.W.6. The appellant no.1-Vikash Singh asked as to why the P.W.6 is not withdrawing the case instituted by the P.W.6 against his father. The P.W.6 refused to withdraw the case. Vikash Singh exhorted others to kill the P.W.6. Vikash assaulted on the head of the P.W.6 with a sword by which the P.W.6 sustained injury on the right side of his head. Bajrang Singh assaulted the nephew of the P.W.6 with farsa. When the brother of the P.W.6 came, Komal Singh (since deceased) assaulted him with a sword on the right side of his head. The appellant no.6-Kailu Singh assaulted Mahesh Singh on his head. Appellant no.4-Dhananjay Singh assaulted on the right hand of P.W.6. P.W.6 had instituted a case of theft against the appellant no.1-Vikash Singh vide Itkhori P.S. Case No. 32 of 1994 in which the appellant-accused persons have been convicted after the alleged occurrence. P.W.6 went to the police station and submitted a report. On being proved by him, the written report has been marked Ext.4. From the police station they proceeded to the hospital and the three were treated in the hospital. He identified the appellant-accused persons in court. In his cross-examination, P.W.6 has stated in paragraph no.1 that the appellant-accused persons are the witnesses in a case instituted by the P.W.6 against Sushil Singh and they have deposed against the P.W.6. He denied the suggestion that he is not an accused in the murder case of Paras Singh and Padarath Singh but he stated that Paras Singh and Padarath Singh were murdered. Nirbhay Rana was present at the time of deposing of the P.W.6 in court. Police did not seize any weapon. 6. P.W.2-Satyendra Singh is one of the injured witnesses of the case. He has stated that the occurrence took place on 02.11.1997 at 03:00 p.m. He was returning along with P.W.6 after looking the crop in the field. P.W.6 was going ahead of him. Police did not seize any weapon. 6. P.W.2-Satyendra Singh is one of the injured witnesses of the case. He has stated that the occurrence took place on 02.11.1997 at 03:00 p.m. He was returning along with P.W.6 after looking the crop in the field. P.W.6 was going ahead of him. P.W.2 saw that when the P.W.6 reached near the house of Nirbhay Rana, the appellant-accused persons asked the P.W.6 as to why he is not withdrawing the case of 16.04.1994. P.W.6 refused to withdraw the case. Paras Singh (died during the pendency of the appeal) exhorted others to assault. Vikash Singh assaulted on the head of the P.W.6 with a sword causing bleeding injury on the head of the P.W.6. Brahmdeo Singh (since deceased) assaulted on the left hand of the P.W.6 with an iron rod causing injury. Bajrang Singh assaulted P.W.2 with a farsa on his head and Komal Singh (since deceased) assaulted on the head of Mahesh Singh (P.W.5) with a sword causing injury on the head of the P.W.5. After that the P.W.5 fell down. Kailu Singh assaulted the P.W.5 with a farsa on his hand and the appellant no.4-Dhananjay Singh assaulted the P.W.2 with a lathi. He has further stated that after being assaulted by Bajrang Singh, he fell down. Appellant No.6-Kailu Singh, appellant no.3-Gokhul Singh and appellant no.7-Ram Pravesh Singh assaulted him. He sustained injury below his knee and on his back. He was treated in the Government Hospital of Itkhori. He identified the accused-Vikash Singh who was present in court and claimed to identify other accused persons who were represented. In his cross-examination, he has stated that for the occurrence of the same day, a case has been instituted by Sushil Singh against them which is pending. The assault continued for five to ten minutes. He sustained injury on four places of his body. His uncle, the P.W.6, sustained injury at 3-4 places on his body. P.W.5 sustained injury at 4-5 places on his body. 7. P.W.5 –Mahesh Singh is the third injured person of the case. He has stated that the occurrence took place on 02.11.1997 at 03:00 p.m. On hearing noise, he reached in front of the house of Nirbhay Rana. He saw the appellant-accused persons assaulting P.W.6 and P.W.2. Vikash Singh assaulted P.W.6 on his head and back causing bleeding injuries to P.W.6. P.W.2 was assaulted by Bajrang Singh with farsa. He has stated that the occurrence took place on 02.11.1997 at 03:00 p.m. On hearing noise, he reached in front of the house of Nirbhay Rana. He saw the appellant-accused persons assaulting P.W.6 and P.W.2. Vikash Singh assaulted P.W.6 on his head and back causing bleeding injuries to P.W.6. P.W.2 was assaulted by Bajrang Singh with farsa. Appellant no.5-Mritunjay Singh and appellant no.3-Gokhul Singh also assaulted with farsa. P.W.2-Satyendra Singh sustained injury on his head. P.W.5 went to separate the quarrel. Komal Singh (since deceased) assaulted the P.W.5 on his head with sword causing injury on his head andP.W.5 fell down. P.W.5 also sustained injury on his head. Appellant no.4-Dhananjay Singh also assaulted the P.W.5 on his head with farsa. P.W.5 and other injured persons went to police station and from there to the hospital. In his cross-examination, he has stated that Nirbhay Rana was alive and was residing in the same house along with his family members. Police did not seize any weapon in the case. In paragraph no.16 he admitted that he is having land dispute with Tuntun Devi and the son of the Tuntun Devi namely Sushil Singh has also instituted a case against the brother of the P.W.5 in which appellant-accused persons are the witnesses. He cannot say whether the P.W.6 has murdered Padarath Singh or not. Padarath Singh is the cousin of the appellant no.1-Vikash Singh. He admitted that the case of murder was going on against his brother and him. 8. P.W.3 –Kailu Singh has stated that the occurrence took place on 02.11.1997 at 03:00 p.m. On hearing noise, he reached the house of Birju Rana. He saw that the appellant-accused persons variously armed were assaulting P.Ws.2, 5 and 6. P.Ws.2, 5 and 6 were injured. In his cross-examination, he has stated that his father was the accused in the murder case of Padarath Singh. In paragraph no.10 of his cross-examination, he has admitted that the case is going on between Saligram Singh and P.W.6 regarding land dispute. In paragraph no.19 he has stated that he also separated the quarrel but he did not sustain injury. The occurrence took place on a public road by the side of the house of Birju Rana. He has also stated that Nirbhay Rana is the son of Birju Rana. 9. In paragraph no.19 he has stated that he also separated the quarrel but he did not sustain injury. The occurrence took place on a public road by the side of the house of Birju Rana. He has also stated that Nirbhay Rana is the son of Birju Rana. 9. P.W.1- Pankesh Kumar Singh has stated that the occurrence took place on 02.11.1997 at about 03:00 p.m. On hearing the noise he reached the place of occurrence which is in front of the house of Nirbhay Rana. He saw P.Ws.6, 5 and 2 were injured but he has not seen the occurrence of assault. He has seen the appellant-accused persons fleeing away. He took the injured persons to the police station. In his cross-examination, he has stated that after the murder of Padarath Singh, his villagers were divided into two groups. Sushil Singh has instituted the case against P.W.6 and others. Saligram Singh is the father of Sushil. P.W.1 was aware about the land dispute between Saligram and P.W.6. Brahmdeo Singh is an old person and is not able to walk. 10. P.W.4–Dr. Chandra Shekhar Agarwal is the doctor who examined the three injured persons and found the following injuries :- Victim-Mahesh Singh Incised wound with cutting of scalp (skull vault) 3”in length on right temporal region, grievous in nature caused by sharp cutting weapon. Incised wound 1” x whole layer of scalp, on middle of the scalp, simple in nature caused by sharp cutting weapon. Incised wound 1/4" on dorsum of right hand, simple in nature caused by sharp cutting weapon. Lacerated wound 1” at the base of middle and ring finger of right hand, simple in nature caused by hard blunt substance. Fracture of fifth metacarpal bone of right hand grievous in nature caused by hard blunt substance. Swelling of upper part of left forearm, simple in nature caused by hard blunt substance. Victim-Satyendra Singh Incised wound 1.5” x whole layer of scalp on right temporal region, simple in nature caused by sharp cutting weapon. Scratch minute incised on medial surface of left knee, simple in nature caused by hard blunt substance. Scratch 1/2” x 1/2" on medial surface of left thigh, simple in nature caused by hard blunt substance. Victim-Sudeshwar Singh Incised wound 3” x whole layer of scalp on right side of scalp, simple in nature caused by sharp cutting weapon. Scratch minute incised on medial surface of left knee, simple in nature caused by hard blunt substance. Scratch 1/2” x 1/2" on medial surface of left thigh, simple in nature caused by hard blunt substance. Victim-Sudeshwar Singh Incised wound 3” x whole layer of scalp on right side of scalp, simple in nature caused by sharp cutting weapon. Swelling 2” X 1” on medial part of dorsum of left hand, simple in nature caused by hard blunt substance. The X-ray was advised. Scratch 1” x Superficial above right great toe, simple in nature caused by hard blunt substance. 11. P.W.7 –Bindeshwari Prasad Mishra is the part Investigating Officer of the case. He has inter-alia stated that he was entrusted with the investigation of the case on 04.06.1999. He recorded the statement of witnesses and after completion of investigation, he submitted charge-sheet. On being proved by him, the formal F.I.R. was marked as Ext.5. The endorsement on the F.I.R. was marked as Ext.4/1. In his cross-examination, he has stated that he himself has not inspected the place of occurrence. He has not seen any document relating to Itkhori P.S. Case No.32 of 1994. 12. After closure of the evidence of the prosecution the statement under section 313 Cr.P.C. of the accused-appellants were recorded by the learned court below by putting the questions to all the appellants asking them that the allegation against them is that on 02.11.1997 being the member of the unlawful assembly and armed with deadly weapons they attacked P.Ws.2, 5 and 6 and injured them to which the appellant-accused persons responded by saying that the same are false and they are innocent. In their defence, the appellant-accused persons altogether examined three witnesses. 13. D.W.1-Sushil Kumar Singh has stated that the occurrence took place on 02.11.1997. D.W.1 and his brother was cutting paddy in their field. At about 04:00 p.m., the P.Ws.6, 5 and 2 along with others armed with lathi and farsa came to the field of the D.W.1. D.W.1 forbade them. At which they assaulted D.W.1 with lathi, farsa and fist blows by which D.W.1 and his brother were injured. When they screamed the appellant-accused persons came to their rescue and in the process, the P.W.6 assaulted the appellant no.1-Vikash Singh on his head by which Vikash Singh sustained injury on his head. D.W.1 forbade them. At which they assaulted D.W.1 with lathi, farsa and fist blows by which D.W.1 and his brother were injured. When they screamed the appellant-accused persons came to their rescue and in the process, the P.W.6 assaulted the appellant no.1-Vikash Singh on his head by which Vikash Singh sustained injury on his head. P.W.5 assaulted Vikash Singh on his left thumb with lathi and P.W.2 assaulted D.W.1 with lathi on his right eye. The P.W.6 and others took away the paddy which was stacked by the D.W.1 after cutting the same. D.W.1 went to the police station but his case was not accepted by the police. Hence, he instituted a case in the court of Sri. K. Verma, Judicial Magistrate. The case is pending. D.W.1 and Vikash Singh were treated in Sadar Hospital Chatra. In his cross-examination, he has stated he instituted the case on the fifth day of the month and got himself treated in Sadar Hospital on the fifth day of the month also. 14. D.W.2-Dr. Narendra Kumar, was the Deputy Superintendent of Sadar Hospital Chatra. On 05.11.1997 he examined Vikash Singh and D.W.1 and found the following injuries:- Victim-Vikash Singh Swelling with tenderness over dorsum of left hand 10 cm x 8 cm X-ray of this injury shows fracture of 1st metacarpal bone which was caused by hard and blunt substance and grievous in nature. Bandaged wound over right side of head and on removing the bandage it was observed that one 2” long sharp margined wound stitched at three places seen. It was caused by sharp cutting weapon but simple in nature. Victim-Sushil Kumar One bandaged wound over right forearm on removing the bandage a lacerated wound 2.5” x .2” was seen. It was caused by hard and blunt substance and was simple in nature On being proved by him the injury reports of the D.W.1 and Vikash Singh were marked as Exhibits A and A/a. He further stated that he examined both the injured persons as per the order of the C.J.M, Chatra. In his cross-examination, he has stated that he examined both the injured persons after perusing the order of the C.J.M, Chatra. 15. D.W.3-Dilip Kumar Mishra is a formal witness. He is a typist in court complex. He has proved the copy of the complaint of complaint case no.237 of 1997 which was marked Exhibit-B. 16. In his cross-examination, he has stated that he examined both the injured persons after perusing the order of the C.J.M, Chatra. 15. D.W.3-Dilip Kumar Mishra is a formal witness. He is a typist in court complex. He has proved the copy of the complaint of complaint case no.237 of 1997 which was marked Exhibit-B. 16. The learned court below after taking into consideration the evidence available in the record both, oral and documentary, convicted and sentenced the appellant-accused persons as already indicated above. 17. Mr. P.P.N. Roy learned Senior Counsel appearing for the appellants submits that the learned court below failed to appreciate the evidence in its proper perspective. It is further submitted by the learned Senior Counsel that the prosecution has failed to explain the injuries sustained by the appellant Vikash Singh in the same occurrence. Hence, it is submitted that the prosecution has not disclosed the true genesis and the manner of occurrence. In support of his contention, learned Senior Counsel appearing for the appellants relied upon the judgment of Hon’ble Supreme Court of India in the case of Lakhwinder Singh & Others v State of Punjab reported in 2003 (1) Supreme 789 wherein the Hon’ble Supreme Court of India has held as under in para-35:- “35. The next question is, in a case of this nature, whether the prosecution was bound to explain the injuries appearing on the person of Paramjit Singh. In our view, having regard to the facts and circumstances of this case, it was the duty of the prosecution to explain the injuries suffered by Paramjit Singh which were 19 in number and two of them resulting in fractures. It is not as if the prosecution did not know of these injuries and that they were manufactured later to support the case of the defence. The facts disclose that even by the time the first information report was finalised and before the special report was despatched, the investigating officer had knowledge of the fact that Paramjit Singh had suffered injuries and was admitted in a hospital for treatment. The facts disclose that even by the time the first information report was finalised and before the special report was despatched, the investigating officer had knowledge of the fact that Paramjit Singh had suffered injuries and was admitted in a hospital for treatment. We, therefore, hold that the failure of the prosecution to explain the injuries on Paramjit Singh leads to the inference that the prosecution has not disclosed the true genesis and the manner of occurrence.” (Emphasis Supplied) It is further submitted by the learned Senior Counsel-that the learned court below erred in taking into consideration the circumstances appearing in evidence which were not put to the appellant-accused persons and in their statement recorded under Section 313 Cr.P.C. In support of this contention, the learned Senior Counsel-appearing for the appellants relied upon the decision of the Hon’ble Supreme Court of India in the case of Shaikh Maqsood versus State of Maharashtra reported in (2009) 6 SCC 583 wherein the Hon’ble Supreme Court of India held as under:- “15. The importance of observing faithfully and fairly the provisions of Section 313 of the Code cannot be too strongly stressed: “30. …it is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material circumstance which is intended to be used against him. … The questioning must, therefore, be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused person is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. … Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand.” In this respect, learned Senior Counsel appearing for the appellants also relied upon the judgment of Hon’ble Supreme Court of India in the case of Ajay Singh versus State of Maharashtra reported in 2007 (5) Supreme 1 wherein the Hon’ble Supreme Court of India held as under in para-12:- “12. The word ‘generally’ in sub-section (1) (b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused’s failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give.” (Emphasis Supplied) Learned Senior Counsel for the appellants next relied upon the judgment of a Division Bench of this Court in the case of Krit Sao v State of Jharkhand reported in 2015 (2) JBCJ 412 [HC] wherein the Division Bench of this Hon’ble Court held as under in para-12 and 28:- “12. We refrain ourselves from commenting on the merits of the case, so far as evidence of the eye witnesses is concerned, lest, it may be construed as an expression of opinion by the Court below, as is our considered view, the fundamental defect in examination of the accused, by itself, would be a good ground for disturbing the conviction/sentence of the accused. We may state here that the other defect, as pointed by the learned counsel for the appellant in framing the charge with regard to the date, at the most, can be said to be an irregularity, which does not cause any prejudice to the accused so as to vitiate the entire trial on the count alone. We may state here that the other defect, as pointed by the learned counsel for the appellant in framing the charge with regard to the date, at the most, can be said to be an irregularity, which does not cause any prejudice to the accused so as to vitiate the entire trial on the count alone. The prosecution, however, cannot be given any leverage so far as glaring defect crept in examination of accused is concerned. 28. In this case also, the aforesaid omission on the part of the learned Trial Court to put material evidence to the accused in the course of his examination under Section 313 Cr.P.C., undoubtedly has caused prejudice to him, but, at the same time considering the entirety of facts and circumstances of the case on hand, in our view the accused does not deserve clean acquittal on account of this defect/omission, despite the fact that he is in custody for the last about 14 years, but, certainly, the conviction and sentence, as slapped upon him vide impugned judgment deserves to be set aside for the purposes of remitting the case back to the Trial Court for proceeding with the matter afresh from the stage of his examination under Section 313 Cr.P.C.” It is further submitted by the learned Senior Counsel for the appellants that so far as the appellants other than appellant Nos.1 and 2 namely Vikash Singh and Bajrang Singh respectively are concerned, the learned court below erred by not considering the mandatory provisions of giving the benefit under Section 360 of the Code of Criminal Procedure to the appellant/accused persons. In support of this contention, learned Senior Counsel relied upon the judgment of Hon’ble Supreme Court of India in the case of Chandreshwar Sharma v State of Bihar reported in 2001 (3) Crimes 45 (SC) wherein the Hon’ble Supreme Court has held in paragraph no.3 as under:- “3. …. When the matter was listed before this Court, a limited notice was issued as to why the provisions of Section 360 of the Criminal Procedure Code should not be made applicable. Pursuance to the said notice, M. Singh, the learned standing counsel for the State of Bihar has entered appearance. …. When the matter was listed before this Court, a limited notice was issued as to why the provisions of Section 360 of the Criminal Procedure Code should not be made applicable. Pursuance to the said notice, M. Singh, the learned standing counsel for the State of Bihar has entered appearance. From the perusal of the judgment of the learned Magistrate as well as the Court of Appeal, and that of the High Court, it transpires that none of the forums below had considered the question of applicability of Section 360 of Code of Criminal Procedure. Section 361 and Section 360 of the Code on being read together would indicate that in any case where the Court could have dealt with an accused under Section 360 of the Code, and yet does not want to grant the benefit of the said provision then it shall record in its judgment the specific reasons for not having done so. This has apparently not been done, inasmuch as the Court overlooked the provisions of Section 360 and 361of the Code of Criminal Procedure. As such, the mandatory duty cast on the Magistrate has not been performed. Looking to the facts and circumstances of the present case, we see no reasons not to apply the provisions of Section 360 of the Code of Criminal Procedure. We accordingly, while maintain the conviction of the appellant, direct that he will be dealt with under Section 360 and as such, we direct that the appellant be released on probation of good conduct instead of sentencing him, and he should enter into a bond with one surety to appear and receive the sentence when called upon during the period of one year for the purpose in question. The bond for a year shall be executed before the learned Chief Judicial Magistrate, Ranchi, within 3 weeks from today. The appeal is disposed of accordingly.” It is further submitted by the learned Senior Counsel appearing for the appellants that except for the appellant-accused person-Bajrang Singh and Vikash Singh, there is no cogent evidence against rest of the appellant-accused persons of having done any specific overt act except the general and omnibus allegation. It is further submitted by the learned Senior Counsel that admittedly there is land dispute between the parties and admittedly there is a series of litigations between the parties. It is further submitted by the learned Senior Counsel that admittedly there is land dispute between the parties and admittedly there is a series of litigations between the parties. Hence, false implication of the appellant-accused persons cannot be ruled out. It is further submitted that there is no allegation of repetition blows against Bajrang Singh and Vikash Singh and considering the fact that the appellant-accused persons were so many in number in comparison to the only three victims, had the appellants been having the intention to kill them, they could well have easily done so as they were allegedly armed with deadly weapons further they could well have made repeated assaults but having not done so, certainly the evidence in the record lacks to constitute the offence punishable under Section 307 of the Indian Penal Code. Thus it is submitted that the offence punishable under Section 307 of the Indian Penal Code is not made out in the facts of the case. Hence, it is submitted that this is a fit case where the appellant-accused persons be acquitted by giving them the benefit of doubt. 18. Learned Addl. P.P. on the other hand defended the impugned judgment of conviction and order of sentence and submitted that the three injured persons had categorically stated about the assault made by each of the appellant-accused persons forming an unlawful assembly and assaulted with deadly weapons and nothing has been elicited in their cross-examination to disbelieve or discredit their testimonies and their testimonies have been corroborated by the testimony of P.W.4 who has treated them and the evidence is sufficient to establish each of the charge for which the appellant-accused persons have been convicted and the sentence is also proper in the facts of the case and the learned court below having rightly convicted the appellant-accused persons, this appeal being without any merit be dismissed. 19. So far as the contention of the appellants of non-explanation of the injuries on the person of the appellant-accused persons is concerned, it is a settled principle of that for the failure of the prosecution to explain an injury in the same occurrence sustained by the accused person, the prosecution case or for that matter the testimony of the witness concerned should not necessarily be disbelieved. Before non-explanation of the injuries on the person of the accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfied of the existence of two conditions: (i) that the injury on the person of the accused was of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non-explanation of such injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Where the evidence is clear cogent and credit worthy and where the Court can distinguish the truth from falsehood, the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimonies of the prosecution witnesses and consequently the whole of the prosecution case as has been held by the Hon’ble Supreme Court of India in the case of Thakaji Hiraji v.Thakore Kubersing Chamansing and others in Appeal (Crl.) 635 of 1992 decided on 2nd May, 2001, wherein the Hon’ble Court held as under: “The first question which arises for consideration is what is the effect of non-explanation of injuries sustained by the accused persons. In Rajendra Singh & Ors. Vs. State of Bihar, (2000) 4 SCC 298 , Ram Sunder Yadav & Ors. Vs. State of Bihar, (1998) 7 SCC 365 and Vijayee Singh & Ors. Vs. State of U.P., (1990) 3 SCC 190 , all 3-Judges Bench decisions, the view taken consistently is that it cannot be held as a matter of law or invariably a rule that whenever accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non-explanation of the injuries on the person of the accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfied of the existence of two conditions : (i) that the injury on the person of the accused was of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non-explanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Where the evidence is clear cogent and credit worthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case. The High Court was therefore not right in overthrowing the entire prosecution case for non-explanation of the injuries sustained by the accused persons. The High Court ought to have made an effort at searching out the truth on the material available on record as also to find out how much of the prosecution case was proved beyond reasonable doubt and was worthy of being accepted as truthful.”(Emphasis Supplied) 20. It is also a settled principle of law that non-explanation of simple injuries of the accused would not always be fatal. The Hon’ble Supreme Court of India in the case of Ram Pat v. State of Haryana, (2009) 7 SCC 614 , in paragraph-40 has held as under in this respect. “40.It is furthermore well settled that whereas grievous injuries suffered by the accused are required to be explained by the prosecution, simple injuries need not necessarily be. Non-explanation of simple injuries of the nature suffered by the accused would not be fatal. In Hari v. State of Maharashtra (2009) 11 SCC 96 this Court held: “30. On the other question, namely, non-explanation of injury on the accused persons, learned counsel for the appellant has cited a decision in Lakshmi Singh v. State of Bihar (1976) 4 SCC 394 . In the said case, this Court while laying down the principle that the prosecution has a duty to explain the injuries on the person of an accused held that non-explanation assumes considerable importance where the evidence consists of interested witnesses and the defence gives a version which competes in probability with that of the prosecution case. 31. But while laying down the aforesaid principle, learned Judges in para 12 held that there are cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. 31. But while laying down the aforesaid principle, learned Judges in para 12 held that there are cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This would ‘apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries’. Therefore, no general principles have been laid down that non-explanation of injury on accused person shall in all cases vitiate the prosecution case. It depends on the facts and the case in hand falls within the exception mentioned in para 12 in Lakshmi Singh.” (Emphasis Supplied) 21. This Court finds that there is specific evidence in the record regarding assault having been made by three appellant-accused persons that is Vikash Singh assaulted P.W.6 on his head by a dangerous weapon and appellant no.2-Bajrang Singh assaulted on the head of P.W.2 with farsa and there was of assault upon the P.W.5 by Komal Singh (since deceased). The testimonies of the prosecution witnesses so far as the same relates to the evidence regarding assault having been made by these three appellant-accused persons has not even been specifically challenged in their respective cross-examination and the same is corroborated by medical evidence. Only one injury of Vikash Singh that is fracture of 1st metacarpal bone which was caused by hard and blunt substance was said to be grievous in nature. But he was not examined by the doctor immediately after the occurrence. The X-ray plate on the basis of which the doctor opined the said injury to be grievous has not been proved. There is no evidence in the record to suggest that the prosecution was aware about the alleged injuries sustained by the appellant-accused person immediately after the occurrence to rule out the same being manufactured by the defence. The X-ray plate on the basis of which the doctor opined the said injury to be grievous has not been proved. There is no evidence in the record to suggest that the prosecution was aware about the alleged injuries sustained by the appellant-accused person immediately after the occurrence to rule out the same being manufactured by the defence. The testimonies of the prosecution witnesses so far as it relates to Vikash Singh assaulting P.W.6 on his head with dangerous weapon and appellant no.2-Bajrang Singh assaulting on the head of P.W.2 with farsa and assault upon the P.W.5 by Komal Singh (since deceased) is probable, consistent and creditworthy and it far outweighs the effect of the omission on the part of the prosecution to explain the injuries on the accused persons of the nature sustained by them. Hence in this case the non-explanation of the alleged injuries of the accused persons will not be fatal. 22. So far as the contention of the learned Senior Counsel for the appellants regarding the defect in examination of the accused person under section 313 of the Cr.P.C. and consideration of the evidence which were not specifically put to the appellant-accused person is concerned it is a settled principle of law that mere defective/improper examination under section 313, Cr.P.C. is not a ground for setting aside the conviction of any accused, unless it has resulted in prejudice to the accused. Further unless the examination under section 313, Cr.P.C. is done in a perverse way, there cannot be any prejudice to the accused. The Hon’ble Supreme Court of India has held as under in this respect in the case of Suresh Chandra Bahri v. State of Bihar reported in AIR 1994(SC) 2420. “26. Learned senior counsel Shri Sushil Kumar appearing for the appellant Rajpal Sharma submitted that in view of the fact that no question relating to motive having been put to the appellants on the point of motive under S. 313 of the Code of Criminal Procedure, no motive for the commission of the crime can be attributed to the appellants nor the same can be reckoned as circumstance against the appellants. It is no doubt true that the underlined object behind Sec. 313, Cr. It is no doubt true that the underlined object behind Sec. 313, Cr. is to enable the accused to explain any circumstances appearing against him in the evidence and this object is based on the maxim audialterampartem which is one of the principles of naturaI justice. It has always been regarded unfair to rely upon any incriminating circumstance without affording the accused an opportunity of explaining the said incriminating circumstance. The provisions in S. 313, therefore, make it obligatory on the Court to question the accused on the evidence and circumstance appearing against him so as to apprise him the exact case which he is required to meet. But it would not be enough for the accused to show that he has not been questioned or examined on a particular circumstance but he must also show that such non-examination has actually and materially prejudiced him and has resulted in failure of justice, In other words in the event of any inadvertent omission on the part of the Court to question the accused on any incriminating circumstance appearing against him the same cannot ipso facto vitiate the trial unless it is shown that same prejudice was caused to him. In Bejoy Chand v. State of West Bengal, 1952 CrLJ 644 : AIR 1952 SC 105 this Court took the view that it is not sufficient for the accused merely to show that he has not been fully examined as required by Sec. 342 of the Criminal Procedure Code (now S. 313 in the new Code) but he must also show that such examination has materially prejudiced him. The same view was again reiterated by this Court in Rama Shankar v. State of West Bengal, AIR 1962 SC 1239 , para 14. In the present case before us it may be noted that no such point was raised and no such objection seems to have been advanced either before the Trial Court or the High Court and it is being raised for the first time before this Court which appears to as to be an after thought. Secondly, learned counsel appearing for the appellants was unable to place before us as to what in fact was the real prejudice caused to the appellants by omission to question the accused/ appellant Suresh Bahri on the point of his motive for the crime. Secondly, learned counsel appearing for the appellants was unable to place before us as to what in fact was the real prejudice caused to the appellants by omission to question the accused/ appellant Suresh Bahri on the point of his motive for the crime. No material was also placed before us to show as to what and in what manner the prejudice, if any, was caused to the appellants or any of them. 27. Apart from what has been stated above, it may be pointed out that it cannot be said that the appellants were totally unaware of the substance of the accusation against them with regard to the motive part. In this regard a reference may be made to question Nos. 5, 6 and 7 which were put to the appellant Suresh Bahri in the course of his statement recorded under S. 313, Cr.P.C. The sum and substance of these questions is that from the prosecution evidence it turns out that the acquitted accused Y.D. Arya, the maternal uncle of the appellant. Suresh Bahri was living in a portion-of the upper storey of his house at Delhi. He with the consent of Santosh Bahri, the mother of Suresh Bahri, was interfering in the family affairs as well as in business matters by reason of which the maternal uncle had to leave the house and that having regard to the future of her children Urshia Bahri not only wanted to manage the property but also to dispose of the same which was not liked by Suresh Bahri and with a view to remove Urshia Bahri from his way the appellant Suresh Bahri wanted to commit her murder. In view of these questions and examination of Suresh Bahri it cannot be said that he was totally unaware of the substance of the accusation and charge against him or that he was not examined on the question of motive at all. In the facts and circumstances discussed above it cannot be said that any prejudice was caused to the appellant. The contention of the learned counsel for the appellants in this behalf therefore has no merit.” (Emphasis Supplied) 23. As already indicated above the appellant-accused persons were put the specific question that on 02.11.1997 being the member of the unlawful assembly and armed with deadly weapons they attacked P.Ws.2, 5 and 6 and injured them. The contention of the learned counsel for the appellants in this behalf therefore has no merit.” (Emphasis Supplied) 23. As already indicated above the appellant-accused persons were put the specific question that on 02.11.1997 being the member of the unlawful assembly and armed with deadly weapons they attacked P.Ws.2, 5 and 6 and injured them. This evidence asked to explain by the appellant-accused persons was sufficient to give opportunity to the appellant-accused persons which they desired to give regarding the assault made by them to victims. The learned Senior Counsel appearing for the appellant-accused persons could not cite any specific evidence which was not put to the appellant-accused persons but used against them. Under such circumstances it cannot be said that the appellants were totally unaware of the substance of the accusation against them and thus it cannot be said that any prejudice was caused to the appellant. Hence there is no merit in this limb of argument of the learned Senior Counsel for the appellant-accused persons. 24. So far as the contention of the learned Senior Counsel for the appellant-accused persons regarding the offence punishable under section 307 of the Indian Penal Code being not made out is concerned, it is a settled principle of law that the essentials of section 307 of the Indian Penal Code are as under:- (i) That the death of a human being was attempted; (ii) That such death was attempted to be caused by, or in consequence of the act of the accused; (iii) That such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as; (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury. The question of intention to kill or the knowledge that the act would cause death, in terms of Section 307 IPC, is a question of fact and not one of law. The question of intention to kill or the knowledge that the act would cause death, in terms of Section 307 IPC, is a question of fact and not one of law. To attract, the provision of Section 307 IPC, the guilty intention or the knowledge with which an act was done, is material irrespective of its result. The intention and the knowledge are the matters of inference to be drawn from the probability of circumstances and cannot be measured merely from the result. The line of demarcation between an offence punishable under section 324 IPC and the one punishable under section 307 IPC is that to fall within Section 307 IPC, the act must be done with such mens-rea as would have constituted the act of murder if death had occurred. In an attempt to commit murder, all the elements of murder exist, except the fact of death has to exist. Intention of the accused depends upon the facts and circumstances of the particular case. (i) the nature of the weapon used, (ii) express intention at the time of the act, (iii) severity and persistence of the blows. All have to be considered cumulatively in arriving at any conclusion. So far as conviction is to be based on knowledge as distinguished from intention, law has to apply according to the degree of likelihood and the knowledge of the assailant established. The Hon’ble Supreme Court of India in this respect has held as under in the case of Hari Kishan and State of Haryana v. Sukhbir Singh and others reported in AIR 1988 SC 2127 . 7. On the first question as to acquittal of the accused under S. 307/149, IPC, some significant aspects may be borne in mind. Under S. 307, IPC what the Court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary (to) constitute murder. Without this ingredient being established, there can be no offence of "attempt to murder". Under S. 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The intention or knowledge of the accused must be such as is necessary (to) constitute murder. Without this ingredient being established, there can be no offence of "attempt to murder". Under S. 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention. In this case, two parties in the course of a fight inflicted on each other injuries both serious and minor. The accused though armed with ballam never used the sharp edge of it. They used only the blunt side of it despite they being attacked by the other side. They suffered injuries but were not provoked or tempted to use the cutting edge of the weapon. It is very very significant. It seems to us that they had no intention to commit murder. They had no motive either. The fight as the High Court has observed, might have been a sudden flare up. Where the fight is accidental owing to a sudden quarrel, the conviction under S. 307 is generally not called for. We, therefore, see no reason to disturb the acquittal of accused under S. 307, IPC.(Emphasis Supplied) 25. Coming to the facts of this case, there is no evidence in the record that any repetition of blow was made by the appellant-accused persons. There was land dispute between parties. The appellant-accused persons have also sustained injuries. Though as per the case of the prosecution there were many assailants in comparison to only three victims, still the assault stopped even though the assailants were aware that the victims were alive, when they stopped the assault. Considering the evidence in the record this court is of the considered view that the evidence in the record falls short of establishing the charge for the offence punishable under section 307 of the Indian penal code. Considering the evidence in the record this court is of the considered view that the evidence in the record falls short of establishing the charge for the offence punishable under section 307 of the Indian penal code. There is no specific or cogent evidence in record regarding the assault made by the appellant-accused persons except against appellant no.1-Vikash Singh who assaulted P.W.6 on his head with a deadly weapon and appellant no.2-Bajrang Singh who assaulted on the head of P.W.2 with farsa and the injured witnesses themselves have stated regarding the involvement of appellant no.1-Vikash Singh and appellant no.2-Bajrang Singh in the offence. The evidence of assault against rest of the appellant-accused persons is general and omnibus in nature. There is no corroboration of any specific evidence against rest of the appellant-accused persons of having assaulted any injured person. Keeping in view that there is admittedly land dispute and enmity between the appellant-accused persons and the victim and apart from the appellant-accused persons are related to each other, in the considered opinion of this court this is a fit case where all the appellant-accused persons namely Gokhul Singh, Dhananjay Singh, Mritunjay Singh, Kailu Singh, Ram Pravesh Singh, Vinod Singh and Dharmendra Singh be acquitted of all the charges by giving them the benefit of doubt. So far as the appellant nos.1 and 2 namely Vikash Singh and Bajrang Singh respectively are concerned, there is specific evidence of assault against them which has come through also the injured witnesses that they assaulted with dangerous weapon causing hurt to the injured-victims. The evidence of the injuries inflicted by them is also corroborated by the testimony of P.W.4.- the doctor who examined the victims after the occurrence. But considering the fact that there is no allegation of repeated blows being inflicted by the appellant nos.1 and 2 namely Vikash Singh and Bajrang Singh respectively and that though as per the prosecution case there were many assailants in comparison to only three victims still the said appellant-accused persons did not proceed ahead with further assault upon the victims when they were very much aware that the injured-victims were still alive, in the considered opinion of this court the evidence in the record is sufficient to establish only the charge for the offence punishable under Section 324 of the Indian Penal Code against the appellant nos.1 and 2 namely Vikash Singh and Bajrang Singh respectively. The evidence in the record is insufficient to establish the charge for the offence punishable under section 307 of the Indian Penal Code against the appellant nos.1 and 2 namely Vikash Singh and Bajrang Singh respectively, accordingly they are acquitted of the said charge. 26. So far as the contention of the appellant regarding the non-consideration of the applicability the benefit under section 360 of the Cr.P.C. is concerned, no doubt in view of the settled principle of law as discussed above it was incumbent upon the learned trial court to consider the same before sentencing the appellant-accused persons. But this court being the appellate court can also consider the same. Keeping in view the serious nature of evidence against the appellant nos.1 and 2 namely Vikash Singh and Bajrang Singh respectively, of having assaulted the injured persons with dangerous weapons and the reason of the occurrence being an admitted land dispute as well as litigation between the parties, this Court is of the considered view that this is not a fit case where the benefit of Section 360 of the Cr.P.C. and the Provision of Probation of Offenders Act be given to the appellant nos.1 and 2 namely Vikash Singh and Bajrang Singh respectively. 27. Accordingly, the conviction of the appellant-accused persons nos.1 and 2namely Vikash Singh and Bajrang Singh respectively for the offence punishable under Section 324 of the Indian Penal Code is confirmed. But this Court is of the considered view that the evidence in the record is insufficient to establish the charge for the offence punishable under Section 148 of the Indian Penal Code against them as the evidence in the record falls short of establishing formation of an unlawful assembly. Keeping in view the nature of the assault and injury sustained, the appellant-accused persons namely Vikash Singh and Bajrang Singh are sentenced to undergo Rigorous Imprisonment for two years. 28. Accordingly, this appeal is allowed in part. Keeping in view the nature of the assault and injury sustained, the appellant-accused persons namely Vikash Singh and Bajrang Singh are sentenced to undergo Rigorous Imprisonment for two years. 28. Accordingly, this appeal is allowed in part. The accused-appellants namely Gokhul Singh, Dhananjay Singh, Mritunjay Singh, Kailu Singh, Ram Pravesh Singh, Vinod Singh and Dharmendra Singh are acquitted of all the charges for which they have been convicted by giving them the benefit of doubt while conviction of the appellant nos.1 and 2 namely Vikash Singh and Bajrang Singh is confirmed only in respect of the offence punishable under Section 324 of the Indian Penal Code and their sentence is modified to the extent as mentioned above. The said sentence will be set up from the period undergone by the appellants during the trial and after conviction. 29. The appellant nos. 1 and 2 namely Vikash Singh and Bajrang Singh are on bail. In view of the confirmation of their conviction under Section 324 of the Indian Penal Code, they are directed to surrender in the court below to serve out the remaining part of the sentence failing which the learned court below is directed to take coercive steps for their apprehension for serving out the rest of the sentence. The accused-appellants namely Gokhul Singh, Dhananjay Singh, Mritunjay Singh, Kailu Singh, Ram Pravesh Singh, Vinod Singh and Dharmendra Singh are on bail. In view of their acquittal, they are discharged of their liability of bail bonds. 30. Let the Lower Court Record be sent back along with the copy of this Judgment forthwith.