JUDGMENT : Heard the parties. 2. This appeal has been preferred by the appellants being aggrieved by the judgment of conviction dated 17.01.2006 and order of sentence dated 18.01.2006 passed by the leamed Additional Sessions Judge, F.T.C.-II, Bokaro in Sessions trial No. 116 of 1994 whereby and where under, the appellants have been held guilty and convicted for the offences punishable under Sections 326/149/148 of Indian Penal Code and have been sentenced to undergo rigorous imprisonment for three years for the offence punishable under Sections 326/149 of Indian Penal Code and rigorous imprisonment for two years for the offence punishable under Section 148 of Indian Penal Code and further have been fined for Rs. 1,000/- each with default clause. 3. The brief fact of this case as unfolded in the fardbeyan of the informant is that on 31.10.1991 at 9.30 a.m. when the informant was standing on the road near the Mama Hotel at Jodhadih More and talking to his younger brother namely Anil Kumar Singh, the appellant-accused person Chintamani Singh came with the co-accused person in a Bullet motorcycle and the co-accused Lalan Singh (since deceased), came with gun sitting on the pillion of the said Bullet motorcycle along with Anup Kumar, who was armed with hockey stick. The other co-accused persons variously armed came riding a YEZDI motorcycle and some other accused persons came in a car. The Bullet motorcycle dashed the informant by which, the informant fell down. When his younger brother namely Anil Kumar Singh came to help the informant, he was stabbed on his abdomen. Anil also fell down on the road, at which, the appellant-accused persons along with the co-accused fled away. While fleeing away, Lalan Singh was threatening of dire consequences and threatened to kill. The informant and his brother-Anil sustained injuries and they. were brought to hospital. The police recorded Jardbeyan of the informant at Bokaro General Hospital. On the basis of the Jardbeyan of the informant, police registered Chas P.S. case No. 153 of 91 and took up the investigation of the case. 4. After completion of the investigation, police submitted the police report. were brought to hospital. The police recorded Jardbeyan of the informant at Bokaro General Hospital. On the basis of the Jardbeyan of the informant, police registered Chas P.S. case No. 153 of 91 and took up the investigation of the case. 4. After completion of the investigation, police submitted the police report. The case was committed to the Court of Session and charges for the offences punishable under Sections 307/147 of IPC were framed against the accused appellant-Jitendra Singh and charges for the offences punishable under Sections 147 and 325 of IPC were framed against the other accused appellant-Chintamani Singh and upon the appellant-accused persons pleading not guilty to the charges, they were put to trial. 5. In support of its case, the prosecution has altogether examined six witnesses. Out of the six witnesses examined by the prosecution PW 3-Sachidanand Singh is the informant of the case. He has stated that the occurrence took place on 31.10.1991 at 9.30 a.m. He was standing on the western side of the Dhanbad-Purulia road near Mama Hotel. His younger brother Anil Kumar Singh (PW 2) came there and he was talking to him. At that time, one Bullet motorcycle and one YEZDI motorcycle and a car came from Jodhadih' More. The appellant-accused Chintamani Singh was riding the Bullet motorcycle. He dashed PW 3 with the said motorcycle and PW 3 fell down. Lalan Singh and Anup Kr. Singh were on the pillion of Bullet motorcycle and after getting down; they assaulted PW 3 with lathi and hockey stick. PW 3 sustained injuries on both his legs, head and shoulder. The co-accused Anup Singh stabbed Anil Singh on his abdomen, chest and shoulder and injured him. Thereafter, Lalan fired from a gun and fled away. The persons from nearby place took PW 3 and PW 2 to the hospital. Police recorded the statement of PW 3 in hospital. On being proved by PW 3, his signature on the Jardbeyan was marked as Exhibit. PW 3 identified the accused person in the Court. In his cross-examination, PW 3 has stated that there was hot exchange of words between the appellant -accused persons with PW 2 in respect or their transport business, ones or twice prior to the occurrence. On being proved by PW 3, his signature on the Jardbeyan was marked as Exhibit. PW 3 identified the accused person in the Court. In his cross-examination, PW 3 has stated that there was hot exchange of words between the appellant -accused persons with PW 2 in respect or their transport business, ones or twice prior to the occurrence. PW 3 has stated that Police has not recorded his statement prior to the occurrence; he was standing towards the western side of the road in front of Mama Hotel. They did not show their bloodstained clothes to the police. He did not show the X-ray plates of his legs to the Police. Lalan Singh instituted a case against him, his brother Anil Singh, Sunil Singh and Ravindra Singh. In that case, charges were framed against PW 3 and others, on the allegation that Jitendra @ Munna was assaulted after being wrongfully restrained by PW 3 and others and Rs. 10,0001- was snatched away from Jitendra @ Munna, In paragraph 15, he has stated that he does not know whether Panchayati took place between them and the appellant-accused persons but he identified his signature on the panchayatinama and on his admission, his signature on the panchayatinama was marked Exhibit A/1. 6. PW 2-AniI Kumar Singh has stated that the occurrence is of 31.10.1991 at 9.30 a.m. He was talking to his brother PW 3. Six persons came on motorcycles. The appellant -Chintamani Singh was riding one motorcycle, Lalan Singh with a gun and Annu Singh with hockey stick were on the pillion of that motorcycle. At that time, one Ambassador Car also came near Mama Hotel. Chintamani dashed PW 3 with motorcycle. PW 3 fell down. The co-accused Munna Singh and others assaulted PW 3. When PW 2 went to save PW 3, Annu Singh with an intention to kill, stabbed on the abdomen of PW 2 with a knife and then, PW 2 fell down. Annu Singh again assaulted with knife, causing injuries on his shoulder and left side of his chest. The persons of the nearby locality came and took them to hospital. The appellant-accused persons after assault left the motorcycle at the place of occurrence and while fleeing away, Lalan Singh fired from his gun. In his cross-examination, PW 2 has stated that he was in a senseless state in the hospital for two days. The persons of the nearby locality came and took them to hospital. The appellant-accused persons after assault left the motorcycle at the place of occurrence and while fleeing away, Lalan Singh fired from his gun. In his cross-examination, PW 2 has stated that he was in a senseless state in the hospital for two days. In his cross-examination, PW 2 has stated that the occurrence took place at the western side of Mama Hotel towards the western side of the road. The Bullet motorcycle fell down at the place of occurrence. He did not show that place to the police. He does not know whether Jitendra Singh @ Munna was assaulted. After this occurrence, a case of assault on Jitendra Singh was instituted against PW 2 and PW 3 and others. It was alleged in that case that on 31.10.1991 at 9.30 a.m. while Jitendra had gone to Sanjeev Hardware Store, PW 3 and others dragged him out from the shop and assaulted him. In that case, PW 2 and others were acquitted. After this occurrence, when PW 2 was in hospital, Balmiki Singh had gone to him and proposed to compromise the case and obtained the signature of PW 2 on a paper by giving an impression to PW2 that the paper he has signed is Panchaayti paper. He identified his signature over the. paper, which was marked as Exhibit A. He did not hand over the documents of treatment to the police. 7. PW 1-Bijay Kumar, has stated that the occurrence took place on 31.10.1991 at 9.30 a.m. near the Mahavir temple. PW 3 was standing near the transformer in front of the Mama Hotel and was talking to PW 2. Six persons came on motorcycle. One Bullet motorcycle and other was YEZDI motorcycle. The appellant-accused-Chintamani was riding the Bullet motorcycle. Lalan Singh and Annu Singh were on pillion of the motorcycle. The appellant-accused Chintamani dashed PW 3 with his Bullet motorcycle. PW 2 went to help PW 3. Annu Singh stabbed in the abdomen of PW 2. PW 2 fell down. At this, people from nearby places came running at which, the appellant-accused persons fled away towards Jodhadih More. A car was little ahead. 4-5 persons were sitting in the car. While fleeing away, Lalan Singh fired from the gun. In his cross-examination, PW 1 has stated that he. PW 2 fell down. At this, people from nearby places came running at which, the appellant-accused persons fled away towards Jodhadih More. A car was little ahead. 4-5 persons were sitting in the car. While fleeing away, Lalan Singh fired from the gun. In his cross-examination, PW 1 has stated that he. did not see any injury on the person of Jitendra Singh. Mama Hotel is at a distance of 100 feet from his house. The appellant-accused Chintamani dashed PW 3 with the motorcycle. 8. PW 4-Radheyshyam Agaiwal and PW 5-Sanjeev Kumar Singh, both having not supported the case of the prosecution and were declared hostile on the prayer of the prosecution. Even though they were put leading questions by the prosecution but they did not support the case of the prosecution. 9. PW 6-Upendranath Mahatha is formal witness. He is an advocate's clerk. He has identified the Jardbeyan. which has been marked as Exhibit 1. In his cross-examination, he has stated that the Jardbeyan was not written in his presence. 10. Besides the prosecution witnesses, two doctors, who examined the victims have been examined as Court witnesses. The Court witness No. I-Dr. B. Venkatesh, has stated that on 31.10.1991. he examined the PW 2 and found the following injuries :- I. I" x 1/2" x 1/2" penetrating wound on abdomen midway between umbilicus. . II. 1/4" x 1/4" incised would skin deep left upper part of chest. III. 3" x 1/4" x 1/4" incised wound on left forearm. Injury No. I was grievous caused by sharp instrument. Injury Nos. 2 and 3 were simple, caused by sharp instrument. Ages of the injuries were within six hours. The injury report of PW 2 has been marked as Exhibit 2. In his cross-examination. he has stated that this type of injury is caused when a man falls on sharp edge. Court witness No.2-Dr. Ajay Kumar. stated that on 31.01.1991. he examined IW 3 and found the following four injuries :- I. 3" x 1/2" bone deep lacerated wound anterior posteriorly over right parieto occipital region of scalp. II. 2/3" x 1/10" lacerated wound skin deep midway posterior side of right fore arm. III. Swelling. tenderness and fracture of right leg six inch below right knee. IV. 3" x 1/2" haematoma over lateral side of left ankle. All injuries were within two hours. Injury. II. 2/3" x 1/10" lacerated wound skin deep midway posterior side of right fore arm. III. Swelling. tenderness and fracture of right leg six inch below right knee. IV. 3" x 1/2" haematoma over lateral side of left ankle. All injuries were within two hours. Injury. No.2 is simple caused by hard and blunt object and injury No.3 is grievous caused by hard blunt object. In this injury report. he has mentioned that someone has mentioned X-Ray No. 42963 showing fracture of tibia of right leg. The injury report of PW 3 was under his signature which was marked as Exhibit 2/1. In his cross-examination. he stated that he has not received requisition to examine• the injured. X-ray plate was not before him. The injuries may be caused due to fall. He cannot say whether Dr. T. P. Singh is related with Laxmi Narayan Singh or not. 11. After closure of the evidence of the prosecution. the statements under Section 313. Cr PC of the appellant-accused persons were recorded wherein they denied the circumstances appearing in evidence against them. 12. In their defence. the appellant-accused persons examined three defence witnesses. Out of them. OW 2- Ram Bali Prasad is a tempo driver. He has stated that he knows the parties to the case. On 31.10.1991. at about 9.30 a.m.. he was near Mama Shop. near Jodhadih More and saw the appellant-accused Jitendia Singh was assaulted by four sons of Laxmi Singh. Later on. he heard that Rs. 27.500/ - were looted from Jitendra Singh by the sons of Laxmi Singh. In his cross-examination. he has stated that he heard about the snatching of money from the pocket and collected information about the injury being sustained. 13. DW 2-is Balmiki Singh. He has stated that on 13.11.1991. there was panchayati between the parties and DW 1 was one of the panchs. A panchanama was prepared. Both sides and the panchs signed the same. There was ill-will between the parties. The same was resolved in the panchayati and there was amicable settlement. On being proved by him. the same has been marked as Exhibit E. In his, cross-examination. DW 2 has stated that the signature of the informant does not appear over the same. 14. DW 3-Shivji Singh has identified the medical report prepared by compounder of the referral hospital. Chas. On being proved by him. the same has been marked as Exhibit E. In his, cross-examination. DW 2 has stated that the signature of the informant does not appear over the same. 14. DW 3-Shivji Singh has identified the medical report prepared by compounder of the referral hospital. Chas. It was marked as Exhibit F and injury report prepared by compounder and signed by Dr. Manjhi. which was marked Exhibit G. In his cross-examination. he has stated that the said injury report was prepared in his presence in his hospital and the authors of the said documents are in service. 15. Taking into consideration the evidence available in the record. learned Court below convicted and sentenced the appellant-accused persons as already indicated above. 16. Mr. Yadunandan Mishra. learned counsel for the appellants submits that learned Court below failed to appreciate the evidence in the record in its proper perspective. It is further submitted by Mr. Mishra that the injury report of PW 2 and PW 3 have not been duIy proved as admittedly the informant did not hand over the injury reports to the police and the doctors were not cited as witnesses in the charge-sheet. It is further submitted by the learned counsel for the appellants that the interpolation of the injury report in respect of PW 3 by mentioning therein the X-ray plate number about which, the doctor who prepared the injury report, in no uncertain manner has expressed his ignorance, creates a doubt regarding the PW 3 sustaining grievous injury because only on the basis of that X-Ray report, the doctor opined the injury of PW 3 to be grievous. It is further submitted by the learned counsel for the appellants that the prosecution witnesses have shifted the place of occurrence from in front of Mama Hotel to near transformer on the other side of the road and non-examination of I.O. without any plausible reason has prejudiced the appellant-accused persons as the place of occurrence could not be proceed and the appellant-accused persons could not confront the I.O. regarding the contradictions made by the prosecution witnesses In their depositions vis-a-vis their testimonies recorded under' Section 161, Cr PC by the I.O. It is next submitted by the learned counsel that the defence has also been prejudiced by non-examination of the I.O. as because of non-examination of the I.O. it remains inexplicable as to how' the injury reports were brought on record and why the I.O. did not make any effort to obtain the injury reports and if at all, the PW 2 and PW 3 sustained injuries in connection with the alleged occurrence and were under treatment in connection with such injuries. It is further submitted that though the alleged occurrence took place in a very busy locality at 9.30 a.m. but no independent witness has been examined and learned Court below erred by not considering all these valuable facts while coming to the conclusion that the prosecution has succeeded in establishing the charges. It is further submitted that learned Court below erred in not considering that PW 4 and PW 5 have not supported the prosecution case and in the absence of any evidence regarding the common object of the appellant-accused persons, learned Court below ought not have convicted only three appellant-accused persons for the offence punishable under Sections 148 or 326 read with 149, IPC. It is next submitted by learned counsel for the appellants that there is no plausible reason as to why the Informant withheld the name of the person who allegedly stabbed the PW 2 in the FIR and that the evidence of the prosecution suffers from ambiguity as the prosecution has suppressed the fact that the appellant-accused Jitendra Singh sustained injuries as is evident from Exhibit G. It is further submitted by Mr. Mishra that the prosecution has failed to explain the grievous injury sustained by the accused person that itself creates doubt about the case of the prosecution. Mr. Mishra that the prosecution has failed to explain the grievous injury sustained by the accused person that itself creates doubt about the case of the prosecution. Mr. Mishra further submits that Exhibit 'B' which is FIR of the counter-case, Exhibit 'C' which is charge-sheet of the counter-case and the Exhibit D which is the copy of the charge framed in the counter-case, goes to show that there was a free fight between the parties in which the informant party was the aggressor and the suppression of this fact by the prosecution shows that the prosecution has not come to Court with clean hands. It is further submitted by Mr. Mishra that learned Court below erred by not considering the depositions of the three defence witnesses examined in this case and it is lastly submitted that in view of the material contradictions in the testimonies of the witnesses on the material portions, the appellant-accused persons be acquitted by giving them the benefit of doubt, hence, the impugned judgment of conviction and order of sentence be set aside. 17. Learned Add!. PP on the other hand defended the impugned judgment and submitted that PWs 1, 2 anti 3 being the eye-witnesses of the occurrence and out of them PW 2 and PW 3 are injured witnesses. These witnesses have categorically stated about the occurrence of assault by the appellant-accused persons being the members of the unlawful assembly and that the testimonies of the doctors being the Court witness Nos. 1 and 2 who treated them. establishes that grievous injuries have been caused to both PW 2 and PW 3 and the same is sufficient to establish each of the charges for the offences punishable under Sections 326/149 as well as Section 148, IPC. It is lastly submitted that learned Court below having rightly convicted the appellant-accused persons and the sentence is proper, hence this appeal being without any merit be. dismissed. 18. Having heard learned counsel for the appellants and after going through the record. it is pertinent to mention here that this is a settled principle of law that in the absence of a finding that assembly was prompted by "common object" within the ambit of Section 141, IPC, it cannot be branded as unlawful assembly. dismissed. 18. Having heard learned counsel for the appellants and after going through the record. it is pertinent to mention here that this is a settled principle of law that in the absence of a finding that assembly was prompted by "common object" within the ambit of Section 141, IPC, it cannot be branded as unlawful assembly. It will be relevant in this respect to refer to the observation of the Hon'ble Supreme Court of India the case of Komma Neelakantha Reddy and others v. The State of A.P. in AIR 1978 SC 1021 in paragraph-9 which is as under : "... ... ... ... We are mindful of the fact that under the explanation to Section 141, I.P.C., an assembly which was not unlawful when it assembled may subsequently become an unlawful assembly, but there is nothing in the testimony of the three police witnesses to show that this was so in the present case or that the other accused exhorted those who fired the guns or knew that the guns would be fired. An offence, will no doubt fall within the purview of Section 149, I.P.C. even if members of the assembly knew that it was "likely to be committed" in prosecution of their common object or if the offence was such as the members of that assembly knew to be likely to be committed in prosecution of that object. There is however nothing in the statements of the three police witnesses to prove that this was so. Section 149, I.P.C. will not therefore fasten criminal liability on the other accused." It is also a settled principle of law that going in a body cannot be a decisive factor in inferring a common object. Many other factors such a membership of the assembly, weapons used and nature of the injuries as well as other surrounding circumstances are also to he taken into consideration. In a given case, the prosecution has to prove the person concerned was not only a member of the unlawful assembly at some stage, but also shared some common object at all crucial stages as has been held by the Hon'ble Supreme Court of India in the case of Haramant Laxmappa Kukkadi v. State of Karnataka reported in 1994 (1) SCC 736 wherein the Hon'ble Court as held as under in para-6 : "... ... ... ... ... ... ... ... ... Going in a body cannot be a decisive factor in inferring the common object. Many other factors, as mentioned above, have to be taken into consideration. In a given case, the prosecution has to prove that the person concerned was not only a member of the unlawful assembly at some stage but also shared the common object of the unlawful assembly at all the crucial stages... ... ... ..." It is the case of the prosecution that the appellant-accused Chintamani Singh riding on Bullet motorcycle dashed the PW 3. There is absolutely no evidence in the record that whether the dashing of PW 3 by motorcycle of the appellant-accused-Chintamani Singh was accidental or it has been deliberately caused with the intention of causing hurt to PW 3. There is also evidence in the record that Bullet motorcycle also fell down after the accident. Had the intention of the appellant-accused-Chintamani Singh been to cause hurt to PW 3 by dashing him with the motorcycle, it is highly unlikely that the motorcycle would also have fallen down at the place of occurrence. It is also improbable that as to why the appellant-accused persons fled away from the place of occurrence leaving their motorcycles when there is no evidence in the record, at least in respect of YEZDI motorcycle, was incapable of being driven from the place of occurrence. Further there is also no evidence that why the appellant -accused persons did not take away the Bullet motorcycle with them. There is no evidence in the record of each of the members of the alleged unlawful assembly exhorted others to assault. Further there is no evidence in the record to suggest that the accused-persons were aware that the alleged offence was likely to be committed. Under such circumstances and in the absence of any cogent evidence regarding common object of the appellant -accused persons, this Court is of the considered view that the evidence in the record is insufficient to establish the essential ingredients of an unlawful assembly, hence, learned trial Court certainly erred by holding that the offences punishable under Section 148, IPC or with the aid of Section 149, IPC is made out. 19. 19. So far as the offence punishable under Section 326, IPC is concerned, certainly, the prosecution witnesses have tried to suppress the fact that there was a panchayati between the parties and the matter was compromised. They have also suppressed the fact that the appellant-accused-Jitendra Singh also sustained injury. The I.O. has not been examined in this case without any plausible reason. It is evident that the prosecution has certainly been prejudiced by non-examination of the I.O. as it remains unexplained as to whether or not the I.O. made any attempt to obtain the injury reports of PW 2 or PW 3, if they were treated by the doctors concerned, who have been examined as Court witness Nos. 1 and 2. By non-examination of the I.O. also, the appellant-accused persons have been deprived of opportunity of contradicting the testimonies of the prosecution witnesses deposed in the Court vis-a-vis in their statements under Section 161, Cr PC recorded by the I.O. There is absolutely no evidence in the record regarding the appellant-accused Jitendra Singh having committed any overt act in the alleged offence. The only allegation against the other appellant -accused-Chintamani Singh is that he dashed PW 3 with the motorcycle. There is no evidence regarding any other overt act committed by him. 20. Under such circumstances, this Court is of the considered view that this is a fit case where the appellant-accused persons namely Jitendra Singh and CWntamani Singh be acquitted of all the. charges for which they have been convicted by giving them the benefit of doubt. Accordingly, appellant-accused persons namely Jitendra Singh and Chintamani Singh are acquitted of all the charges punishable under Sections 326/149 and 148 of IPC and the impugned judgment of conviction dated 17.01.2006 and order of sentence dated 18.01.2006 passed by the learned Additional Sessions Judge. F.T.C.-II, Bokaro in Sessions Trial No. 116 of 1994 being not sustainable in the law, is. set aside. Perusal of the record, reveals that the appellant-accused persons namely Jitendra Singh and Chintamani Singh are on bail. In view of their acquittal, they are discharged of the liabilities of their bail bonds. 21. Let the Lower Court Records be sent back to the Court concerned forthwith. along with a copy this judgment. 22. In result, this appeal is allowed. Appeal allowed.