JUDGMENT : MIR ALFAZ ALI, J. 1. This appeal is directed against the judgment and order dated 11.11.2009 passed by the learned Sessions Judge, Morigaon, in Sessions Case No. 12/2009. By the said judgment, the accused appellants were convicted under Section 147/435/323/325 IPC and awarded sentence of imprisonment for three months under Section 147 IPC, imprisonment for three months under Section 323, imprisonment for three years with fine of Rs. 500/- under Section 325 ICP and imprisonment for six months and fine of Rs. 500/- with default stipulation under Section 435 IPC. 2. As per the prosecution case, on 08.04.2008, at about 10.30 in the morning, a mobile set was snatched away from one Oliulla (PW-12). Heated argument and quarrel took place for the said incidence and thereafter eight persons named in the FIR set fire to the house of the informant Abdul Jalil. When they tried to resist the accused persons, the accused persons assaulted Jamaluddin and Roinmon Nessa with lathi. They also assaulted Rafiqul Islam causing injuries on his finger. An FIR was lodged by PW-3, Abdul Jalil, on the basis of which, police registered a case and after usual investigation submitted charge sheet under Section 147/323/324 IPC against all the accused persons named in the FIR. 3. In course of trial, charges were framed against the six accused appellants under Section 147/324/325/436 R/W 34 IPC, to which all the appellants pleaded not guilty. Prosecution examined 14 witnesses to establish the charges against the appellants. The accused appellants also examined three witnesses in their defence. On appreciation of the evidence, learned Trial Court convicted the accused appellants and awarded sentence as indicated above. 4. Aggrieved by the conviction and sentence, the accused/appellants, preferred the instant appeal. 5. I have heard Mr. D.C. Bora, learned counsel for the appellants and Ms. S. Jahan, learned Addl. P.P. Assam for the State and also considered the evidence and materials brought on record. 6. Learned counsel for the appellants submitted that there was a quarrel between two parties centering round a mobile phone and both the parties instituted criminal case against each other. It is also submitted that the prosecution evidence was not sufficient to bring home the charges against the appellants and therefore, the impugned judgment of conviction and sentence needs interference of this court. 7. It is also submitted that the prosecution evidence was not sufficient to bring home the charges against the appellants and therefore, the impugned judgment of conviction and sentence needs interference of this court. 7. In view of the submissions made by the learned counsel for the appellants, it would be beneficial at the outset to scan the evidence brought on record. 8. PW-3, the informant stated in his evidence that the accused Jamaluddin and Kasem snatched away the mobile phone of PW-12 Oliulla. Hearing alarm raised by Oliulla, Jalaluddin (since deceased) arrived the place of occurrence. According to him, Kasem and Jabbar wanted to assault Jalil. He further stated that Rahman (not accused), Rahim (not accused), Salam and Naser assaulted him by rod, lathi etc. Thereafter Kasem and Jabbar asked the other accused persons to set fire to his house. He further stated that accused Gulzar assaulted Roimon Nessa. During cross-examination, he admitted that accused Jamaluddin also sustained injury in the same incident and he also lodged a case, where he was one of the accused. He further stated that Jamaluddin was treated for about 12 days in the hospital for sustaining injuries. It was also admitted by him during cross-examination that he did not see the accused persons setting fire to his house. 9. PW-9, Roimon Nessa stated that mobile pone of Oliulla was snatched by Kasem, Jamaluddin, Abdul Sattar, Gulzar and Rahman and thereafter of all them chased Oliulla and Oliulla took shelter in the house of Jalil (PW-3). According to her, Sattar and Gulzar dealt a dao blow on her head and consequently she sustained severe injuries. This witness also admitted in her cross-examination that in the case filed by the accused for the same incident, her husband was also an accused. 10. What transpires from the testimony of PW-3 and PW-9 is that they stood contradicted on material particulars with respect to involvement of the accused persons and also the genesis of offence. According to PW-3, only Jamaluddin and Kasem snatched the mobile phone from Oliulla where upon he raised alarm, hearing which Jalaluddin arrived there, who was assaulted by the accused persons. Whereas PW-9 stated that all the 6 appellants snatched the mobile phone from Oliulla. According to PW-3, only Jamaluddin and Kasem snatched the mobile phone from Oliulla where upon he raised alarm, hearing which Jalaluddin arrived there, who was assaulted by the accused persons. Whereas PW-9 stated that all the 6 appellants snatched the mobile phone from Oliulla. Although PW-9 stated that Oliulla was chased by all the 6 appellants and Oliulla took shelter in the house of PW-3 Jalil, such testimony of PW-9 was not supported by PW-3, Jalil. 11. According to PW-1, house of Jalil was set ablaze at the instigation of Jabbar and Kasem. She further stated that while she came out hearing halla, she found Jalil, lying with injury in their courtyard. This witness categorically stated that she did not see any incident of marpit (assault). According to her there was no other person present, except herself when she noticed the incidence of setting fire. She came to know about the quarrel between two groups later on. 12. PW-2, one Moinul Hoque stated that hearing halla near the house of Jalil he came out and saw the accused Jabbar, Jamaluddin, Kasem, Sattar, Naser and some other people armed with dao, lathi etc. assaulted Jalaluddin, Abdul Jalil and one lady. This witness also stated that at the time of the incident, he alone was there to witness the occurrence and he did not notice any other person at the place of occurrence. He further stated that he did not notice any incident of setting fire to any house. 13. PW-5, Majaharul Islam stated that while he was sitting with Moinul Hoque (PW-2) and Rafiqul (PW-7), he noticed that Oliulla was chased by Jamaluddin, Jabbar, Kasem and Naser being armed with dao, lathi etc. At that time, Jalil, Roimon Nessa and Halima appeared there and tried to intervene and they were assaulted. He also stated to have seen the accused Kasem and Jabbar setting fire to the house of Jalil at the instigation of Jamaluddin. The evidence of this witness that he along with PW-2 and PW-7 were sitting together has not been supported by PW-2. 14. According to PW-7, Oliulla was chased by Jamaluddin, Abdul Kasem, Gulzar, Naser, Salem, Rahim, Abdul Rahman and some others. Thus, PW-5 and PW-7 who were admittedly sitting together at the time of occurrence are also found to have stood contradicted against each other. 14. According to PW-7, Oliulla was chased by Jamaluddin, Abdul Kasem, Gulzar, Naser, Salem, Rahim, Abdul Rahman and some others. Thus, PW-5 and PW-7 who were admittedly sitting together at the time of occurrence are also found to have stood contradicted against each other. According to PW-5, Abdul Rahim, Abdul Rahman and Gulzar Hussain were not chasing Oliulla, inasmuch as, he only stated about Jabbar, Kasem and Naser. He further stated that Jalil was assaulted by Sattar and Gulzar. This witness also stood contradicted with PW-3 as according to Jalil (PW-3) he was assaulted by Rahman, Rahim, Salem and Nasir and not by Gulzar and Sattar as deposed by PW-7. PW-7 further stated that after the incident of assault was over, other people arrived the place of occurrence. 15. PW-8 stated that Oliulla was chased by Jabbar, Kasem and Jamaluddin and he took shelter in the house of Jalaluddin. According to him, Jalaluddin was assaulted by Abdul Jabbar and Kasem with dao. He further stated that Jabbar and Kasem set fire to the house of Jalil. This witness also admitted in cross-examination that in the same occurrence, accused Jamaluddin sustained injury and was hospitalized and they also filed a case, where he (PW-8) was an accused. 16. According to PW-10, the wife of PW-3, hearing halla she came out to the courtyard and found Oliulla there, who was chased by the accused persons. She further stated that Jamaluddin, Kasem, Nasir, Sattar, Gulzar assaulted her husband (PW-3) and he sustained head injury. But, her testimony seems to have been belied by her husband (PW-3), inasmuch as, PW-3 did not implicate any one named by PW-10 except Nasir. According to PW-3, he was assaulted by Nasir as well as Rahim, who were not accused. She further stated that seeing her husband being assaulted, she went to bring water. This witness stated before the I/O that she did not notice as to who assaulted whom. Her statement before police and the contradiction with her husband (PW-3) as regard involvement of the accused clearly indicated that she was not present at the place of occurrence, though tried to project herself as eye witness. 17. This witness stated before the I/O that she did not notice as to who assaulted whom. Her statement before police and the contradiction with her husband (PW-3) as regard involvement of the accused clearly indicated that she was not present at the place of occurrence, though tried to project herself as eye witness. 17. PW-12, Oliullah, stated that while he was proceeding on bicycle, the accused Jamaluddin, Kasem, Sattar, Jabbar, GUlzar and Nasir caught hold of him and Kasem removed the mobile phone from his pocket and Abdul Jalil and Jabbar dealt him fist blows and immediately he started running for taking shelter in the house of Jalil. At that time, Jalaluddin came out for his rescue. According to him Jalil also came out and he was assaulted by Salem, Nasir, Sattar and Gulzar. This statement of PW-12 is also belied by the evidence of Jalil (PW-3) himself, who did not implicate Salem, Sattar and Gulzar Hussain. He also stated that accused persons thereafter went to the courtyard of Jalil and Jamaluddin ordered for setting fire to the house of Jalil. Kasem and Jabbar attempted to set fire to the house of Abdul Jalil and when his mother Roimon Nessa intervened, Abdul Sattar assaulted her. This witness admitted in cross-examination that the accused party also lodged a case against them and he was also an accused in the said case. Although, he stated in his evidence categorically regarding specific role of the accused persons, but during his statement before police, he did not make such statement. 18. PW-13, Mojibur Rahman deposed that when he came out hearing halla, Kasem assaulted him with lathi and other accused persons were with him. He further stated that from their side Jalaluddin, Jalil and Sattar were also present. None of the witnesses stated about the presence of this witness. 19. The doctor, who attended the injured has been examined as PW-1, who found the following injuries: "Abdul Jalil 4 x 1 x 1 cm cut injury 5 x 2 x 1 cm cut injury 3 x 2 x 1 cm cut injury Over Rt. parietal scalp caused by sharp instrument and simple in nature. Halima Khatun 3 x 2 cm bruise of Rt. side of forehead caused by blunt object and simple in nature. Mozibur Rahman 3 x 2 cm Bruise over Rt. parietal scalp caused by sharp instrument and simple in nature. Halima Khatun 3 x 2 cm bruise of Rt. side of forehead caused by blunt object and simple in nature. Mozibur Rahman 3 x 2 cm Bruise over Rt. forearm (middle of post aspect) caused by blunt object and simple in nature. Rafiqul Islam 3 x 2 cm bruise over back of Rt. side of chest caused by blunt object and simple in nature. Roimon Nessa A 3 x 3 x 2 cm bruise over Rt parietal scalp caused by blunt object and simple in nature. Jalaluddin 8 x 2 x 1 cm lacerated wound over Rt. fronto-parietal region/scalp caused by blunt object. NECT shows 1. Hemorrhage contusions in left frontal and parietal lobes. 2. Fracture in both left frontal and parietal bone. Impression Grievous injury." 20. The accused examined three witnesses being DW-1, DW-2 and DW-3. All of them have stated that on arriving at the place of occurrence, they have noticed Jamaluddin with serious injuries. According to them, they have not seen the actual incident of assault. After arriving at the place of occurrence, they found that accused Jamaluddin was seriously injured and he was taken to hospital. According to all the DWs. after departure of accused Jamaluddin and other injured, there was fire in the kitchen of Jalil and at that time no one was present there. 21. Learned trial Court is found to have recorded conviction of all the accused persons under Section 147 IPC. In order to convict a person under Section 147 IPC, there must be a clear finding that there was an unlawful assembly with any of the five objects as enumerated in Section 141 IPC. Unless there is clear finding as to constitution of an unlawful assembly with any of the common objects, there could not be a conviction under Section 147 IPC. It is also necessary to specify the common object of the unlawful assembly. It appears that the charge framed against the accused persons under Section 147 IPC was also vague, inasmuch as, no specific mention as to the common object of the unlawful assembly was made. Section 141 IPC provides that an assembly of five or more persons is designated as ‘unlawful assembly’ if the common object of the persons composing that assembly is any of the five mentioned in Section 141 IPC. Section 141 IPC provides that an assembly of five or more persons is designated as ‘unlawful assembly’ if the common object of the persons composing that assembly is any of the five mentioned in Section 141 IPC. In the present case, there was no convincing evidence that all the accused persons constituted an unlawful assembly with any common object. Evidently quarrel took place between two of the accused persons and PW-12 relating to snatching of a mobile phone from PW-12, whereupon he raised alarm, hearing which other people came and there was a sudden mutual fight between both the parties and therefore, it is difficult to presume from the above facts deposed by the prosecution witnesses, that an unlawful assembly of 5 or more persons was constituted with any common object. The materials brought on record clearly indicates that because of sudden quarrel and altercation, the incident took place. Mere incident of assault as a consequence of sudden fight between two groups comprising of 5 or more persons gathered at the place of occurrence by itself, is not sufficient to constitute an unlawful assembly as defined under Section 141 IPC, in absence of evidence that five or more persons formed an assembly with any of the common object as mentioned in Section 141 IPC. The ingredients of constituting unlawful assembly being absent, no conviction under Section 147 IPC could be recorded. 22. All the three DWs stated categorically that when they saw fire in the kitchen of Jalil, there was no other person present, as all had left in the meantime and such evidence of the DWs finds support from PW-1 and PW-2. However, the learned Trial Court is found to have totally ignored the evidence of DWs. It is to be borne in mind that there cannot be two scale or different standard for weighing the evidence adduced by prosecution and defence. Both the evidence has to be weight by the same scale. The PW-1 deposed that she did not see marpit and only saw the fire in the house of Jalil. Thus, the testimony of DW-1, DW-2 and DW-3 finds support from the testimony of PW-1 and PW-2, inasmuch as, PW-1 clearly stated that at the time of setting fire, no other person was present. PW-2 stated that though he noticed the incident of assault, he did not see any incident of setting fire to any house. Thus, the testimony of DW-1, DW-2 and DW-3 finds support from the testimony of PW-1 and PW-2, inasmuch as, PW-1 clearly stated that at the time of setting fire, no other person was present. PW-2 stated that though he noticed the incident of assault, he did not see any incident of setting fire to any house. Meaning thereby, the alleged incidence of fire took place later on. Thus, the evidence of DW-1, DW-2 and DW-3 supported by PW-1 and PW-2 leaves no room for doubt that when there was fire in the house of Jalil, the accused persons were not present there. Thus, the evidence of PW-1 and PW-2 supported by DW-1, DW-2 and DW-3 negates the prosecution version regarding Jamaluddin and Kasem setting fire to the house of Jalil. So far assault on prosecution witness is concerned, it is apparent, as discussed hereinbefore, that all the prosecution witnesses stood contradicted on material particulars with regard to involvement of the accused persons in commission of offence, more particularly assault and causing injury to the prosecution witnesses. What revealed from the prosecution evidence is that the prosecution witness tried to project different stories about the occurrence, which are found to be contradictory and mutually destructive. 23. Evidently, the accused Jamaluddin sustained severe injury in the same incident and he was hospitalized for 12 days. It is also evident that other accused persons also sustained injuries for the same incident. Admittedly, the accused persons also filed a cross case against the prosecution witnesses. What is important to note is that prosecution witness were silent as to how the accused persons sustained injuries. Absence of any explanation from the prosecution as to how the accused persons sustained injuries was certainly a vital circumstances to cast doubt on the prosecution case, more particularly when the prosecution evidence as to the genesis of the occurrence was contradictory. Not that, only the prosecution witnesses gave contradictory version in court, the genesis of the prosecution story projected in the FIR and story developed during evidence are also different. Because, the case projected in the FIR was that when the accused persons wanted to set fire to the house of Jalil, Jamaluddin and Roimon Nessa raised objection, whereupon they were assaulted, meaning thereby, the incident of assault was followed by incident of setting fire to the house. Because, the case projected in the FIR was that when the accused persons wanted to set fire to the house of Jalil, Jamaluddin and Roimon Nessa raised objection, whereupon they were assaulted, meaning thereby, the incident of assault was followed by incident of setting fire to the house. Whereas the evidence of prosecution witness revealed that the incident of assault took place prior to the incident of fire. Thus, the genesis of the occurrence stated in the FIR and that revealed from the evidence appears to be totally different. Contradictory version of the prosecution witnesses as to the genesis of the occurrence in the facts and circumstances of the case indicated, that either the prosecution witness suppressed the real facts or deposed falsely. Evidently most of the prosecution witnesses are interested, inasmuch as, prosecution witnesses were either accused in the cross case or their close relations. 24. Thus failure of the prosecution to explain the injury sustained by the accused persons, lodging of cross case, by the parties against each other suppression of the true genesis of the occurrence as well as self contradictory and mutually destructive evidence of the prosecution witnesses cast serious doubt on the prosecution case. In the above facts and circumstances, prosecution can by no stretch of imagination be held to have discharged its burden to prove the guilt of the accused persons beyond reasonable doubt and as such, in the facts and circumstances of the case, appellants ought to have been given at least the benefit of doubt. Guilt of the accused having not been proved beyond doubt, the conviction and sentence of the accused appellant cannot be maintained. Accordingly, the conviction and sentence of the appellant are set aside and the appeal is allowed. Bail bond of the appellant, if any, stands discharged.