JUDGMENT : Per Gautam Kumar Choudhary, J. The appellants have preferred this appeal against the judgment of conviction and sentence passed under Sections 147, 323, 307 and 302 of the IPC. Appeal preferred by Vijay Sahu (appellant no. 4) abated on his death and the instant appeal has been heard on behalf of other three appellants. 2. Informant of the case is Anand Sahu whose fardbeyan was recorded on 22.12.1995 at 20:30 hours at Doranda Hospital. As per the fardbeyan, appellant no.2- Munna Sahu had outraged the modesty of his six years old daughter on 16.12.1995 regarding which a fine of Rs.10,000/- was imposed on him by the Village Panchayat on 19.12.1995. The fine amount was paid at 10 O’ clock to the informant in the day time on 22.12.1995 by Munna Sahu. The matters did not end with the payment of fine, and the appellants at around 7O’ clock in the evening by forming an unlawful assembly came to the house of informant and started abusing them. On being opposed by informant and Kamta Sahu, appellants variously armed with lathi, Ballam (pointed weapon) started assaulting the informant and Kamta Sahu. On Hulla, villagers gathered there and interceded in the fight. It is further alleged that Bolo Sahu was caught hold by the appellants and thrown into a well, resulting in his death. Informant and Kamta Sahu were also seriously injured in the assault. 3. On the basis of the fardbeyan, Doranda P.S. Case No.333/95 was registered against altogether five accused persons including these appellants. Police on investigation, found the case true against the four original appellants who were put on trial for offence under Sections 147, 323, 307 and 302 of the IPC. 4. Altogether 13 witnesses have been examined on behalf of prosecution and relevant documents including post-mortem examination report, fardbeyan, injury report and inquest report, have been adduced into evidence and marked as Exhibit 1 – 7. 5. After prosecution evidence, statement of the accused persons were recorded under Section 313 of the Cr.P.C. Defence is of innocence, but no specific defence has been pleaded in the statement under Section 313 of the Cr.P.C. Two defence witnesses have also been examined. 6. 5. After prosecution evidence, statement of the accused persons were recorded under Section 313 of the Cr.P.C. Defence is of innocence, but no specific defence has been pleaded in the statement under Section 313 of the Cr.P.C. Two defence witnesses have also been examined. 6. Judgment of conviction and sentence has been assailed on the ground that charge under Sections 34 or 149 of the IPC has not been framed and therefore, principles of ‘constructive liability’ cannot be invoked to convict the accused persons. Unless and until there is specific overt act attributed to an accused, judgment of conviction and sentence cannot be returned against him. It is further argued that after the fine had been imposed by the Village Panchayat against appellant-Munna Sahu and the said amount had been duly paid, there was no occasion for them to launch an assault. It is argued that as a matter of fact, it was the informant party who were the aggressors regarding which appellant- Vijay Sahu had lodged Doranda P.S. Case No.334/95 on the very same day of incidence against informant and ten others under Sections 147, 148, 149, 324, 323, 337, 325, 307, 437/511 of the IPC. 7. It is argued that deceased- Bolo Sahu died an accidental death as a result of fall in the unfenced well at night. 8. Learned A.P.P. has defended the judgment of conviction and sentence. It is submitted that prosecution case is established by the testimony of injured witnesses who have deposed that they were assaulted by the appellants. Further, the post-mortem examination report of the deceased- Bolo Sahu substantiates the oral account of assault, as the deceased had suffered five ante-mortem injuries over the dead body and thereafter, he was thrown into a well causing his death by drowning. FINDING 9. Where there is case and counter case arising out of the same incidence, with allegations and counter allegations of assault by both the sides, one of the tests to determine who was the assailant, is to see which party suffered more injuries. This is so because those who are the aggressors, come prepared for the assault and are less likely to suffer injuries than those who are to be attacked. 10. This is so because those who are the aggressors, come prepared for the assault and are less likely to suffer injuries than those who are to be attacked. 10. In the present case, apart from the death of Bolo Sahu whose post-mortem examination report has been proved as Exhibit 2 by the Doctor (P.W. 11), informant- Anand Sahu and Kamta Sahu also sustained the injuries as proved by the Doctor (P.W. 12). As per the post-mortem examination report of Bolo Sahu following abrasions were found on the dead body: - i. 2 x 1 cm over left abdomen, front lower part ii. 2 x 2 cm, 1 x ½ cm under surface of chin. iii. 3 x 1 cm left leg, front lower part. iv. 7 x 1 cm left flank of abdomen. v. 5 x ¼ cm right leg, back middle part. Doctor opined that injuries were ante-mortem and death was due to drowning. Anand Sahu sustained following injuries i. One incised wound 3” x ½" x skin deep over right scalp frontal region. ii. One incised wound 2 ½ x 1/2” x skin deep over right forearm. Above injuries were caused by sharp cutting weapon and were simple in nature. Kamta Sahu sustained the following injuries: - i. One lacerated wound 2” x ¼” x ½” x skin deep over right scalp parietal region. ii. One lacerated wound 1 ½” x ½” x 1/8” skin deep over right side of cheek laterally right eye. iii. Loss of left incisor tooth. Injury nos. (i) and (ii) were caused by hard and blunt object and were simple in nature. 11. Testimony of injured witnesses is given a higher degree of credence, as injured assures their presence at the place of occurrence. Injured Anand Sahu is the informant of the case and he has been examined as P.W. 9. It has been deposed by him that incidence took place on 22.12.1995 at 7 in the evening when he was sitting in his house with Kamta Sahu. In the meantime, Shankar Sahu, Munna Sahu, Prabhu Sahu, Vijay Sahu and Sanjay Sahu came variously armed with lathi-danda and started abusing and assaulting them. Shankar Sahu gave a blow with Ballam over the head of the informant and Kamta Sahu was assaulted by the accused persons with lathi-danda. The accused persons caught hold of Bolo Sahu and pushed him into the well. Shankar Sahu gave a blow with Ballam over the head of the informant and Kamta Sahu was assaulted by the accused persons with lathi-danda. The accused persons caught hold of Bolo Sahu and pushed him into the well. Genesis of the offence has been stated to be an attempt made by Munna Sahu to commit rape with his daughter for which a penalty of Rs.10,000/- was imposed. Accused persons resorted to assault as they had to pay the fine amount of Rs.10,000/- on 22.12.1995. He has admitted in para 6 that the appellants had also lodged a case of assault against the informant party. In para 9, he has deposed that the well was in front of the house of Bolo Sahu and the said house was adjacent to his house. He has admitted in para 9 that when they were assaulted, there were no one else at the place of occurrence except informant, Kamta and his wife. The well was situated about 2-3 hands from the place of occurrence where they were assaulted. From the testimony of this witness, it is evident that the other two who had witnessed the incidence, were Kamta Sahu (P.W. 4) and Dropati Devi (P.W. 10). P.W. 4 has corroborated the testimony of informant regarding the date, time and place of occurrence. Regarding the manner of assault, it has been deposed that on hulla, Dhaneshwar Sahu, Bolo Sahu, Radha Sahu and Rajesh Sahu also came there. They were also assaulted by the accused persons. Bolo Sahu was pushed into the well and he died on account of drowning. This witness also sustained dislocation of his one tooth. In para 12, he described the place of occurrence to be situated between his house and that of Anand Sahu. The said Well was situated at a distance of 15 feet from the courtyard of Anand Sahu. In para 11, he deposed that darkness had not set in, at the time of incidence. All the five accused persons had conjointly thrown Bolo Sahu into the well. P.W. 10 has deposed that her husband was sitting in the house at 7 O’ clock in the evening with Kamta Sahu, when the accused persons came and started assaulting them. When Bolo Sahu and other villagers came and intervened in the assault, they caught hold of Bolo Sahu and threw him into the well. P.W. 10 has deposed that her husband was sitting in the house at 7 O’ clock in the evening with Kamta Sahu, when the accused persons came and started assaulting them. When Bolo Sahu and other villagers came and intervened in the assault, they caught hold of Bolo Sahu and threw him into the well. As the incidence appears to have taken place near the house of the informant, therefore, this witness becomes a natural witness to the incidence. Defence has failed to impeach her credit so as to disbelieve her account. 12. Out of the two witnesses examined on behalf of defence, D.W. 2 is the Doctor, who has proved the injury sustained by Vijay Sahu on 22.12.1995. Three lacerated injuries were found on his person which were simple in nature caused by hard and blunt substance. On the same day, wife of Vijay Sahu was also examined, who suffered two lacerated wounds which were simple in nature caused by hard and blunt substance. D.W. 1 is a formal witness who has proved the fardbeyan lodged by Vijay Sahu in the counter case which has been marked as Exhibit A. 13. On combined reading of testimony of witnesses, the picture that clearly emerges is that there was an incidence of misconduct with the daughter of the informant on 16.12.1995, followed by a Panchayat that was held in a village in which Rs.10,000/- as fine was imposed on Munna Sahu. This part of the prosecution case has consistently come in the testimony of witnesses as well as in the fardbeyan of the counter case (Exhibit A). The said amount was paid to the informant on 22.12.1995 and this has also not been disputed by the defence. 14. It was the appellants who were the aggressors and not the informant party, will be borne out by the fact that the informant party have been acquitted of the charges in the counter case filed by the appellant- Vijay Sahu (since deceased). The result of the case has been admitted during course of argument by the counsel appearing on behalf of the appellants. Otherwise also, it was the informant, who at the first instance taken the matter to the Panchayat and had not shown any disposition of aggression when the incidence of misconduct took place with his daughter. 15. The result of the case has been admitted during course of argument by the counsel appearing on behalf of the appellants. Otherwise also, it was the informant, who at the first instance taken the matter to the Panchayat and had not shown any disposition of aggression when the incidence of misconduct took place with his daughter. 15. Deposition of both the injured persons (P.W. 4 and P.W. 9) regarding the manner in which they were assaulted by the appellants, has been corroborated by the medical evidence. It can therefore be safely concluded that appellants assaulted the informant and Kamta Sahu. 16. It is intriguing that charge has not been framed under Section 149 of the IPC. If only four persons were involved, charge under Section 34 of the IPC could have been framed. If charge under Section 149 IPC could not be framed as there were less than five persons, how charge under Section 147 IPC was framed, is also not clear. 17. In the absence of charge under Sections 34 and 149 of the IPC, appellants can be convicted only for the acts that has been specifically attributed to them. 18. As per evidence, informant party was assaulted with lathi and ballam resulting in simple injuries, but judgment of conviction and sentence has been passed under Section 323 of the IPC. As per P.W. 9, he was assaulted on his head with Ballam by Shankar Sahu and Kamta Sahu was assaulted by lathi. This statement of the informant is corroborated by medical evidence of the Doctor that Kamta Sahu sustained lacerated injuries, informant- Anand Sahu sustained incised injuries. Since the charge has been framed under Section 307 of the IPC, therefore, there is no impediment in convicting the accused for offence under Section 324 of the IPC. Judgment of conviction passed under Section 323 IPC is accordingly modified to Section 324 IPC. 19. As per the deposition of informant (P.W. 9) in para-9, deceased-Bolo Sahu was not even present when the actual occurrence took place. In para-12, he has further added that after being assaulted they fell down and on hulla others came there. If it was so, then his evidence that the accused persons had conjointly thrown Bolo Sahu in the well cannot be accepted. In para-12, he has further added that after being assaulted they fell down and on hulla others came there. If it was so, then his evidence that the accused persons had conjointly thrown Bolo Sahu in the well cannot be accepted. Thus, claim of P.W. 3, P.W. 5, P.W. 6, P.W. 7 and P.W. 8 to be direct eye witness to the incidence cannot be accepted. P.W. 6 has admitted in para 8 that he had given statement to the police that on Hulla, when he arrived at the place of occurrence, he heard that the appellants had pushed Bolo Sahu into the Well. I.O. (P.W. 13) has deposed in para-8 that Birla Sahu (P.W. 7) had stated to the police that he had heard that accused persons had thrown Bolo Sahu into the Well. P.W. 8 has admitted in para-1 that he had heard that accused persons had thrown Bolo Sahu into the Well. 20. From the above, it follows that part of the prosecution case, that appellants had pushed the deceased into the Well, is not substantiated by direct evidence. Testimony of witnesses on this point is hearsay and therefore, cannot form the basis for conviction of the appellants under Section 302 of the IPC. Defence plea gets credence that the Well was unfenced, and Bolo Sahu in bedlam that evening accidentally fell into it. 21. Appellants are given benefit of doubt and are acquitted of the charges under Section 302 of the IPC. In view of the fact that appellants were less than five in number, they cannot be said to have formed an unlawful assembly and accordingly they are also acquitted of the charges under Section 147 of the IPC. 22. Injuries sustained by the informant and Kamta Sahu being simple in nature, charge under Section 307 fails and the appellants are convicted under Section 324 of the IPC. Considering the overall facts and circumstance of the case, a sentence of imprisonment under Section 324 IPC, for the period already undergone shall meet the ends of justice. With this modification of finding and sentence, Criminal Appeal is partly allowed. Pending Interlocutory Application, if any, is disposed of. Let the Trial Court Records be transmitted to the Court concerned along with a copy of this judgment.