K.C. SOOD, J.

(1.) This judgment shall dispose of these two appeals arising out of common judgment of the learned Additional Sessions Judge, Solan District Solan dated January 3, 2001 whereby appellant Ashish Kanwar (A2), Rubi Thakur (A3) and Anil Thakur (A4) were convicted under Sections 326; 324, 353, 332, 307, 506, 147, 149 read with Section 34 of the Penal Code and sentenced as follows Section 147 IPC Simple imprisonment for two years. Section 326 IPC Simple imprisonment for seven years and fine of rupees 10,000/- each. Section 324 IPC Simple imprisonment for three years. Section 353 IPC Simple imprisonment for two years. Section 332 IPC Simple imprisonment for three years. Section 307 IPC Simple imprisonment for seven years and fine of rupees 10,000/- each. In case of default in the payment of fine, to undergo simple imprisonment for one year. Section 506 IPC Simple imprisonment for two years.

(2.) All the sentences imposed on the accused for various offences have been directed to run concurrently. Aggrieved, the appellants A2 and A4 are in these appeals. Prosecution case

(3.) Feroz Khan (PW1) runs a shop named and styled as Soni Sweet House. His younger brother Kashif Khan (PW11) also works with him in this shop. On May 2, 1998, four persons (not named by Feroz Khan) came, in his absence, to his shop at 12.00 noon. All of them misbehaved with his younger brother Kashif Khan and used abusive language. He was informed of the incident when he came to the shop. His younger brother identified only one of those persons, namely, Anil Kohli alias Anil Thakur (A4). Feroz Khan then went to the shop of Rajeev Kanwar (Al), a friend of Anil Thakur, and narrated the incident to him. He requested Rajeev Kanwar to stop his friend from repeating the incident but Rajeev Kanwar warned him not to interfere in the affairs of Anil Thakur. At about 6.15 in the evening, Feroz Khan received a telephone call from some person, at PCO near his shop and was informed that Rajeev Kanwar (Al), his brother Ashish Kanwar and other friends have gathered near his shop to give him beatings. He informed the Police on telephone. At about 8.30 p.m., a Police Party consisting of two Head Constables, namely, Jatinder and Ram Nath and two Constables Jeet Singh and Sohan Lal came to his shop. Feroz Khan informed the Police Party that the accused have gathered at village Kaleen to beat him. On this, Feroz Khan, accompanied by Constable Jeet Singh started towards village Kaleen. Other members of the Police also started to Kaleen from different road. When Feroz Khan and Jeet Singh were near the tunnel, accused Rajeev Kanwar (Al), Ashish Kanwar (A2), Rubi Thakur (A3), Anil Thakur (A4) and Shankar Thapa (AS) caught hold of Feroz Khan. Anil Thakur attacked him with an iron rod and other accused also gave him beatings. He was inflicted injuries with knife by A2 on his head as also on the left finger of his hand and left ear. Constable Jeet Singh (PW9) tried to save him but he too was injured with the knife by Ashish Kanwar (A2). Feroz Khan profusely bled and fell down. Constable Jeet Singh raised alarm. In the meanwhile, other two Police officials also reached the spot. Accused fled away. Feroz Khan was taken to the District Hospital, Solan. He was medically examined by Dr. A.K. Arora (PW4), Medical Officer, District Hospital, Solan. The Doctor found following injuries on the person of Feroz Khan:

(i) Incised wound left occipital parietal region, 4 cms long, 75 cm wide at centre, .5 cm deep, spindle shaped. Its edges are smooth. Clean cut, everted and having no signs of contusion, wound has no specific direction. Bleeding from wound is present. (ii) Incised wound left parietal region 5 cm long, 75 cm wide at centre, bone deep, spindle shaped, edges are smooth, clean cut, everted with no signs of contusion, wound has no specific direction. (iii) Incised wound at middle of scalp 5 cm long, .8 cm wide at centre, .5 cm deep spindle shaped, edges are smooth, clean cut everted with no signs of contusion, wound having no direction. (iv) Incised wound right frontal region 4.5 cm long, .5 cm wide at centre, .4 cm deep, spindle shaped, edges are smooth, clean cut with no signs of contusion. Wound had no specific direction. (v) Incised wound middle of forehead 3 cm length x .5 cm x .5 cm, spindle shaped edges smooth, clean cut, no contusion, no direction of wound. (vi) Incised wound left forearm, inner aspect, distal 1/3rd, 2 cm long, 1 cm wide at centre, .5 cm deep (at centre), spindle shaped, edges are smooth, clean cut, everted with no contusion, bleeding present. (vii) Incised wound, left middle finger of hand, front and middle portion, 2 cms longitudinal, .5 cm wide at centre, .2 cm deep, edges are smooth, clean cut not contused. (viii) Small cut inner and middle side of left pinna (external ear) 1 cm long, with flap of lower edge present, .5 cm wide at centre with clean cut smooth edges.

(4.) He was subsequently referred to the Post Graduate Institute at Chandigarh to the Department of Neuro Surgery. Radiologist found fracture of shaft ulna. The Doctors accordingly opined that injuries 1, 2, 3, 4, 5 and 7 were simple in nature whereas, injury No. 6 was grievous in view of the fracture of shaft ulna.

(5.) So far injury on the person of Constable Jeet Singh is concerned. Dr. A.K. Arora, who medically examined him, found incised wound on the right side of chin obliquely placed 2.5 x 1.5 cm. The edges were smooth clean cut. There were no contusion. The injury was found to be simple by Dr. Arora (PW4).

(6.) All the four accused were tried for offences punishable under Sections 147, 149, 326, 324, 353, 332, 120-B, 307, 506 and 34 of the Penal Code. It may be noticed that accused Shankar Thapa could not be traced and was declared Proclaimed Offender.

(7.) Learned trial Judge held that accused Rajeev Kanwar was not present on the spot. He accordingly acquitted him and proceeded to convict all the three remaining accused as noticed above.

(8.) Heard Mr. Kapil Dev Sood, learned counsel for appellant Anil Thakur (A4), Mr. Dushyant Dadwal, learned counsel for Ashish Kanwar (A2) and Mr. Ashok Chaudhary, learned Additional Advocate General for the State. I was also taken through the evidence by the learned counsel for the appellants and learned Additional Advocate General. Whether Sections 147 and 149 of the Penal Code are invokable in the present case.

(9.) The first question which arises for consideration is whether the accused formed unlawful assembly as alleged. Section 141 of the Penal Code defines unlawful assembly. Section 141 reads: 141. Unlawful assembly. An assembly of five or more persons is designated as unlawful assembly, if the common object of the persons composing that assembly is FirstTo overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or Second.To resist the execution of any law, or of any legal process; or Third. To commit any mischief or criminal trespass, or other offence; or Fourth. By means of criminal force, or show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the user of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. ExplanationAn assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly

(10.) Reading of above provision shows that if five or more persons assemble for any of the purposes as stipulated in this Section, it would constitute an unlawful assembly. The essence of the offence in constituting, unlawful assembly is the commonity of the object of the assembly of five or more persons to do an unlawful act as indicated in Section 141 of the Penal Code.

(11.) In other words, to constitute an unlawful assembly the assembly must consist of five or more persons.

(12.) In the present case, learned trial Judge having held that accused Rajeev Kanwar was not present and the assembly consisted of only four persons, unmindful of the provision of Section 141 of the Penal Code proceeded to convict the accused under Sections 147, 149 of the Penal Code and other offences with the aid of Section 149 of the Code. Had he taken trouble to open the book perhaps he would have realized his mistake.

(13.) The entire case of the prosecution rests on ocular evidence of Feroz Khan (PW1) and Constable Jeet Singh (PW9) as they were the only two persons present when accused allegedly attacked them. Feroz Khan in his cross-examination clearly and unequivocally admits that Rajeev Kanwar was not present on the spot when injuries were inflicted on him by some persons. It is his words, It is correct to suggest that accused Rajiv Kanwar was not present when injuries were inflicted on me Jeet Singh (PW9) of course admittedly did not identify any of the accused nevertheless he is specific on the question of presence of Rajiv Kanwar when he states, I did not notice Shri Rajiv Kanwar anywhere nearby the shop or near village Kaleen Village Kaleen is the place where Feroz Khan and Jeet Singh were attacked. Jeet Singh is categorical that it was a dark night and he did not know any of the accused earlier. He was shown the accused in the Police Station during their custody. In his own words: I cannot tell whether Feroz Khan was not able to identify the persons who had assaulted him It was dark night on that day. I did not know the accused persons earlier. I was shown the accused persons by the Police when they were in custody/

(14.) The evidence of these two ocular witnesses leave no doubt that Rajiv Kanwar was not present and the assembly, if at all there was an assembly, consisted of only four persons including the Gorkha who had been declared proclaimed offender. Such an assembly indeed will not constitute unlawful assembly within the meaning of Section 141 of the Code and in result cannot form the basis for conviction for an offence with the aid of Section 149 of the Code.

(15.) The prosecution having failed to prove unlawful assembly of the accused, the accused would be responsible only for their individual acts.

(16.) It is the evidence of injured Feroz Khan (PW1) that Ashish Kanwar (A2) attacked him with knife. Anil Kohli alias Anil Thakur (A4) caught him and Rubi Thakur (A3) attacked him with an iron rod. This part of the evidence of Feroz Khan is unreliable and conviction of Anil Thakur and Rubi Thakur cannot be founded on this evidence alone. It is the evidence of Feroz Khan: I and C. Jeet Singh went towards Kaleen village. When we reached near the tunnel accused namely Ashish Kanwar, Anil Kohli, Rubi Thakur and one Gorkha namely Shankar Thapa met me. Ashish Kanwar attacked with knife, who is present in the Court. Anil Kohil caught me, and accused Rubi Thakur attacked me with iron rod/

(17.) Jeet Singh (PW9) does not say a word, not a whisper of Feroz Khan having been inflicted injuries with iron rod. It is his evidence: When I along with Feroz Khan reached near the temple adjacent to the Railway Track 4- 5 persons all of sudden came out from behind the bushes. They all attacked Feroz Khan He does not corroborate Feroz Khan that Anil Thakur (A4) caught Feroz Khan and Rubi Thakur inflicted injuries with iron rod. In cross-examination, as earlier noticed, he clearly and unequivocally states that it was a dark night and he had not known the accused earlier. He did not identify anyone of them and he was shown the accused by the Police when they were in custody. He, therefore, could not have seen Rubi Thakur for that reason any other person inflicting any injury with iron rod or if Rubi Thakur was armed with iron rod or Anil Thakur having caught Feroz Khan from his arms. In fact Jeet Singh does not speak about any person being armed with iron rod or any injury having been inflicted with iron rod.

(18.) The evidence of Feroz Khan that he was attacked with a rod by Rubi Thakur while he was held captive by Anil Thakur does not inspire confidence and cannot be relied upon. It appears to be an afterthought. It is significant to note that injured Feroz Khan did not name either Rubi Thakur or Anil Thakur having inflicting any injury on him with iron rod or he having been held captive in arms by Anil Thakur and Rubi Thakur having inflicting injuries with a rod after the occurrence. In his statement under Section 154 of the Code of Criminal Procedure, he merely states that when he along with Constable Jeet Singh reached near the Temple, 5/6 boys confronted him and attacked him. Out of them, Ashish Kanwar (A2) attacked him with the knife on his head and gave 4-5 knife blows and that he also gave him beatings with fist and legs. There is no word, not a whisper, not a murmur, that Rubi Thakur or Anil Thakur gave him beatings with rod or otherwise. He thus, made significant improvement to his previous statement which formed First Information Report. Feroz Khan had given different versions at different times and therefore, is unworthy of reliance on this aspect of the case.

(19.) I hardly need to emphasize that the witness who makes different statements at different times has no regard for truth and the Court, without corroboration, would not act on the testimony of such a witness.

(20.) This apart, the medical evidence on record also does not support the version given by Feroz Khan. As noticed earlier, Feroz Khan and Jeet Singh were examined by Dr. A.K. Arora (PW4). He found eight injuries on the person of Feroz Khan. All of them were incised wounds caused with sharp edged weapon. There was no injury found on the person of Feroz Khan which could have been caused by rod or any other blunt weapon. It is the evidence of Doctor Arora that all the injuries could only be caused by knife, a sharp edged weapon. Medico Legal Certificate Ex. PW4/A records against the column: The kind of weapon used or poison suspected in case of Poisoning Sharp weapon Feroz Khan was referred to the Department of Neuro Surgery in the Post Graduate Institute at Chandi-garh. Dr. Sanjay Bansal Senior Resident in the Department of Neuro Surgery Post Graduate Institute (PW-17) clearly states that injuries sustained by Feroz Khan were caused by sharp edged weapon. It is not even suggested to this witness or Dr. Arora or Dr. Sanjay Bansal that any of the injures found on the person of Feroz Khan could be sustained by a rod.

(21.) Thus, there is no acceptable and reliable evidence to show that accused Rubi Thakur (A3) or Anil Thakur (A4) inflicted any injury on the person of Feroz Khan or otherwise participated either overtly or covertly in giving beatings to Feroz Khan by Ashish Kanwar (A2).

(22.) These two accused A3 and A4 indeed cannot be roped in with the help of Section 149 or Section 34 of the Penal Code to fasten with vicarious liability.

(23.) The very presence of A3 and A4 at the place of occurrence is open to doubt. The reason is not far to seek out of the two eyewitnesses Constable Jeet Singh is categorical that he did not identify any of the accused and he saw the accused only in the custody of the Police. So far evidence of Feroz Khan (PW1) is concerned, as already noticed, he has not named these two accused in his statement under Section 154 of the Code of Criminal Procedure which is the foundation of the F.I.R. It was only in the Court that he named these two accused attributing to them that one of them caught hold of him and the other inflicted injuries with iron rod. This part of the testimony of Feroz Khan, as already noticed, cannot be accepted without corroboration particularly in view of improvements made from statement in the F.I.R. and being approved to the medical evidence. Had these two accused been present on the spot at the time of occurrence, Feroz Khan (PW1) would definitely have named them in his statement to the Police under Section 154 of the Code of Criminal Procedure or any other statement under Section 161 of the Code. The fact that incident occurred at a place where there was no light to identify the accused would be another factor to discard this part of the testimony of the victim.

(24.) To sum up, the prosecution has not been able to prove by any acceptable and reliable evidence, the participation of either Anil Thakur (Al) or Rubi Thakur (A3) in the crime or their presence at the place of occurrence. Both these accused A3 and A4 are entitled to acquittal. Role of Ashish Kanwar

(25.) The evidence on record shows that Ashish Kanwar (A2) inflicted injuries on the person of Feroz Khan and Constable Jeet Singh with knife. All the injuries were found to be simple in nature except injury No. 6, a fracture of shaft ulna, which was indeed a grievous injury. Injury on the person of Constable Jeet Singh was also found to be simple. Dr. Arora (PW4) who medically examined Feroz Khan admitted in his cross-examination that the shape of the injuries was such that weapon was used in slanting manner and not in thrusting manner. In other words, Ashish Kanwar did not intend to cause death of Feroz Khan. If such was the intention, the injuries with the knife would have been caused with thrusting knife and not in slanting manner. In the facts and circumstances of the case and the evidence on record, the provisions of Section 307 of the Penal Code are not attracted to my mind. Section 307 of the Penal Code reads: 307. Attempt to murderWhoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life or to such punishment as is hereinbe fore mentioned/

(26.) It is true that in law, it would be sufficient if there is an intention coupled with some overt act in execution of such intention but only if such act has gone far that it would have been complete but for the extraneous intervention which frustrated its intention, then such an act would fall within the ambit of Section 307 of the Penal Code, i.e. attempt to murder. It is, therefore, imperative that the prosecution must prove by acceptable evidence the intention to commit the murder and attempt to commit such an act. I hardly need to point out that burden is always upon the prosecution to establish the intention of an accused in causing particular injury to the victim. The state of mind of the accused has to be ascertained from the surrounding circumstances. There is no evidence on record from which it can be inferred, even remotely, that A2 had either motive to kill the injured Feroz Khan or had intended to kill him. On the other hand, as already discussed, the injuries according to Dr. Arora were caused by using the knife in horizontal or slanting manner and not in thrusting manner. The knife was not used by thrusting the same which would indicate the intention to kill the victim. While it is true that it is not necessary that bodily injury capable of causing death ought to have been inflicted to attract Section 307 of the Penal Code but nevertheless, nature of the injuries actually caused do provide assistance to come to the conclusion as to the intention of the accused. This is not to say that such intention cannot be gathered from other circumstances in some cases, even without reference to the injuries. The result of course is not deciding factor.

(27.) In the present case, as already noticed, there was no extraneous intervention which frustrated the result. Looking to the nature of the injuries, the manner of inflicting injuries, it cannot be said that Ashish Kanwar (A2) had intended to kill victim Feroz Khan. In this view of the matter, Ashish Kanwar is liable to be acquitted for the offence under Section 307 of the Penal Code. However, he is liable to be convicted for the offence punishable under Section 326 of the Penal Code.

(28.) Learned counsel for accused Ashish Kanwar, to be fair to him, urged that it is open to doubt whether the injuries sustained by Feroz Khan were caused by Ashish Kanwar particularly when knife Exhibit P5, the alleged weapon of offence, is not connected with the accused Ashish Kanwar. He refers to the testimony of ASI Ratta Kumar (PW15) who states that on May 17, 1998, Ashish Kanwar produced knife Exhibit P5 in the Police Station which was taken into possession by him in presence of Puran Chand and Ravi Gupta, vide memo Exhibit PW2/A but Constable Jeet Ram (PW9) is categoric and emphatic that this knife Exhibit P5 was recovered by the Police from the bushes alongwith Khukhri and rod at the place of occurrence. In his own words: Firstly knife Ex. P-5 was taken into possession by the police from the bushes from where Khukhri Ex.P-4 and Rod Ex. P-3 were recovered. Firstly Ext. P3, Ex. P-4 and Ex.P-5 were taken into possession by the Police on 3/5/1998.....

(29.) In view of the evidence of Jeet Singh, it is difficult to conclude that knife Ex. PS, the alleged weapon of offence, was produced by accused Ashish Kanwar.

(30.) This apart, it is the case of the prosecution that Ashish Kanwar produced knife Ext. PS, the alleged weapon of offence, in the Police Station when he was called for interrogation. No accused shall carry with him, to the Police Station, the weapon of offence with which he has committed the crime. It is incredible to believe this version. Having said this, the prosecution, to my mind, must not suffer for this reason. It is proved from the evidence of Feroz Khan that he was assaulted by Ashish Kanwar with knife. He is named in the F.I.R. So whether or not knife Ext. PS is weapon of offence is not material. The fact remains that Ashish Kanwar inflicted as many as eight injuries with sharp edged weapon on the person of victim Feroz Khan. One of the injuries is fracture of shaft ulna. The accused Ashish Kanwar (A2) therefore is liable to be convicted for an offence punishable under Sections 324 and 326 of the Indian Penal Code and acquitted for other offences.

(31.) In result, the appeal of Anil Thakur is allowed. He stands acquitted. His bail bonds are discharged. Fine if realized from him shall be refunded back.

(32.) Appeal of Ashish Kanwar is partly allowed. He is acquitted for offences punishable under Se

ctions 147, 149, 353, 332 and 307 of the Penal Code but convicted for offences punishable under Sections 324 and 326 of the Penal Code. He is sentenced to suffer rigorous imprisonment for one year and to pay a fine of rupees 2,000/- for offence punishable under Section 324 of the Penal Code. In case of default in the payment of fine, he shall further undergo imprisonment for six months. He is sentenced to suffer rigorous imprisonment for four years and to pay a fine of rupees S,000/- under Section 326 of the Penal Code and in case of default in the payment of fine, he shall undergo imprisonment for one year. Both the sentences shall run concurrently. (33.) It is noticed that accused Rubi Thakur has not filed any appeal against his conviction but has been found to be entitled to acquittal. The Court in such cases while considering the appeal of other accused, can alter the conviction of such accused who has not appealed against his conviction and extend same benefit to the non-appealing accused whose case is identical. (34.) The Apex Court, in similar circumstances, in Pawan Kumar observed: This Court has repeatedly observed that while hearing appeal of other accused, in case Court comes to the conclusion that no conviction of any accused is possible meaning thereby non-appealing accused as well whose conviction had attained finality, no appeal having been preferred against the High Court judgment, the benefit of that decision must be extended to the non-appealing accused in spite of the fact that he has not challenged judgment of the High Court upholding his conviction as this Court has set up a judicious precedent for the purpose of averting miscarriage of justice in similar situations (35.) I also draw support fom Chellappan Mohandas and others v. State of Kerala, Dandu Lakshmi Reddy v. State of AP. , Buoy Singh and another v. State of Bihar, Suresh Chaudhary v. State of Bihar, Gurcharan Kumar and another v. State of Rajasthan . This Court has adequate powers under Section 482 of the Code of Criminal Procedure, to pass appropriate orders for doing complete justice to the parties. (36.) Accused Rubi Thakur is accordingly acquitted. It is directed that accused Anil Thakur and Rubi Thakur shall be released forthwith. Their bail bonds shall stand discharged. Needless to say that accused Ashish Kanwar shall be entitled to set off for any period spent by him in detention during investigation, inquiry or trial against the term of imprisonment imposed upon him. Appeal disposed of accordingly.