Judgment AMIR DAS, J. 1. This appeal is directed against the judgment, dated 26th May, 1989, passed by Sri M. L. Visha, the then 2nd Addl. Sessions Judge, Giridih, whereby the appellant Babula Sahu has been convicted for the offence under Section 304 and 148, I.P.C. and sentenced to undergo rigorous imprisonment for 10 years and two years respectively and the rest of the appellants were convicted under Section 304 read with Section 149, I.P.C. and sentenced to undergo rigorous imprisonment for 10 years. Further, appellant. Pokhi Sahu Maharaj Sahu were convicted under Section 323 I.P.C. and sentenced to undergo rigorous imprisonment for 6 months. Appellants Chandrashekar and Rajendra Sahu were convicted under Section 436, I.P.C. and sentenced to undergo rigorous imprisonment for five years. However, all the sentences were dirtcted to run concurrently. 2. Briefly put, the case of the prosecution is that on 12-10-81, at about 10 A.M. the deceased Dumar Sahu along with his son came out of the house having heard some sound on his wall, no sooner they came out they found brick batting from the house of Babulal. Thereafter Dumar Sahu went towards his Gohal and found the appellant Babulal and Pokhi damaging the wall of the Gohal. When they protested, Babulal and Pokhi came there with Farsa and Lathi along with other accused persons who were also armed with Lathi. Babulal gave Farsa blow on his head. Accused Baikunth and Uttim gave lathi blows on his hand and leg. It is further said that Pokhi assaulted Murli son of the deceased with Lathi on his shoulder and accused Baikunth assaulted Murli on his head. Thereafter Chandrashekar and Rajendra set fire in the Gohal of the informant and at thai time other accused namely. Prasuram, Paryag, Kulesrwar, Kishun, Jharu and Mithu were pelting stones. On the same day at about 10.15 P.M., the S. I., namely, E. Ram, of Jamua Police Station recorded the lardbeyan, Ext. 3, of the deceased at his house. Having recorded the ferdbeyan, Jamua police instituted the case and drew a formal F.I.R., Ext. 5 and took up investigation. Initially the case was registered under Sections 324, 337, 336, 324 and 147, I.Pa. ., but subsequently on account of death of the deceased on 15-10-81, the offence under Section- 304, I.P.C. was added. Having recorded the ferdbeyan, Jamua police instituted the case and drew a formal F.I.R., Ext. 5 and took up investigation. Initially the case was registered under Sections 324, 337, 336, 324 and 147, I.Pa. ., but subsequently on account of death of the deceased on 15-10-81, the offence under Section- 304, I.P.C. was added. In due course after completion of the investigation, the police submitted final form upon which cognizance was taken and the case was committed to the Court of Session. The defence is the denial of, the offence in the manner as alleged by the prosecution. The defence took a plea that on the alleged date at the time of the occurrence, while the accused Pokhi along with his cousin Jharu Sahu, Babulal Sahu and Baikunth was repairing the wall of his Dhaba, there was brick batting by the prosecution party and on protest Dumar Sahu and his son Murli Sao along with Tuplal Sao, Prem Sahu, Toto Sao and others armed with Farstz and Lathi came there and assaulted Pokhi Sahu and Murli Sahu set fire to the straw of the Gohal. The defence came out, with a specific case that Dubalal Sao having abetted the others gave lathi blow on the left hand of Pokhi Sao, Jodha Sao gave Farsa blow on his right hand and Prem Sao also discharged the Farsa blow, but fortunately it could not hit and again Dumar Sao assaulted with bricks on his iorehead having sus. tained injuries, Pokhi fell down. It is further said that Dublal Sao gave a lathi blow on the head and Dumar Sao gave a stone blow on tht head of Pokhi Saos cousin brother, namely, Babulal Sao. Appellant Pokhi Sao lodged the information, upon which the criminal case being Jamua P.S. case No. 149/81 was instituted against the prosecution party. In due course, after completion of the investigation, the police submitted charge-sheet against the accused persons. 3. In order to prove its case, the prosecution has examined altogether 9 witnesses, out of whom, P.W. 1 Faudar Sao, P.W. 2, Bandu Sao and P.W. 3 Murli Sahu are on the point of the occurrence P.W. 4 Dr. Sita Ram Prasad and P.W. 5 Dr. Rajendra Prasad Bhagat are the medical experts. P.W. 8 Basudeo Ram is the I.O. So far P.W. 6 Basudeo Ram and P.W. 7 Toto Sahu are concerned, they have been declared hostile. Sita Ram Prasad and P.W. 5 Dr. Rajendra Prasad Bhagat are the medical experts. P.W. 8 Basudeo Ram is the I.O. So far P.W. 6 Basudeo Ram and P.W. 7 Toto Sahu are concerned, they have been declared hostile. P.W. 9 is a witness on the point of inquest made by the doctor over the dead body of the deceased. Besides the oral evidence, the prosecution has also proved some documents. To substantiate the defence story, P.W. 5 has been .examined as D.W. 1. The defence has also brought some documents in evidence. Taking into consideration the entire evidence and the circumstances of the case, the learned trial Judge found the appellants guilty for the offence levelled against them and convicted and sentenced them thereunder as referred above. 4. Mr. P. S. Dayal, learned counsel appearing on behalf of the appellant has challenged the order of conviction and sentence mainly on three grounds. His first contention is that the appellants, namely, Babu-lal and Pokhi sustained injuries at the hands of the prosecution party and they were examined by the medical experts as well as the I.O. of the case, but the prosecution has suppressed such fact. The supression of such significant matter creats a grave doubt on the authencity of the prosecution case. In this context he has referred the concerned injury report, medical evidence of D.W. 1 and the F.I.R. of Jamua P.S. case No. 149/81. In the second place, he has strongly criticised the case of the prosecution on the ground of delay in forwarding the F.I.R. and pointed out that the said F.I.R. reached the Court two days after the incident. In the third place, he has criticised the withholding of two F.I.R. named witnesses, namely, Chetlal Mahto and Manjhi Sahu as well as other independent witnesses. He has submitted that an adverse inference can be drawn against the prosecution case. He has also challenged the trial of the appellant Nos. 6, 7, 8 and 12 by the Sessions Judge on the ground of age. According to him, they were aged about 19, 15, 16 and 15 years respectively at the time of the alleged occurrence and as such they should have been tried by the Children Court. He has also challenged the trial of the appellant Nos. 6, 7, 8 and 12 by the Sessions Judge on the ground of age. According to him, they were aged about 19, 15, 16 and 15 years respectively at the time of the alleged occurrence and as such they should have been tried by the Children Court. In the last his contention is that the conviction of appellant Babulal for the offence under Section 304 and the conviction of rest of the appellants for the offence under Section 304 read with Section 149, I.P.C. is absolutely illegal-According to him, the assembly of the appellants cannot be designated as an unlawful assembly, without proving the fact that the assembly had a common intention to cause culpable homicide of the deceased. 5. On the other hand, Mr. Jawahar Prasad, learned counsel for the State has supported the order of conviction and sentence passed against the appellants and argued that the evidence of the three eye-witnesses coupled with the medical evidence is sufficient, and cogent to prove the guilt of the appellants. He has pointed out that the F.I.R. was forwarded by the police on 13-10-81 and was reecived by the C.J.M. on 14-10-81 and as such there was no delay in reaching the F.I.R., because the same was lodged on 12-10-81 at 10.30 P.M. He has also referred the endorsements of the C.J.M. at the top of the F.I.R. as well as the order-sheet of the C.J.M., dated 16-10-81. He has further pointed out that no injury report was issued so far the injured appellants are concerned. No such injury report was placed before P.W. 5 on the date of his first examination. He submitted that the injury report appears to have been procured in collusion with P.W. 5. In the last he has replied that the wall in question was a common one demarcating the boundary of the houses of the parties. 6. Before taking up the 1st contention with regard to the injury sustained by accused Babulal and Pokhi, it would be pertinent to point out here that P.W. 5, Dr. Rajendra Prasad is one and the same person who has been examined as D.W. 1. Mr. M. L. Visha, the then trial Judge was also known of the fact and he has rightly commented that this witness should have been examined on recall by the predecessor Cour. Rajendra Prasad is one and the same person who has been examined as D.W. 1. Mr. M. L. Visha, the then trial Judge was also known of the fact and he has rightly commented that this witness should have been examined on recall by the predecessor Cour. But strangely after recording of his evidence as a prosecution witness, he has been allowed to be examined as a defence witness. Provision for examination of a person as a defence witness, who has already been examined as a prosecution witness is not known to Criminal Procedure Code. However, the trial Court permitted P.W. 5 to be examined as D.W. 1, and relied upon his such evidence, but without any comment regarding its admissibility. I would, therefore, like to answer the question as to whether the evidence of D.W. 1 is admissible or not. Under the Evidence Act, evidence means and include all statements which the Court permits or requires to be made before it by a witness, in relation to matters of fact under enquiry. Such statements are called oral evidence and all documents produced for inspection of the Court are called documentary evidence. In other words the word "evidence" signifies in its original sense, the state of being evident. Though the Court has adopted a regular procedure but permitted P.W. 1 to give evidence as D.W. 1 on the material fact i.e. with regard to the injuries on the person of the accused. In this view of the matter, the evidence of D.W. 1 is admissible in law, though recorded irregularly. I have already referred above that the efinite case of the defence is that two of the appellants, namely, Fokhi and Babulal had sustained injuries at the hands of the deceased Dumar Sao and other members of the prosecution party. The defence has also proved the very F.I.R. of the counter case i.e. Jamua P.S. Case No. 149/81 and also the certified copy of the final form submitted in that case. The defence has also adduced the oral evidence of D.W. 1 in order to prove the injuries sustained by Pokhi and Babulal. Dr. Rajendra Prasad, has deposed as D.W. 1 that on 12-10-81, while he was posted at Medical State Dispensray, Jamua, he had examined Pokhi and found one lacerated wound 1½" x ½" x skin deep on the left side of the forehead. Dr. Rajendra Prasad, has deposed as D.W. 1 that on 12-10-81, while he was posted at Medical State Dispensray, Jamua, he had examined Pokhi and found one lacerated wound 1½" x ½" x skin deep on the left side of the forehead. Incised wound 1½" x ½" x 1" up to the bone deep on the right forearm below elbow and incised wound 1" x l\" x partial skin deep on the left thigh. He found injury No. 1 simple in nature caused by hard and blunt substance and injuries 2 and 3 caused by sharp cutting weapons. On the same day he had examined Babulal Sao and found two lacerated wounds 1½" x I" x ½" on the left side of the forehead and another injury namely, 3½" X 1/4" skin deep on the middle of the skull, caused by hard and blunt substance. On the next following day i.e. on 13-10-81, he further examined Pokhi Sao and found the condition of injury on his right hand to be serious and so he referred him to Giridih Hospital. He has also proved the injury reports marked as Ext. D series. The I.O., P.W. 8 who was the common investigator of both the cases has deposed that he had found injuries on the person of the accused Pokhi and Babulal. The above referred positive evidence has been taken into consideration by the learned trial Judge. The learned trial Judge has held that "It is true that thene are certain circumstances in this case which go to show that accused Pokhi Sao and Babulal had received injuries on 12-10-81, but then the only grievous injury which was found by the Doctor was on the right hand of accused Pokhi, which is not on the vital part of the body. It is true that the prosecution has not explained the circumstances in which the two accused persons received injuries, but then there is evidence of eyewitnesses including Murli Sao P.W. 3, who was also an injured and has supported the case of the prosecution. Apart from this the ferdbeyan of the case was recorded on the statement of Domar Sao, who after making the ferdbeyan died. Apart from this the ferdbeyan of the case was recorded on the statement of Domar Sao, who after making the ferdbeyan died. Therefore, his ferdbeyan can be used under Section 32 of the Indian Evidence Act, in which he has stated that he was assaulted by Farsa on his head by accused Babulal, Uttim and Baikunth Sao assaulted him with Lathi. So in view of these facts mere presence of some injuries on some accused persons will not be a ground to discard the entire prosecution case." 7. In view of the above finding of the learned trial Judge, there can be no doubt that Babulal and Pokhi had sustained injuries on their person in course of the said occurrence. Now the question arises as to whether non-explanation of the injuries sustained by the accused can be a ground for discarding the whole prosecution case ? The effect of non-explanation of the injuries is a question of fact, which in some cases may undermine the evidence and shake the foundation of the case, while in others it may have little or no adverse affect on the prosecution case. In the case of Basudewan v. The State of Kerala, the Supreme Court has held that in a murder case, non-explanation of injuries sustained by the accused at about the time of the occurrence or in course of altercation is a very important circumstance from which the Court can draw the following inferences : (1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version ; (2) That the witnesses who have denied the presence of the injuries on the person of the accused are being on a very material point and, therefore, their evidence is unreliable ; and (3) That in case there is a defence version, which explains the injuries on the person of the accused, it renders probable as to throw doubt on the prosecution case. In the instant case, almost all the witnesses have denied to have seen the injuries on the persons of these two appellants, namely, Pokhi and Babulal. Not only this, the prosecution has offered no explanation for the injuries received by thern. In the instant case, almost all the witnesses have denied to have seen the injuries on the persons of these two appellants, namely, Pokhi and Babulal. Not only this, the prosecution has offered no explanation for the injuries received by thern. From the evidence, it is manifest that there was a dispute between the parties and the witnesses, no doubt, one of them injured, are enmical, and in such circumstances the omission on the part of the prosecution to explain the injuries sustained by Pokhi and Babulal assumes much greater importance. The learned trial Court is right in his view that the ferdbeyon of Domar is a dying declaration, but merely on that ground non-explanation of the injuries cannot be overlooked. No doubt, the evidence of P.W. 3 is entitled to weight, as he was an injured, but his evidence has to be scrutinised with due regard to the circumstances involved in the case. In this context, I may refer one significant fact that no incised wound on the head of the deceased Domar Sao was found by P.W. 5, though he was said to have been assaulted with Farsa by appellant Babulal. All the witnesses including P.W. 3 have deposed that appellant Babulal gave a Farsa blow, but none of them have said that the blow was given with its blunt portion. The injuries found on the person of the deceased were one laceration and one abrasion. The injury report of Domar Sao has been marked as. Ext. 2. P.W. 4 Dr. Sita Ram Jaiswal, who held the post-mortem examination over the dead body of Dumar Sao found ipartial healed stiched lacerated wound and several bruises with abrasion partial healed of different sizes on the skull and shoulder joint and back side of elbow joint. On dissection he found fracture of left parital bone extending to temporal bone and blood clots as well. Apart from the opinion of the doctor, the very discreption of the lacerated wounds 1½ x 1/4" x skin deep dispells its production by a sharp cutting instrument. Skin deep laceration also dispells the truth that it was caused by a heavy weapon like Farsa. The learned trial Judge has expressed his view that the Farsa might have been dealt with its back portion. But tills view is not supported by any material available on the record. Skin deep laceration also dispells the truth that it was caused by a heavy weapon like Farsa. The learned trial Judge has expressed his view that the Farsa might have been dealt with its back portion. But tills view is not supported by any material available on the record. No new theory or explanation in order to fill up the lacuna of the prosecution case should have been given by the trial Judge. I have no hesitation in holding that, the learned Trial Judge by expressing such views has made an attempt to fill up the gaps and thereby the vital inconsistency in between the oral testimony and the medical evidence has erroneously been removed, which resulted in gross miscarriage of justice. In my view such an important inconsistency in the medical evidence and in oral testimony raises a great deal of doubt in the authencity of the statement made by the deceased in his ferdbeyan as also the evidence adduced by the witnesses. 8. The second significant fact is the absence of injury on any of the legs of the deceased. At the risk of repetition. I may point out that the appellant Unim is said to haw assaulted the deceased with Lathi on his leg, which has not been corroborated by the medical evidence Thus the assault by Uttim on the leg of the deceased is not beyond suspicion. This aspect of the matter has not been taken into consideration by the learned trial Judge. In view of the above discussion, I come to the conclusion that the evidence adduced by the prosecution itself is contrary to the central point of the occurrence, namely the assault on the deceased and P.W. 3. Thus such evidence does not inspire confidence and the case of assault by Babulal and Uttim on the deceased is not proved beyond all reasonable doubts. Thus, their conviction is not tenable in law. 9. On this back ground now I will take up as to whether because of non-explanation of the injuries sustained by the two appellants, the entire case of the prosecution can be thrown out. I have already referred above that the non-explanation of the injuries on the appellants is a question of fact and not of law. I have already dealt with the injuries found on the person of two of the appellants, namely. Babulal and Pokhi. At the risk of repetation. I have already referred above that the non-explanation of the injuries on the appellants is a question of fact and not of law. I have already dealt with the injuries found on the person of two of the appellants, namely. Babulal and Pokhi. At the risk of repetation. I may refer that besides one grievous injury, Pokhi sustained injuries on his forehead and Babulal sustained injuries one in the middle of skull and another on his forehead. Thus these injuries were so prominent that they could not have been overlooked by the witnesses. Almost all the witnesses have deposed that they had not seen the injuries on the person of these two appellants. This is nothing but supression of fact. Thus they can safely be held that they have deposed falsely and thereby they have discredited themselves. The self contradictory statement of the deceased as referred above touched the very core and falsifies the story of assault made by Babulal and Uttim. Under such circumstances, non-explanation of the injuries assumes much more importance and therefore. I have no hesitation in holding that the prosecution has failed to prove the very genesis of the case as well as the witnesses have supressed the injuries received by two of the appellants and as such they are not reliable witnesses. Consequently I find and hold that the entire prosecution case is not proved beyond all reasonable doubts. 10. The next contention raised by Mr. Dayal. regarding the delay in reaching the F.I.R. suffers from fallacy. The distance between the place of occurrence and the police station is 18 kms. The F.I.R. was lodged on 12-10-81 at 10 P.M. and was forwarded on the next following morning on 13-10-81. The endorsement on the top of the F.I.R. shows that it was received in the Court on 14-10-81. Thus there appears no delay at any stage in reaching the F.I.R. in the Court of the C.J.M. Of course, non-examination of the F.I.R. named witnesses, as urged by Mr. Dayal, merits consideration. Chetalal and Majhi are the F.I.R.. named witnesses, but they have not been examined. Not only this, even no explanation for their non-examination has been offered by the prosecution. In the instant case, where there is a land dispute between the parties, the examination of the F.I.R. named witnesses was essential for unfolding the truth. 11. Before closing the Chapter. Chetalal and Majhi are the F.I.R.. named witnesses, but they have not been examined. Not only this, even no explanation for their non-examination has been offered by the prosecution. In the instant case, where there is a land dispute between the parties, the examination of the F.I.R. named witnesses was essential for unfolding the truth. 11. Before closing the Chapter. I would like to mention that the learned trial Judge neither discussed the grounds nor has assigned reasons that the assembly of the appellants was an unlawful assembly. Unless an assembly of 5 or more persons is held to be unlawful, there is no scope for application of Section 149, I.P.C. Section 149, I.P.C. creats a specific offence and deals with the punishment of that offence alone. It is needless to point out the difference between the common object and the common intention of an assembly. Section 149, I.P.C. signifies that every member of an unlawful assembly is responsible for the offence committed by another member or the members in prosecution of the common object of such assembly. In the instant case, Babulal and Pokhi were found damaging the wall and they were objected by the deceased and his son. It is also evident that the allegation of assault has been attributed only to Babulal, Baikunth and Uttim. The other accused, though said to have reached the spot, did not touch the body of the deceased. Under such circumstances, mere presence of the rest of the appellants is not sufficient for making them vicariously liable for the assault made by those appellants. It is well-settled that vicarious liability should not be unduely extended as has been done in this case. I am, therefore,- of the opinion that the case of the prosecution does not fall under Section 149 I.P.C. and as such the conviction of the appellants for the offence with the aid of Section 149, I.P.C. is not justified. More over when the very assault on the deceased by Babulal and Uttim has not been established, application of Section 149, I.P.C. automatically fails lesar the act of assault is concerned. 12. In view of the discussions made above and on consideration of all the pros and cons of the case, I come to the conclusion that the very genesis of the prosecution case is not above suspicion. 12. In view of the discussions made above and on consideration of all the pros and cons of the case, I come to the conclusion that the very genesis of the prosecution case is not above suspicion. In this view of the matter, I do not want to dwell upon the other aspect of the matter, as raised during course of argument. 13. Thus I come to the last conclusion that the prosecution has failed to prove its case and also the charge levelled against the appellants under Section 304 read with Section 149, I.P.C. under Section 323 and 436, I.P.C. Consequently they are acquitted for the above charges. I find force in the appeal, which has to be allowed. 14. In the result, this appeal is allowed, the order of conviction and sentence passed against the appellants is set aside and they are discharged from the liability of their bail bonds.