B. N. DASH, J. ( 1 ) THE appellants ten in Humber (hereinafter to be referred to as the accused) have been convicted under sections 304 Part II read with Sections 149, 148 and 323 read with section 149 of the Indian Penal Code, 1860 (in short I. P. C.) and sentenced to undergo rigorous imprisonment for four years each for the first said offence but no separate sentence has been awarded for the remaining offences. ( 2 ) ADMITTEDLY, Ghanshyam Pati, Kanhai Pati (hereinafter to be called the deceased) and Abhiram Pati were three brothers. Ghanshyam had no son of his own, where the deceased had three sons namely, Krushna (informant), Sanatan and Pitam bar and Abhiram had four sons namely, Ananda (accused No. 9), Purusottam (accused No. 10), Upendra (accused No. 3) and Bhaskar (accused No. 1 ). Ghanshyam being sonless, had adopted Ananda (accused No. 9 ). Hadibandhu Dhani (accused No. 2) and Nisakar Dhani (accused No. 4) are the wifes brother of Ghanshyam are krushna Dhani (accused No. 8) is the son of Hadibandhu (accused No. 2 ). Panchanan Panda (accused No. 5), Sadananda Hota (accused No. 6) and Mahendra Pati (accused No. 7) do not belong to either the Pati family or Dhani family, but they along with the deceased and other accused persons are covillagers, being residents of village Nichhibindha under Tihidi Police Station to type district of Balasore. Of the three brothers while Kanhai (deceased) and Abhiram with their family members were staying in different portions of the same house, their brother Ghanshyam who was sonless was staying with his family outside. . ( 3 ) SHORTLY stated, the prosecution case is that on 17. 6. 1986 Ghanshyam conveyed some of his landed properties in favour of Kanhai (deceased) and his close relatives and in the sale deeds executed in favour of his daughter-in-law and his son-in-law and his brother, Kanhai (deceased) was the identifying witness. Three days thereafter on 19. 6. 1986 morning all the aforesaid sons of Abhiram including Ananda challenged Kanhai (deceased) as to why he figured as identifying wiuless in the sale-deeds executed in favour of his daughter-in-law and his son-in-law and his brother and this gave rise to a fracas between the members of both the families. Three days thereafter on 19. 6. 1986 morning all the aforesaid sons of Abhiram including Ananda challenged Kanhai (deceased) as to why he figured as identifying wiuless in the sale-deeds executed in favour of his daughter-in-law and his son-in-law and his brother and this gave rise to a fracas between the members of both the families. In course of the quarrel, Ghanshyam appeared in the house and desisted both the families from quarrelling saying that he was still the owner of vast extent of landed properties which he would sell not only in favour of his adopted son Ananda but also in favour of his other utarine brothers. So saying, he instructed the sons of Abhiram and Kanhai (deceased) to-call some Bhadralogs before whom the promise made by him would be conveyed. Accordingly, Krushna (informant) called some Bhadralogs of the village who sat down on the outer verandah of his house for making amicable settlement of the dispute. Not being satisfied with such assurance given by Ghanshyam, accused Ananda, Purushottam, Upendra and Bhaskar went out of their house and reappeared at about 8 a. m. in front of their house along with other seven accused persons who were all variously armed. Accused Hadibandhu and Nisakar were each holding a Salam, accused Ananda was holding a Tenta, accused Harekrushna was holding two bombs whereas others were each armed with a lathi. Soon after their aerial, they shouted to drag the deceased Kanhai outside and on hearing such shout when Abhiram opened the outer door, accused Ananda, Purushottam, Upendra and Bhaskar ragged the deceased to the outer verandah and at that point of time a bomb thrown by accused Harekrushna being struck against the door frame exploded. Thereafter, accused Hadibandhu and Nisakar dealt a blow each with the Salams held by them on the right thigh of the deceased whereas accused Ananda dealt agent blow to the left leg above the knee joint. At the sight of such assault when Krushna (informant), Ghanshyam and Manoranjan raised protests, they were also assaulted. After receiving the bleeding injuries when the deceased Kanhai fell down on the ground, he was taken inside the house where he was given some first aid and thereafter he was removed to Ghanteswar Dispensary where he was declared dead by the medical officer. After receiving the bleeding injuries when the deceased Kanhai fell down on the ground, he was taken inside the house where he was given some first aid and thereafter he was removed to Ghanteswar Dispensary where he was declared dead by the medical officer. Thereafter, Krushna immediately rushed to Pirhat Police Out Post where he verbally reported the incident at about 1 p. m. which was reduced into writing by the police. In course of investigation, the police seized from the spot one hand bomb, some jute thread and the iron portion of Salam. Some cemented flooring and a napkin stained with blood were also seized. The injured persons were sent for medical examination. Inquest over the dead body was held and the dead body was sent for postmortem examination. Most of the seized articles were sent for chemical examination and after completion of investigation charge sheet was submitted not only against the 10 accused persons introduced above but also against seven others. After commitment of the case all the 10 accused persons named above along with their associates faced trial for the offences punishable under sections 148, 352, 323/149 and 302/ 149 I. P. C. and also under section 9 (b) of the Indian Explosives Act. ( 4 ) THE defence was one of denial of the case as alleged by the prosecution. All the accused who are sons of Abhiram, while admitting about the quarrel between them on the one hand and the deceased Kanhai and his sons on the other and also the meeting in presence of Bhadralogs, took the stand that in course of the discussion in the meeting, the three sons of Kanhai came to the spot accusing the Bhadralogs being armed with Salamt and Tenta and apprehending assaults on Bhadralogs when Kanhai (deceased) blocked the forward march of his sons standing and raising his hands, the Salamt and the Tenta held by his sons injured him for which he subsequently died. Two witnesses were examined in support of such plea. Two witnesses were examined in support of such plea. ( 5 ) THE prosecution, in order to substantiate its case, examined 9 wiulesses of whom P. W. 1 Krushna Chandra Pati is the informant; P. W. 2 Harekrushna Panda, P. W. 3 Gayadhar Pati and P. W. 4 Kamal Lochan Dhani being the co-villagers are said to be the witnesses to the alleged occurrence; P. W. 5 is an Amin who prepared the spot map marked Ext. 5; P. W. 6 is the medical officer who conducted the post-mortem examination on the dead body of the deceased; P. W. 9 is the medical officer who examined three injured persons and P. Ws. 7 and 8 are the police officers who took some part or other in the investigation of the case. On a consideration of the entire evidence on record, the learned Sessions Judge, while acquitting the co-accused persons of all the ten appellants under section 232 Cr. P. C. , came to hold that all the ten accused persons had formed an unlawful assembly, the common object of which was to assault the deceased and his sons and in prosecution of the common object of such unlawful assembly, accused Ananda, Nisakar and Hadibandhu inflicted blows on Kanhai (deceased) with the weapons with which they were armed and also accused Mahendra, Sadananda, Purushottam, Panchanan and Bhaskar assaulted others when protests were made. He also came to hold that the common object of the unlawful assembly being not to commit murder and the accused persons assaulting the deceased having not caused the injury to kill him, the accused persons could not be convicted for the offence under section 302 read with section 149 I. P. C. It was also found by him that when some of the accused namely, the sons of Abhiram were the owners in possession of a portion of the house in question, the accused persons could not also be convicted under section 352 I. P. C. Further, according to him, there was no evidence that any of the accused was in possession of any explosive and as such, none of them could be convicted for the offence punishable under section 9 (b) of the Explosives Act. Accordingly, while acquitting the accused persons of the charges under sections 352 and 302/149, I. P. C. and also under section 9 (b) of the Explosives Act, he convicted and sentenced all of them, as stated above. Being aggrieved by such judgment, the present appeal has been filed. ( 6 ) MR. B. S. Misra-1, the learned counsel for the accused persons has raised several contentions which may be dealt with in seriatim. His first contention is that the learned Sessions Judge went wrong in believing the prosecution case for two reasons; the first being that the oral evidence as to how the deceased came by the injuries is discrepant from the medical evidence and the second being that the two injured named, Manoranjan and Ghanshyam and the disinterested witnesses present near the spot at the time of the alleged occurrence were not examined and on the other hand, some witnesses inimically disposed towards the accused persons were examined. The correctness of this submission may now be examined. It stated earlier, the witnesses to the alleged occurrence are P. W s. 1 to 4 and out of them while P. W. 1 being the son of Kanhai is the informant, P. Ws. 2 to 4 are the co-villagers of the parties. All of them have unequivocally deposed that after the quarrel between the family members of the deceased and that of Abhiram over the transfer of land when their brother Ghanshyam assured the sons of Abhiram that he Twould transfer his remaining lands in their favour and wanted to call some Bhadralogs, the sons of Abhiram went inside the village and it is their further evidence that while Bhadralogs were sitting on the outer verandah of the house in question, the sons of Abhiram reappeared there along with their co-accused and the acquitted accused persons being variously armed and shouted to drag out the deceased. Ultimately, the sons of Abhiram went inside the room where thet deceased was - sleeping and dragged him out to the outer verandah. In presence of Bhadralogs, accused Hadibandhu thrusted the Balam on the right thigh of the deceased but the iron portion thereof fell down on the ground when the Balam was dragged out, accused Nisakar thrusted his Balam on the left thigh and accused Ananda thrusted the Tenta on the left thigh. In presence of Bhadralogs, accused Hadibandhu thrusted the Balam on the right thigh of the deceased but the iron portion thereof fell down on the ground when the Balam was dragged out, accused Nisakar thrusted his Balam on the left thigh and accused Ananda thrusted the Tenta on the left thigh. P. W. claims to have his bamboo clump near the residential house of deceased and according to him he saw the alleged occurrence because the same started when he was near that bamboo clump. It is admitted by him that against him as well as P. W. 1 and others, accused Hadibandhu had filed a criminal case. In spits of such inimical terms, the learned Sessions Judge has believed his evidence particularly when his competency to dispose about the alleged occurrence went unchallenged and his evidence was not found to be otherwise unreliable. P. W. 3 is a close neighbour of the parties, his house being one house apart from the house in question and as such, his competency to depose about the alleged occurrence can hardly be doubted particularly when the occurrence took place on the outer varandah adjoining the village street. According to the learned Sessions judge, this witness was an accused in a criminal case filed by accused Abhiram and he was also bail or for P. Ws. 1 and 2 and others in a criminal case. Not with standing such relationship of this witness with the parties his evidence was relied upon by the learned Sessions Judge because there was no infirmity ill his evidence and he was a competent witness. P. W. 4 has his house at a distance of about 200 cubits from the house in question and according to him, he came near the place of alleged occurrence out of curiosity. When it is there in the evidence that sons of Abhiram reappeared near their house along with others parading in the village street with deadly weapons, the assertion of this witness that he came near the spot out of curiosity is liable to be accepted. It is, thus, seen that this witness is also competent to depose as to the alleged occurrence. On an analysis of the evidence of P. Ws. 1 to 4. It is, thus, seen that this witness is also competent to depose as to the alleged occurrence. On an analysis of the evidence of P. Ws. 1 to 4. It is seen that as a, result of the assaults by accused Hadibandhu, Nisakar and Ananda, the deceased was expected to have received only three injuries, but the medical evidence of P. W. 6 shows that at the time of his conducting the postmortem examination on 20. 6. 1986 at 11. 30 A. M. he found in all four injuries, two penetrating wounds on the left thigh and two lacerated wounds on the right thigh. Relying on this discrepancy, it is urged by Mr. Misra for the accused persons that the learned Sessions Judge should have disbelieved the prosecution case. Such discrepancy, if the prosecution case is otherwise reliable, cannot be a good ground for discarding the prosecution case because by thrusting a Salam two injuries are possible if the iron portion thereof falls down on the ground, as happened in this case, having loose contact with the handle. All the eye -witnesses having deposed that the deceased fell down after receiving all the three blows and that the blows were given from the front side of the deceased and the medical officer- (P. W. 6) having deposed that the lacerated wounds on the right (high are not possible, if the blows are given from the front side of the deceased, it i. e; urged by Mr. Misra for the accused persons that the evidence of the P. Ws. should have been disbelieved by the learned Sessions Judge. There is no evidence whether the blow to the right thigh was first given or the blows to the left thigh. In such a situation, court has to make a pragmatic approach. If the blows to the left thigh were rust given, it is expected that the deceased should have fallen down on the ground with his face down ward or side-wise and thereafter if the blow to the right thigh was given, such injuries were quite possible. In that view of the matter, the learned Sessions Judge was thoroughly justified in ignoring such inconsistency when the evidence of P. Ws. 1 to 4 were otherwise found to be dependable. ( 7 ) IT is in the evidence of P. Ws. In that view of the matter, the learned Sessions Judge was thoroughly justified in ignoring such inconsistency when the evidence of P. Ws. 1 to 4 were otherwise found to be dependable. ( 7 ) IT is in the evidence of P. Ws. 1 to 4 that when Manoranjan and Ghanshyam raised protests at the sight of the assaults on the deceased, they were also assaulted by accused Sadananda, Purushottam, Panchanan and Bhaskar. Further, the medical evidence of P. W. 9 goes to show that on 19. 6. 1986 between 1. 00 P. M. to 1. 30 P. M. he examined Manoranjan and Ghanshyam and found some bruises on their persons, but those injured have not been examined. It is further seen from the evidence of P. W. 3 that about 24 to 30 outsiders were also present near about the place of occurrence at the material time. The non-examination of those outsiders and the injured Manoranjan and Ghanshyam is the basis for the argument by Mr. Misra that when P. Ws. 1 to 4 who were inimically disposed towards the accused persons were preferred to those injured and outsiders, the learned Sessions Judge should have disbelieved the prosecution case. ( 8 ) THE non-examination of any of those outsiders can never be considered as militating against the prosecution case because it is not elicited from P. W. 3 that those were independent witnesses. By saying that 24 to 30 outsiders were present P. W. 3 might have meant to convey that those outsiders were like him and P. Ws. 2 and 4 having not belonged to the family of Kanhai and Abhiram. As regards non-examination of injured Manoranjan and Ghanshyam, it may be said that the prosecution should have done well to examine them, but the question arises, if any adverse inference can be drawn for their non-examination. There can be no doubt that the prosecution owes a duty to the Court to be fair, but where a number of persons have witnessed the occurrence, it is open to the prosecution to make a fair and honest selection and the purpose should not be a suppress independent witnesses (vide State of Orissa v. Dayal Dayanidhi Ghosh and others1. In this case there were several witnesses to the alleged occurrence and the prosecution selected to examine four of them. In this case there were several witnesses to the alleged occurrence and the prosecution selected to examine four of them. The examination of these two injured would not have improved the prosecution case particularly when the assaults on them and the injuries on their persons have been otherwise, I proved. Again, those two injured cannot be said to be independent persons because they are directly or indirectly related to the deceased and his brother Abhiram. Since the examination of those two injured could not have improved the prosecution case no adverse inference can be drawn for their non-examination. ( 9 ) THE second contention of Mr. Misra for the accused is that since on the verbal report of the informant a station diary entry was made and the same was not produced in court the F. I. R. , Ext. 1 cannot be said to be earlier in point of time. There is no evidence that on the basis of the oral report submitted by the information (P. W. 1) the station diary entry was first made. On the other hand, P. W. 7 who reduced the verbal report of the informal into writing had deposed that the facts contained in the F. 1. R. were also mentioned in S. O. Entry No. 272 of the same date. Such evidence means that after the F. I. R. was reduced into writing the same was forwarded to the Officer-in-charge of Tihidi Police Station (P. W. 8) after noting those facts contained in the F. I. R. in the station diary. So, the contention raised on behalf of the accused persons cannot at all be countenanced. ( 10 ) IT is then contended by Mr. Misra for the accused persons that the defence case is more probable then the prosecution case and as such, the learned Sessions Judge went wrong in believing the prosecution case. It is submitted that for transfers of some lands of Ghanshyam in favour of the deceased and his close relatives there was a quarrel between the family members of the deceased and Abhiram and when Ghanshyam expressed his intention to transfer his remaining lands in favour of the; sons of Abhiram, it was for he family members of the deceased to get an toyed with the sons of Abhiram and not vice versa. I am unable to perused myself to accept such submission because after the transfers by Jhanshyam in favour of Kanhai and his close relatives it was the sons of Abhiram who were more aggrieved. Coming to the merits of the defence case, it is necessary to examines the evidence of D. Ws. 1 and 2 who were respectively the wife of Ghanshyam and the then Ward Member of the village. Their evidence is found to be contradictory as to the place where the meeting was held, the number of Bhadralogs that attended the meeting and the place where the deceased fell down after receiving the blows. Further, it can hardly be believed that all the weapons allegedly held by the three sons of Kanhai should have accidentally hit their father Kanhai, as stated by the D. Ws. Under these circumstances, the learned Sessions Judge was perfectly justified in recording a finding that the prosecution case is more probable then the defence case. ( 11 ) IT is also contended by Mr. Misra for the accused persons that on the evidence on record it cannot be said that the accused persons constituted an unlawful assembly with any common object to commit an offence and as such, one of them cannot be vicariously liable for the act done by another. If there is an unlawful assembly within the meaning of section 141 I. P. C. and an offence is committed by one of the members of that assembly in prosecution of the common object of such assembly, or such as, the members of that assembly knew to be likely to be committed in prosecution of the common object, other members of the assembly are vicariously liable for the commission of the offence under section 149 I. P. C. , even though there was no commission of an offence by them. Similar view has been expressed by the apex court in several cases and to cite a few of them are Hanif v. State, Mannam Venkatdri v. The State of Andhra Pradesh, Bhajan Singh v. State of U. P. 4, Lalji v. State of U. P. , and Allauddin Mian v. State of Bihar ( 12 ) LET us apply the legal principles to the facts of the present case. It is the consistent evidence of P. Ws. It is the consistent evidence of P. Ws. 1 to 4 that even after the promise was held out by Ghanshyam to transfer his remaining lands in favour of the sons of Abhiram, the letters being not satisfied went inside the village basti and reappeared with their co-accused persons near their house. It is also their categorical evidence that at the time of their return near their house, they along with their co-accused persons were variously armed with deadly weapons i. e. Balams, Tenla and lathis and immediately after their arrival, they shouted to drag the deceased from inside the house. It is their further evidence that immediately after such shout, the sons of Abhiram went inside the house, dragged out the deceased to their outer verandah and assaulted him with Balamst and Tenta and when protests were raised, accused Sadananda, Purushottam, Panchanan an Bhaskar assaulted Manoranjan and Ghanshyam. All these facts establish beyond a shadow of doubt that all the accused persons had formed an unlawful assembly with the common object of assaulting the deceased and also to assault any other who would try to resist their action. While prosecuting such common object although only accused Hadibandhu, Nisakar and Ananda assaulted the deceased, their co-accused persons are vicariously liable for such assaults. Similarly, for the assaults on Manoranjan and Ghanshyam by accused Sadananda, Purushottam, Panchanan and Bhaskar their co- accused persons who did not assault them are also vicariously liable. ( 13 ) MR. Misra for the accused persons has invited my attention to the decision in S. P. Sinha - v. State of Maharashtra, the facts of which are completely different from the facts of the present case. In that case a big crowd assembled near the office of the deceased and of them only 6 to 8 persons forcibly entered into the office and assaulted the deceased resulting in no serious injury and when out of fear for his life the deceased left the office room to a nearby open field, the remaining members of the crowd surrounded the deceased and brutally assaulted him to death. The question arose whether for the death of the de ceased those 6 to 8 persons who did not go to the open field could be vicariously liable and it was held that for the act done by the unlawful assembly in the open field resulting in the death of the deceased, those 6 to 8 persons could not be vicariously liable in as much as they were not the members of that unlawful assembly, they having not gone to the open field at all. I am unable to comprehend how the accused persons in the present case can take advantage of the said decision since all of them were together present being variously armed when the deceased and the two injured persons were assaulted. It is, therefore, held that the contention raised by Mr. Misra cannot be sustained and that all the accused persons are responsible for the assaults on the deceased as well as on the two injured Manoranjan and Ghanshyam. ( 14 ) IT is then contended by Mr. Misra for the accused persons that the accused persons could not be convicted under section 323 read with sections 149 I. P. C. for the injuries sustained by Manoranjan and Ghanshyam because those two injured were not examined by the prosecution. In order to prove the injuries on any person, it is not always necessary to examine the injured. If the injury on the injured is otherwise proved, as has been done in this case, then the person causing the injury is liable to be convicted. ( 15 ) IN the result, I hold that the appeal is devoid of merit which is accordingly dismissed and the conviction and sentence passed by the learned Sessions Judge are hereby confirmed. Appeal dismissed. .