JUDGMENT : P.K. Misra, J. - The three petitioners have been convicted u/s 307/149, Indian Penal Code, and sentenced to undergo R.I. for three years and to pay a fine of Rs. 100/-, in default, to undergo R.I. for one month. The three petitioners along with three other accused persons were charged under Sections 147, 148, 307/149, Indian Penal Code, the trial Court convicted the three petitioners u/s 307/149 and acquitted the other three of all the charges and sentenced the convicted persons to three years' rigorous imprisonment and a fine of Rs. 100/-, in default, to undergo rigorous imprisonment for three months. In appeal, while confirming the decision, the appellate court has merely modified the default sentence. 2. As per the prosecution case, in the evening of 5.7.1991, Bibhisan Tanti (P.W.5), the injured, and Chandrakanta Tanti (P.W.3). a co-villager, had gone to the house of P.W.2 to collect their wages. While they were returning, petitioner No. 1 accosted them. At that time petitioner No. 2 came there with Thenga and dealt blow on the right side head of P.W.5. Petitioner No. 1 assaulted on back of the injured with another Thenga and thereafter the injured was also assaulted by petitioner No. 3. After the injured fell down, all the accused persons indiscriminately assaulted him. 3. The plea of the accused persons was one of denial. 4. Relying upon the evidence of P.W. 5 as corroborated by the eyewitness P.W. 3 and the evidence of the doctor (P.W.8), the trial Court believed the occurrence. However, since the other three accused persons were implicated in a general manner, the trial Court acquitted them while convicting the petitioner u/s 307/149, Indian Penal Code. In appeal, on an independent assessment of the evidence, the appellate court has confirmed the findings of the trial Court. 5. I this revision, it has been contended on behalf of the petitioners that the lodging of F.I.R. it self is shrouded in mystery. It is contended that as per the evidence of P.W.I, he reported the matter orally to the Officer-in-charge, Kinjirkela P.S. on 6.7.1991 at 8 A.M. The learned counsel has placed reliance upon the evidence of P.W. 8, the doctor, who stated that he had sent a man to report the matter at the police station. It is contended that as per the evidence of P.W.I, he reported the matter orally to the Officer-in-charge, Kinjirkela P.S. on 6.7.1991 at 8 A.M. The learned counsel has placed reliance upon the evidence of P.W. 8, the doctor, who stated that he had sent a man to report the matter at the police station. On the other hand, P.W. 11, the Officer-in-charge, has stated that written report was received from P.W. 1 and no report had been received from any person sent by the doctor. P.W. 8, the doctor, is not in a position to state about the name of the person who was allegedly sent for lodging report before the police station. Even assuming that P.W. 8 had sent such report, the report lodged by P.W. 1, cannot be treated as F.I.R. In the present case, F.I.R. has been lodged by P.W. 1 who is not an eye-witness to the occurrence had has only the effect of setting the law in motion. Ordinarily, an F.I.R. can be used for the purpose of corroborating or contradicting the maker thereof. In the present case, the order of conviction is based on the evidence of P.W. 5, the injured himself, as corroborated by P.W.3 the eye-witness, and the evidence of P.W. 8, the doctor, regarding the number and nature of injuries. Even assuming that matter before the police, in the facts and circumstances of the present case, non-production or non-recording of such information does not vitiate the prosecution case. 6. While on the question of F.I.R it has also been submitted on behalf of the petitioners that there has been delay in lodging the FIR and further delayin sending the F.I.R. to the Court of the Sub-Divisional Judicial Magistrate. 6. While on the question of F.I.R it has also been submitted on behalf of the petitioners that there has been delay in lodging the FIR and further delayin sending the F.I.R. to the Court of the Sub-Divisional Judicial Magistrate. The occurrence took place at about 7 P.M on 5.7.1991 whereas the F.I.R; was lodged on 6.7.1991 at 8 A.M. P.W. I has, however, explained that Since he was pre-occupied with the question of treatment of his son who had sustained about 14 to 15 injuries, most of which Were on the head, he could not lodge the report on the very same day This explanation of P.W. I has been accepted by both the Courts below and in exercise of revisional jurisdiction, I do not find any justification to, lake a different view of the matter It is evident from the evidence of P.W 5, the injured as well as the evidence of the doctor, that the injured remained unconscious during the night and was in a position to talk the next day. Even assuming that there has been some delay in lodging the F.I.R. it is not possible to discard the entire prosecution case on that score. It is true that: the F.I.R. though lodged on 6.7.1991 was received in the Court of the Sub-Divisional Judicial Magistrate on 8.7.1991. However, on going through the evidence of P.W. 1, I find that no suggestion has been made to P.W. 1 that, in fact, the report by P.W.I had not been lodged at 8 A.M. on 6,7.1991.It may be that due to negligence or ignorance, the Officer-in charge had failed to send the F.I.R. promptly to the Court of the Sub-Divisional Judicial Magistrate. However, since the prosecution case is amply proved, through the evidence of P.Ws. 5 and 3 and no corroboration is necessary from the F.I.R. to sustain the prosecution case. In the facts and circumstances of the present case, the delay in sending the F.I.R. to the Court of the Sub-Divisional Judicial Magistrate is not very . 7. It is contended by the learned counsel for the petitioners that though in the bed-head ticket it is mentioned that there are 14 injuries, the doctor in his injury report has indicated about 15 injuries. This discrepancy is too minor to discard the report of the doctor regarding the nature and number of injuries sustained by the injured. 8. 7. It is contended by the learned counsel for the petitioners that though in the bed-head ticket it is mentioned that there are 14 injuries, the doctor in his injury report has indicated about 15 injuries. This discrepancy is too minor to discard the report of the doctor regarding the nature and number of injuries sustained by the injured. 8. It was also contended that there was some enmity between the accused persons and the injured and the eye-witness P.W. 3 and as such the prosecution case should be discarded. Enmity is a double-edged weapon. The injured had sustained about 14 to 15 injuries some of which were quite grievous in nature. Even assuming that there was some enmity between the injured and the accused persons, there is no reason for him to falsely implicate the three petitioners and let off the real culprits. Both the Courts below have carefully assessed the evidence of P.Ws. 5 and 3 and I find no reasonable basis to differ from their findings while exercising revisional power. It is also pointed out that there are certain discrepancies in the evidence of the witnesses specially the injured and the eye-witness. However, both the Courts below have scanned the evidence in proper perspective and I do not find any justifiable reason to re-assess the oral evidence at this stage. 9. The trial Court did not record any specific finding as to whether five or more persons constituted an unlawful assembly. In fact, three of the accused persons out of six charged in the trial were acquitted. If the said three accused persons were acquitted on the ground that they were not members of the unlawful assembly, it cannot be fathomed as to how the three other accused persons could be convicted by taking recourse to Section 149, Indian Penal Code, as the number of accused persons involved in the crime is less than five. It seems that the trial Court and also the appellate Court have lost sight of this elementary principle. Since Section 149, Indian Penal Code. was not applicable, the Courts below should have tried to find out as to whether the three other accused persons had any common intention so that all the three could be convicted u/s 307/34, Indian Penal Code. Since Section 149, Indian Penal Code. was not applicable, the Courts below should have tried to find out as to whether the three other accused persons had any common intention so that all the three could be convicted u/s 307/34, Indian Penal Code. Otherwise, it was the duty of the Courts below to find out about the individual liability of each of the convicted persons. On going through the materials on record and considering the manner of assault, it is quite evident that the assault took place in furtherance of the common intention of the three convicted persons and as such the conviction u/s 307/149 is altered to one u/s 307/34, Indian Penal Code. 10. In the result, I do not find any merit in this revision which is accordingly dismissed. Final Result : Dismissed