JUDGMENT : P.K. Misra, J. - The Appellants have been convicted under Sections 302/149,307/149 and 148, Indian Penal Code (in short, the "I.P.C."), and sentenced to undergo imprisonment for life under Sections 302/149, I.P.C. and three years' religious imprisonments each under Sections 307/149 and 148, I.P.C. Since the Appellants were found guilty under Sections 307/149, I.P.C., the trial Court did not think it fit to convict then also under Sections 324/149, I.P.C. for having assaulted P.W. 1 and one Sanatan Das. 2. Originally. 21 accused persons were charged under Sections 302/149, 307/149 and 148, I.P.C. for having caused the death of one Sadananda Das and assaulted P.W. 1 and Sanatan Das. Accused Kanhu Charan Behera (acquitted) was also charged under Sections 302/307/324/114, I.P.C. for abetment. Appellants No. 12, Hemanta Nayak was specifically charged u/s 324, I.P.C. for having assaulted P.W.l, but since he was found guilty under Sections 307/ 149, the trial Court did not think it proper to find him guilty under Sections 324/149 or Section 324, I.P.C. Out of the 21 accused persons, the trial Court has not recorded any specific finding of guilt or innocence in respect of accused Krushna Mohanty. However, it is assumed that he has not been found guilty as he is not one of the convicted persons. Similarly, the trial Court in one part of the judgment found that there was no material against Banshidhar Behera (appellant No. 2), but in a subsequent paragraph has convicted said Banshidhar Behera u/s 302/149, I.P.C. and other offences. To say the least, the trial Court judgment on this aspect is definitely: slipshod which was not expected of an experienced judicial officer. 3. The 'occurrence admittedly took place on 31.12.1982. The F.I.R. was lodged by P.W. 5. It was alleged therein that on the date of incident, there was an altercation between P.W. 1 and deceased Sadananda on one hand and Jagabandhu Samal (examined as P.W. 1) on the other near Motto Hat in connection with occupation/ construction of shed in the market area. It is alleged in the F.I.R. that at that time when Jagabandhu Samal suddenly got up, his head struck against a bamboo protruding from the thatch and he sustained some injury. It is alleged in the F.I.R. that at that time when Jagabandhu Samal suddenly got up, his head struck against a bamboo protruding from the thatch and he sustained some injury. Subsequently while P.W. 1, P.W5, Sadananda (deceased) and one Sanatan Das proceeded towards their village, near Balabhadrapur Sasan, they found that the accused persons being armed with lathis, tent set cetera were coming. Being afraid, the deceased and his companions ran towards the village. Two informants went inside the house of one Sikhar Bal, whereas the other three concealed themselves inside the house of Nilakantha Rath (P.W.S). The house was surrounded by the accused persons, who dealt blows on the door and wall of the house and some of them entered inside the house. Accused Panchanan Bal (appellant No. 14) and Subash Samal (appellant No. II dragged the three persons and assaulted them. At that time one of the accused persons shouted that police people were coming and consequently all the accused persons fled away. P.W. 5. the informant, who saw the incident through an opening in the door-leaf of the house of Sikhar Bal lodged the report before the police which was treated as F.I.R. Ext. 1. Apart from P.W. 1, who was injured in the incident and P.W. 5, the informant, the occurrence was seeing by some other persons including P. Ws. 2, 3 and 4. P. Ws. and 8 who are the owners of the houses wherein the deceased and his companions had taken refuse have also spoken about the occurrence, but except one or two accused persons they have not been able to identify the other accused persons. P. Ws. 9 and 10 were the doctors. P.W. 9 had treated the injured (P.W1), injured Sanatan not examined and the deceased. P.W. 10 conducted post-mortem. P. Ws. 15 and 16 are the Investigating Officers. Other witnesses are formal witnesses. P. Ws. 1 and 5 are related to deceases Sadananda. 4. The accused persons in their statements have given a different picture of the incident. According to them the allegation that the accused persons being armed followed the deceased and his companions to Balabhadrapur Sasan in incorrect. 15 and 16 are the Investigating Officers. Other witnesses are formal witnesses. P. Ws. 1 and 5 are related to deceases Sadananda. 4. The accused persons in their statements have given a different picture of the incident. According to them the allegation that the accused persons being armed followed the deceased and his companions to Balabhadrapur Sasan in incorrect. According to them, in fact, some incident took place in the Motto Hat itself where P.W. 1was assaulted and in order to save himself he had brandished a "Bahunga" as a result of which the deceased, P.W. 1 and Sanatan were injured. In support of such plea, the accused persons apart from examining P.W. 1have examined nine other witnesses. It may be indicated that Appellant No. 11 Subash Samal is the son of P.W. 1, Jagabandhu Samal. It is claimed by them that since they belong to communist party and Sadananda Das (deceased) and his supporters belong to Congress Party, they have been falsely imp heated in the occurrence. 5. The trial Court relying upon the evidence of P. Ws. 1, 2, 3, 4, 5, 7 and 8 found that there was an unlawful assembly wherein the accused persons were armed with dangerous weapons such as tentas, lathis etc. and the common object of the assembly was to commit murder of Sadananda Das. It has been found that the accused persons also had assaulted P.W. 1 as well as Sanatan Das. 6. Two sets of lawyers have appeared for the Appellants. The arguments advanced by the learned Counsels are almost similar. It has been submitted by the learned Counsels that the occurrence itself had not taken place in the manner indicated by the prosecution witnesses and it had taken place in Motto and not in Balabhadrapur Sasan. In support of such contention, they have submitted that the evidence of the defense witnesses on this score should not have been disbelieved. Moreover, it has been contended that no blood-stained earth having been seized from the alleged place of occurrence, the defense version is much more probabilised. The defense witnesses have come out with a story that the deceases, P.W. 1 and Sanatan were injured due to brandishing of 'Bahunga' by Jagabandhu Samal. Moreover, it has been contended that no blood-stained earth having been seized from the alleged place of occurrence, the defense version is much more probabilised. The defense witnesses have come out with a story that the deceases, P.W. 1 and Sanatan were injured due to brandishing of 'Bahunga' by Jagabandhu Samal. P.W.9, the doctor, who had treated P.W. 1 and injured Sanatan and also had examined the deceased has stated that the injuries found on the deceases and P.W. 1 and Sanatan were not possible due to brandishing of 'Bahunga'. P.W. 1has specifically stated that a 'tenta' was pierced into his check by Appellant No. 12. Such evidence has received ample corroboration from the evidence of the doctor. It is true that no blood-stained earth has been seized from the place where the occurrence had allegedly taken place. However, the Investigating Officer in his evidence has explained that due to the melee, blood-stained earth was not available from the place of occurrence. Though P.W. 1 and P.W. 5 are related to the deceases, the other eye witnesses such as P. Ws. 2, 3, 4, 7 and 8 are independent persons. Though P. Ws. 7 and 8 have not been able to specifically identify most of the accused persons, their description regarding the incident itself appears to be cogent. Prosecution witnesses have also explained about the injuries sustained by P.W. 1 Keeping in view the nature of injuries sustained by the deceases, P.W. 1 as well as Sanatan, it is not possible to accept the defense version regarding the incident. 7. The learned Counsels have submitted that the ocular evidence of the witnesses did not receive support from the medical evidence. On going through the evidence of the prosecution witnesses as well as the two doctors, though there appears to be some discrepancy, it cannot be said that the discrepancies are such as to discard the entire prosecution version as false. The evidence of P. Ws. 9 and 10 has generally corroborated the prosecution story. 8. The learned Counsels for the Appellants also pointed out about the various discrepancies in the evidence of the various prosecution witnesses. In an occurrence of such magnitude, where a number of accuses persons were involved, some minor discrepancies here and there relating to details of the incident are bound to occur for which it is not possible to discard the entire prosecution case. 9. Mr. In an occurrence of such magnitude, where a number of accuses persons were involved, some minor discrepancies here and there relating to details of the incident are bound to occur for which it is not possible to discard the entire prosecution case. 9. Mr. Debasis Panda, counsel appearing for some of the Appellants, has submitted that Sanatan who was allegedly injured in the incident has not been examined and as such adverse inference should have been drawn against the prosecution. It appears from the evidence on record particularly that of P.W. 1 that Sanatan was not available and had gone away somewhere. Such evidence has not been challenged in cross-examination. Thus, the prosecution has given sufficient explanation for non-examination of Sanatan. Moreover, even the defense witnesses have also admitted that Sanatan had sustained injuries though their description relating to the occurrence was different. Blood- examination of Sanatan is thus immaterial in the facts and circumstances of the present case. 10. The learned Counsel also submitted that the written report submitted by P.W. 5 cannot be accepted in view of the fact that the scribe of the F.I.R. has not been examined. Law is well settled that F.I.R. is not substantive evidence, but can corroborate or contradict the maker thereof. Even ignoring the F.I.R., the prosecution case, as established through the evidence of P. Ws 1 to 5 and 7 and 8, as corroborated by medical evidence can successfully stand the scrutiny of the appellate Court. 11. The learned Counsel for the Appellants also submitted that there was no unlawful assembly. The mere fact that a large number of persons were variously armed with dangerous weapons, such as, tenta, lathi etc., and came together, is itself indicative of the fact that there was an unlawful assembly. Keeping in view the manner of assault particularly on Sadananda, there cannot be any doubt that the common object of the assembly was to finish Sadananda who was a leader of the rival political party. 12. It is, of course, true that several defense witnesses have been examined. However, it appears that the story propounded by the defense witnesses was not suggested to most of the prosecution witnesses except a few like P.W. 1. 12. It is, of course, true that several defense witnesses have been examined. However, it appears that the story propounded by the defense witnesses was not suggested to most of the prosecution witnesses except a few like P.W. 1. As already indicated, the story given out by the defense witnesses does not explain the numerous injuries sustained by the deceases, injured Sanatan and P.W. 1 and is not supported by the post-mortem report or the medical evidence on record. On the other hand, the story given by the prosecution witnesses is probable and has also explained the injury sustained by P.W. 1. Having regard to all these aspects, there cannot be any doubt that the accused persons constituted an unlawful assembly and in pursuance of the common object of the assembly assaulted deceases Sadananda as well as two others. 13. The question is, as to whether all the Appellants found guilty can be said to be members of the unlawful assemble. On direful perusal of the materials on record, it appears that the conviction of Appellants 1, 2, 3 arid 15 cannot be sustained for the reasons indicated below. The learned Counsel for the Appellants has rightly criticized the analysis of the trial Court so far as Appellants No. 2 Banshidhar Behera is concerned. It appears from paragraph-33 of the judgment that the trial Court had recorded the following finding: In the evidence, the eye witnesses while naming the accused persons do not name the accused persons viz. Narahari Das, Bijay Behera, Bipra Parida, Sanatan Parida, Banshidhar Behera and the prosecution has fairly conceded that the prosecution has not been able to bring home the charge against them. In spite of such fining in paragraph- 33, in paragraph- 35 of the judgment, the trial Court has concluded: ... On a careful scrutiny of the evidence on record, I find that the prosecution has been able to prove its case against accused Katia Panda, Sub ash Samal, Mitua Samal, Hemanta Nayak, Prasanta alias Babu Mallik, Dukhi Bal, Gangadhar Behera, Nanda Nayak, Bhaban Nayak, Satrughna, Chandra Sekhar Panda, Satrughna Samal, Ramakanta Mishra, Banshidhar Behera and Batakrushna Nayak for committing the offence of rioting and committing the murder of Sadananda Das and for attempting to kill P.W. 1 and Sadananda Das in furtherance of their common object being members of an unlawful assembly, being armed with deadly weapons. Thus, it is apparent that the findings of the trial Court so far as Banshidhar Behera is concerned are self- contradictory. On going through the materials on record, it appears that except being implicated in the F.I.R., Banshidhar Behera has not been specifically implicated by any of the witnesses. Thus, the latter part of the judgment convicting Banshidhar Behera appears to be a careless mistake on the part of the trial Court. 14. So far as Appellant No. 1 Satrughna Samal is concerned, though he has been named in the F.I.R., he has not been specifically implicated by any of the prosecution witnesses including the informant himself. Law is well settled that F.I.R. cannot be considered to be a substantive piece of evidence and can be utilized for the purpose of corroborating or contradicting the maker thereof. The statements of witnesses in an omnibus manner implicating all the accused persons in a general way cannot be considered as sufficient to find the guilt of Appellant No. 1, Satrughna Sama1. 15. So far as Appellant No. 3, Satrughna Behera is concerned, he has not been specifically implicated by any of the eye witnesses save and except P.W. 2, who claimed that Banshidhar Behera was one of the assailants of Sanatan. Sanatan himself has not been examined. The statement of P.W. 2 implicating Appellant No. 3 has not received corroboration from any other prosecution witness. That apart, it appears that the trial Court while examining Appellant No. 3 u/s 313, Code of Criminal Procedure, had not specifically put these incriminatory circumstances to the accused person. In fact, a perusal of the 323, Code of Criminal Procedure statement of Appellant No. 3 as well as of Appellants 1 and 2 indicates that all the questions put to the aforesaid accused persons were based on the allegations made in the F.I.R. Since F.I.R. itself cannot be considered to be substantive evidence, and since the informant has not implicated Appellant No. 3, it would be unsafe to uphold the conviction of Appellant No. 3 merely on the statement of P.W. 2, particularly when Appellant No. 3 has not been asked about such incriminatory circumstance. 16. So far as Appellant No. 15, Ramakanta Mishra is concerned, he has been specifically implicated by P. Ws. 2 and 4, but other witnesses have not specifically implicated him. 16. So far as Appellant No. 15, Ramakanta Mishra is concerned, he has been specifically implicated by P. Ws. 2 and 4, but other witnesses have not specifically implicated him. According to the statement of P.W. 2, Appellant No. 15 had assaulted P.W. 1 in his evidence has not stated that he was assaulted by Appellant No. 15. Moreover, P.W. 2 in his earlier statement before the I.O had not stated about any assault by Appellant No. 15 either on P.W. 1 or on Sanatan and as such the omission being material omission amounts to a contradiction. P.W. 4 has named Appellant No. 15 in a general manner. Since the evidence of P.W. 2 on this aspect is not acceptable, it would be unsafe to convict Appellant No. 15 on the basis of residuary evidence of P.W. 4 in the shape of a general statement. 17. So far as other Appellants are concerned, it appears that their involvement has been proved by most of the witnesses. It appears from the evidence that such Appellants were armed and had also participated in the occurrence. It cannot be said that anyone of such other Appellants was mere bystander. As such their conviction u/s 302/149, I.P.C. appears to be correct. 18. The trial Court has convicted the Appellants u/s 307/149, I.P.C. for the assault on Sanatan as well as on P.W.l. Keeping in view the manner of assault on P.W. 1 and Sanatan, it cannot be said that an offence u/s 307/149, I.P.C. had been established. However, it is evident that an offence u/s 324/ 149, I.P.C. had been committed by the accused persons. As a matter of fact, the accused persons were also charged u/s 324/ 149, I.P.C. for such assault, but the trial Court did not held them guilty because they were convicted u/s 307/149, I.P.C.. The conviction u/s 307/149 is altered to one u/s 324/149, I.P.C. so far as the Appellants are concerned (except, of course, Appellants 1, 2, 3 and 15, who are acquitted of all the charges). However, the sentence of three years u/s 307/149 is altered to one year's rigorous imprisonment u/s 324/149, I.P.C.. Since these Appellants have been found guilty u/s 302/ 149, I.P.C. and their imprisonment for life is upheld, such reduction in sentence is immaterial as all the sentences have been directed to run concurrently. 19. However, the sentence of three years u/s 307/149 is altered to one year's rigorous imprisonment u/s 324/149, I.P.C.. Since these Appellants have been found guilty u/s 302/ 149, I.P.C. and their imprisonment for life is upheld, such reduction in sentence is immaterial as all the sentences have been directed to run concurrently. 19. In the result, the appeal is allowed in part. Appellants 1, 2, 3, and 15 are acquitted. The order of conviction and sentence in respect of other Appellants' u/s 302/149 and Section 148, I.P.C. is sustained and the conviction and sentence u/s 307/149 is altered to one year's rigorous imprisonment u/s 324/149 is altered to one year's rigorous imprisonment u/s 324/149, I.P.C.. The sentences are to run concurrently. 20. As already indicated, the trial Court judgment is silent about one Krushna Mohanty who had been arraigned as accused No. 17 in the trial Court. No specific finding has been recorded. It is evident that after the judgment, Krishna Mohanty has not been apprehended obviously under the assumption that he is not guilty. On perusal of the record, it appears that the materials against Krushna Mohanty are not very serious. Therefore, it must be deemed that Krushna Mohanty had been acquitted by the trial Court. Final Result : Allowed