Judgment A.K.Prasad, J. 1. This appeal, at the behest of the sole appellant is directed against the judgment and order dated 16-2-1990 in S.T. No. 196 of 1985, which was tried analogous with S.T. No. 206 of 1986, passed by Sri D.N. Chakraverty, the then Additional Sessions Judge, Ist Court, Jamshedpur, whereby and whereunder the appellant has been convicted under Secs. 302 read with 149 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life. 2. Briefly stated, the prosecution case, as made out in the fardbeyan (Exhibit 3), is as under: On 21-8-1983, around 6.00 p.m., Binder Paswan (the deceased) Forest Guard, Nutandih Sub-beat Office, was returning in the company of Sailendra Kumar Singh (PW-2), another forest guard in Nutandih, Sub-beat Office, after doing marketing, from the village HAT. When on the way they reached in the middle of Nutandih forest, they saw the appellant, co-accused Naren Laguri and ten other named accused, variously armed with lathi and tangi in the Jungle. At their sight, Binder Paswan, the deceased, uttered that only yesterday, i.e., on Saturday, he had snatched the Tangi from them and today they have come with axes to fell tress, and hearing this, Naren Laguri (the co-accused) abused the deceased and exhorted his companions to kill him. Saying so, Naren Laguri caught the deceased by his hair and started to assault him. At the time of assault, Naren Laguri was saying that the deceased had struck a danda blow to him and had snatched the axe, and that he would kill him, whereupon all the accused-persons surrounded the deceased and forcibly took him towards the dense forest. Sailendra Kumar Singh (PW-2) attempted to rescue the deceased, but the accused-persons chased to assault him. Thereafter, Sailendra Kumar Singh fled for life and reached Nutandih Sub-beat Office and narrated about the occurrence to Bengali Singh, The Beat Officer, and the forest-guards, present there. During the night, a search for kidnapped forest-guard (Binder Paswan) was made by them, but in vain. The next day, around 11.00 a.m., Sailendra Kumar Singh (PW-2) visited the office of Sri V.N. Mishra, Range Officer (the informant) at Mango and informed him about the incident. Thereafter, the informant sent a written-report to Patamda Police Station for information and he deputed staff to search for Binder Paswan, the forest-guard. The next day, around 11.00 a.m., Sailendra Kumar Singh (PW-2) visited the office of Sri V.N. Mishra, Range Officer (the informant) at Mango and informed him about the incident. Thereafter, the informant sent a written-report to Patamda Police Station for information and he deputed staff to search for Binder Paswan, the forest-guard. In the morning, on 23-8-1983 the dead body of Binder Paswan with cut wounds by sharp weapon was spotted in Poonsa forest, whereupon Bengali Singh (PW-3), the forester, went to the informant and conveyed this fact to him in the early morning. The fardbeyan of the informant was recorded by the Police Officer at Mango Range Officer on 23-3-1983 at 7.30 p.m. On the basis of the fardbeyan (Exhibit 3), the present case came to be instituted, a formal First Information Report (Exhibit 4) was drawn up. The Police Officer commended investigation and held inquest over the dead body of Binder Paswan on 23-8-1983 between 12.30 to 1.00 p.m. He seized blood-stained clothes, blood-stained hair from near the dead body and other places in the Nutandih Protected Forest, a tangi with blood stains from the house of Naren Laguri, the co-accused on 23-8-1983, sent the dead body for post-mortem examination and on completion of investigation, charge-sheet was laid in Court against the accused-persons. 3. The main defence is of innocence and false implication. The further defence is the total denial of the alleged occurrence. 4. In support of its case, the prosecution has examined ten witnesses, Out of them, PW-8 (Vijoy Shankar Prasad), who has proved the postmortem examination report (Exhibit 2), PW-9 (Shambhu Nath Roy), who has proved the fardbeyan (Exhibit 3) and the formal First Information Report (Exhibit 4) and PW-10 (Shyamal Sarkar), who has proved the inquest-report (Exhibit 5) and the seizure lists in the pen of K.N. Trivedi, the then Officer-in-charge, Patamda Police Station, since retired, are the formal witnesses. 5. The defence, on the other hand, did not examine any witness. It may be worth-while to indicate here that previously five witnesses were examined on behalf of the prosecution, but as the appearance of one accused, namely, Biddu Manjhi, could be secured subsequently, their evidence were expunged and the fresh evidence of the prosecution was recorded. During the pendency of the trial, Rengo Manjhi, the co-accused, died and the further proceedings as against him was dropped. 6. During the pendency of the trial, Rengo Manjhi, the co-accused, died and the further proceedings as against him was dropped. 6. Ten accused faced the trail in ST No. 196 of 1985. Biddu Manjhi was the lone accused in ST No. 26 of 1986. On consideration of the evidence and the materials on record, the trial Court convicted the appellant and co-accused Naren Laguri under Secs. 302 read with 149 of the Indian Penal Code. The other nine co-accused were acquitted by giving benefit of doubted. Further, the trial Court acquitted all the accused of the charge under Secs. 201 read with 34 of the Indian Penal Code. The trial Court convicted the appellant under Secs. 302 read with 149 of the Indian Penal Code, mainly relying on the testimony of PW-2 that he had identified him amongst those who had kidnapped the deceased in the evening of 21-8-1983 ; that there was motive to suggest the involvement of the appellant in the crime and the dead body of the deceased with wounds was recovered in the morning of 23-8-1983 from the forest, and sentenced him, as stated above. It may be mentioned here that the Registry of this Court has given information that co-accused (Naren Laguri) has not preferred any appeal against his conviction and sentence. 7. The factum of murder of the deceased, is not in dispute. PW-8, Vijoy Shankar Prasad, a technician in the department of Forensic Medicine, M.G.M. Medical College, Jameshedpur, has proved the post-mortem report of the deceased in the pen of Dr. M.S. Ahmad, the then Tutor, Department of Forensic Medicine, M.G.M. Medical College, Jameshedpur, who had gone abroad and it was uncertain when he would return to In-ia. The post-mortem report (Exhibit 2) shows that on 24-8-1983, at 2 p.m. The doctor held autopsy on the dead body of Binder Paswan. which was highly de-composed, the scalp-hair was not present and he found the following ante-mortem wounds: Sharp cut injury front of neck, exposing and cutting all the structures of front of neck, with maggot present. Lacerated wound on left lower part of arm 4" x 1" with fracture of left radius and ulna. Lacerated wound on left palm 2" x 1". It further shows that the larynx arid trachea was ruptured. Lacerated wound on left lower part of arm 4" x 1" with fracture of left radius and ulna. Lacerated wound on left palm 2" x 1". It further shows that the larynx arid trachea was ruptured. He has opined therein that the cause of death was due to asphyxia, by cutting of trachea and shock was also a contributory factor. In the post-mortem report, he has further recorded the opinion that the time elapsed since death was between 3-4 days of the post-mortem examination. It fits in with the prosecution case that the death of the deceased was homicidal and it was caused some time after he was kidnapped in the evening of 21-8-1983. Post-mortem report is made by the doctor in ordinary course of business and as the doctor had gone abroad, his presence could not be secured within a reasonable time for evidence and would have caused undue delay in procuring his attendance. The postmortem report could be proved by PW-8, the technician acquainted with his hand-writing and it is admissible as substantive evidence (Ref: Udho Mahto V/s. The State of Bihar 1993(2) PLJR 133). Besides, the medical evidence, there is testimony of PWs 3 and 6 that there were wounds by sharp weapon on the person of the deceased. 8. It has now to be considered whether the appellant was instrumental in the murder of the deceased. There is not direct evidence on the murder of the deceased. The case rests on circumstantial evidence. PW-2 (Sailendra Kumar Singh) has testified to the effect that on the fateful evening he and the deceased were returning to Nutandih Sub-beat the place of their posting deputation, after doing marketing at Mango Hat, passing through Girua, and when they reached near Rahargora Basti, they came across 10-12 persons by the side of the Jungle, who were variously armed with lathi and tangi. He has further stated that on sighting them, the deceased uttered that only yesterday, he had forbidden them and still they had come again to fell trees from the forest, whereupon those persons started to threaten the deceased, they chased him (this witness) and they surrounded and forcibly took away the deceased inside the forest. He has further stated that he had identified the appellant and co-accused Naren Laguri amongst the culprits, who had kidnapped and taken away the deceased forcibly towards Nutandih forest. He has further stated that he had identified the appellant and co-accused Naren Laguri amongst the culprits, who had kidnapped and taken away the deceased forcibly towards Nutandih forest. He has further stated that he ran from the sort and reached Nutandih Sub-beat Office around 7.30 p.m. and narrated the occurrence to Bengali Singh, a Forester (PW-3), Lal Singh Sirka, another forester, Bhakhari Charan Mahanti, a forest-guard and some forest-watchers, who were present in the office. He has identified the appellant and the co-accused in Court, amongst the miscreants involved in the incidents. He identified the other accused by face, but stated that he had seen them while going on duty or returning from there. He did not specifically state in his evidence that the other accused had taken part in kidnapping of the deceased. PWs 1, 3, 5 and 6 have corroborated the testimony of PW-2 that on the fateful evening, around 7.00 p.m. PW-2 came running to Nutandih Beat Office and narrated the incident of Kidnapping of the deceased to them. PWs 1, 3 and 5 have deposed that PW-2 disclosed to them that these 12 persons who were detected illicitly felling trees in the forest had kidnapped the deceased and taken him forcibly inside the Nutandih forest PW-1 has deposed that he had submitted offence report for the illicit felling of the trees on 20-8-1983 and he had identified the appellant in Court as one of the offenders involved in it. PW-3 has stated that he had forwarded the offence report and he too identified the appellant amongst those whom he had seen felling the forest trees on 20-8-1983. 9. In spite of searching cross-examination, PW-2 is quite consistent in his evidence that the appellant too was involved in the forcible taking away of the deceased towards Nutandih forest. He has denied the defence suggestion that on 19-8-1983, he was selling forest wood to Punjabi Singh to which the appellant and co-accused Naren Laguri had protested and for this reason, the appellant and other accused have been falsely implicated by him. The defence has led no evidence to substantiate its case. The suggestion itself shows that PW-1 knew the appellant. So he could name and identify him in Court. It is true that PW-1 could not say about the colour of the clothes, worn by the deceased at the time of the occurrence. The defence has led no evidence to substantiate its case. The suggestion itself shows that PW-1 knew the appellant. So he could name and identify him in Court. It is true that PW-1 could not say about the colour of the clothes, worn by the deceased at the time of the occurrence. It is suffice to say that this is a minute detail and human memory fails with passage of time. There is no reason as to why PW-2 would falsely implicate the appellant. He is a natural witness to the incident of kidnaping of the deceased, since he was accompanying the deceased at that time. 10. A criticism has been made by the learned Counsel for the appellant that it has come in the cross-examination of PW-2 that while he was rushing from the place of occurrence to his offence, he had met Punjabi Singh on the way near the office and he had a talk with him. But Punjabi Singh has not been examined in this case and this throws doubt on the truthfulness of the prosecution case. The other PWs have corroborated the testimony of PW-2 that he had disclosed the incident to them and it is the quality and not quantity of the evidence that has to be considered in a criminal trial. Under the circumstance, the non-examination of Punjabi Singh does not adversely affect the prosecution case. 11. Learned Counsel for the appellant has urged that the earlier report regarding the alleged kidnapping of the deceased submitted by the informant to the Police Station on 22-8-1983 has not been brought on record and nor the informant has been examined in the case. The informant is not an eye-witness to the incident. Hence, his non-examination does not materially affect the prosecution case. The earlier report ought to have been brought on record. The learned A.P.P. has explained that earlier the informant was examined in the case and the earlier report was marked Exhibit, but the evidence was expugned on the ground that the evidence was recorded in absence of the absconding accused, whose attendance was secured subsequently. He has further explained that the case was instituted on the basis of the fardbeyan, Exhibit 3 and not the earlier report. It has not been suggested by the defence to the PWs that the name of the appellant did not find mention in the earlier report. He has further explained that the case was instituted on the basis of the fardbeyan, Exhibit 3 and not the earlier report. It has not been suggested by the defence to the PWs that the name of the appellant did not find mention in the earlier report. So in the given circumstances, the non-examination of the informant or failure to bring the earlier report does not adversely affect the prosecution case. There is sworn and trustworthy testimony of PW-2 that he had identified the appellant on the spot as one involved in kidnapping the deceased. 12. There is overwhelming evidence on record that in the morning of 23-8-1983 the dead body of the deceased was found in Boonsa forest in a de-composed state at a distance of 2-3 miles to the west of Nutandih forest office. The medical evidence shows that there were severe wounds on the person of the deceased. The medical evidence fits in with the prosecution case that after the deceased was kidnapped, he was done to death by taking him into the forest some time after the evening of 21-8-1983. 13. There is circumstantial evidence that the appellant was one of those who had kidnapped the deceased, taken him to the forest where the deceased was done to death. The appellant had motive for the murder of the deceased. It is not a case that the deceased was last seen in the company of some one else, after he was kidnapped. There is no explanation that the appellant had withdrawn from the group of the miscreants, after the deceased had been kidnapped and before he was done to death. Thus, there is complete chain of circumstantial evidence to lead to irresistible conclusion that the appellant was involved in the murder of the deceased. 14. A criticism has been made by the learned Counsel for the appellant that the Investigating officer has not been examined in the case, which materially affects the prosecution case. He has failed to point out that material contradiction has been taken on vital point the the cross-examination of the P.Ws. vis-a-vis their evidence in Court and statement made before the police. He has not been able to demonstrate that prejudice has been caused to the defence due to none-examination of the Investigating Officer. Hence, the non-examination of the Investigating Officer, in my considered view, does not adversely affect the prosecution case. 15. vis-a-vis their evidence in Court and statement made before the police. He has not been able to demonstrate that prejudice has been caused to the defence due to none-examination of the Investigating Officer. Hence, the non-examination of the Investigating Officer, in my considered view, does not adversely affect the prosecution case. 15. It is now to be considered as to what offence has been committed by the appellant. Learned Counsel for the appellant has contended that no overt-act of assault has been alleged against the appellant and out of 12 FIR named accused, one died during the pendency of the trial, while 9 others were acquitted and thus the number of the accused/culprits involved in the incident was reduced to less than 5 and the prosecution case that there was unlawful assembly disappeared, with the result that the appellant could not be convicted with the aid of Sec. 149 of the Indian Penal Code. 16. It is true that 12 accused were named in the First Information Report. Accordingly, they were charged under Secs. 302/149 of the Indian Penal Code. It is also true that in the First Information Report or in the charge, it is not indicated that some unknown persons were also involved in the incident. But, in the evidence of PW-2, it has come that there were 10-12 armed culprits, involved in the incident, out of whom he could identify the appellant and co-accused Naren Laguri. Thus, there is direct/circumstantial evidence to show that the offence was committed by the appellant along with Naren Laguri and 8-10 un-known persons and they were instrumental in causing the death of the deceased. The matter would have been different, if the trial would have proceeded throughout on the basis that the First Information Report named accused and none else was involved in the incident or there would have no evidence to suggest that some other unknown persons had taken part in it. So, in the circumstances of the case, it was permissible in the law to convict the appellant with the aid of Sec. 149 of the Indian Penal Code for the murder of the deceased. 17. There is specific evidence of PW-2 that the appellant was member of the group, which surrounded and forcibly took away the deceased into the forest, whereafter his dead body with wounds was found. 17. There is specific evidence of PW-2 that the appellant was member of the group, which surrounded and forcibly took away the deceased into the forest, whereafter his dead body with wounds was found. That apart, it is not necessary that overt-act/offence should have been actually committed by every member of the unlawful assembly to make him liable under Sec. 149 of the Indian Penal Code. All that is required is that he should be member of unlawful assembly and share common object of such assembly or had knowledge that the offence was likely to be committed by some other member(s) of the assembly in prosecution of the common object (Re : -- : Masalti V/s. State of Uttar Pradesh decision of four Hon ble Judges.) The above contentions of the learned Counsel for the appellant has no substance. 18. For the reasons assigned above, I agree with the finding of the trial Court that the charge under Secs. 302/149 of the Indian Penal Code has been substantiated beyond shadow of reasonable doubt against the appellant. 19. In the result, there is no merit in this appeal and the same is accordingly dismissed. The impugned judgment and order of conviction and sentence passed against the appellant by the trial Court are affirmed. The appellant is on bail. He is directed to surrender to his bail-bond forthwith in the Court below to serve out the remaining part of his sentence, failing which the Court below shall take all steps for securing his attendance.