JUDGMENT : Gautam Kumar Choudhary, J. 1. Since both the appeals arise out of judgment of conviction and sentence under Sections 302/34 and 148 of the IPC passed in Sessions Trial No. 261 of 2001 / 107 of 2002, they have been heard together and will be disposed of by the common judgment. 2. Informant is the brother of the deceased. As per the FIR, on 30.03.1987, the informant-Ludu Baski had gone to attend the marriage ceremony in the house of his co-villager- Jitan. At around 10:00 p.m. on hulla, he came out of the house and rushed towards his house. He saw that, (i) Sunu Lala Murmu (ii) Sitaram Murmu (iii) Guna Murmu (iv) Sinan Murmu (v) Kakam Murmu (vi) Surun Murmu (vii) Dabu Murmu (viii) Dhari Murmu (ix) Shiv Lal Murmu (x) Sona Murmu (xi) Kamal Murmu were indiscriminately assaulting Pithu Baski with lathi and iron rod. On hulla, when the villagers started gathering there, the accused persons fled away. It is claimed that the accused persons were identified in the light of lantern. The genesis of offence has been stated to be land dispute. Pithu Baski sustained fatal injury and died on spot. 3. On the basis of the fardbeyan , Nala P.S. Case No.32/87 was registered under Sections 148, 149 and 302 of the IPC against all the eleven named accused persons. After investigation, charge sheet was submitted and all the eleven accused persons were put on trial under Sections 148 and 302/34 of the IPC. Two of the accused namely Kakam Murmu and Shiv Lal Murmu died during trial. Accused persons facing trial were convicted by the learned trial Court. 4. Altogether nine witnesses have been examined on behalf of prosecution and the relevant documents including post-mortem report of deceased- Pithu Baski (Exhibit 1), injury report of Wakil Marandi (P.W. 3) has been exhibited as Exhibit 2. 5. It is argued by the learned counsel on behalf of the appellants that charge has been framed under Section 34 of the IPC, and to prove the charge, it was necessary that accused should have participated in the offence in furtherance of common intention. Mere presence at the place of occurrence is not sufficient to attract vicarious liability under Section 34 of the IPC. Mere presence at the place of occurrence is not sufficient to attract vicarious liability under Section 34 of the IPC. It is further argued that the incidence took place on the spur of moment and therefore, on the facts of the Section 149 or 34 of the IPC will not apply. 6. Learned senior counsel representing the appellants submits that the fardbeyan which forms the basis of the F.I.R. is hit by Section 162 Cr.P.C. As per him, the informant (P.W.-7) at para-5 he had stated that on that night itself when the incident had occurred, he had gone to the Police Station and informed the entire matter to the police, but surprisingly his initial statement has not been made the basis of the F.I.R. F.I.R. is based on fardbeyan, which was recorded on the next date at 12:00 hours. He submits that since the Investigating Officer has not been examined in this case, the defence has been prejudiced as what was the first correct version narrated to the police by the informant could not be brought to the notice of the Court during trial. It is further submitted that the informant in his fardbeyan claims to be an eye witness, but if his evidence is scrutinized, it would be clear that he is not an eye witness to the said occurrence, as he admits that he reached the place of occurrence when the assault had already taken place and some of the named accused were fleeing from the place of occurrence. P.W. 1 who is the son of the deceased also cannot be said to be the eye witness as in the F.I.R., the informant has stated that this P.W. 1 reached the place of occurrence after him which means that P.W. 1 could not have seen the occurrence at all, whereas P.W. 1 in his evidence has transposed himself to be an eye witness. It is argued that this discrepancy was fatal for the prosecution. P.W. 3, who himself was injured and his injury report has been exhibited as Exhibit 2 gives a different story. He stated that he was also assaulted but once the assault started, he fled from the place of occurrence. 7. It is further submitted that the fardbeyan has also not been exhibited. P.W. 3, who himself was injured and his injury report has been exhibited as Exhibit 2 gives a different story. He stated that he was also assaulted but once the assault started, he fled from the place of occurrence. 7. It is further submitted that the fardbeyan has also not been exhibited. Learned senior counsel further submits that the injury report of P.W. 3 and the post mortem report were exhibited by P.W. 9 who is a compounder of the hospital. Those documents were marked as Exhibits with objection. Non-examination of the Doctor who had conducted the post-mortem and had treated the injured, is fatal to prosecution and has caused prejudice to the defence. 8. Per contra, learned counsel representing the State submit that P.W.-1, P.W.-2, P.W.-3 and P.W.-7 are the eye witnesses who have seen the assault. It is only the formal F.I.R. which was exhibited. The medical evidence from the post mortem report clearly suggests that multiple blows were given on the person of the deceased, as numerous injuries were noted on the body which is evident from the post-mortem report itself. The testimony of P.W.-3 being an injured witness, has got credence and should be kept at a higher pedestal. So far as the first information is concerned, he submits that each and every information given to the police cannot be construed to be the First Information Report. In this case, First Information Report was based on the fardbeyan recorded in the village itself. On these grounds, learned A.P.P. prays that these appeals may be dismissed. FINDING 9. FIR in any case is the document which sets the law into motion and therefore, its value cannot be underestimated. Prompt FIR and its dispatch to the Magistrate under Section 157 of the Cr.P.C. ensures an unadulterated version of the prosecution case. Any delay gives rise to possibility of embellishment which may be a product of afterthought. [See (1972) 3 SCC 393 ]. While considering the delay attending the institution of case, background of the informant and the overall facts and circumstance of a case cannot be overlooked. 10. In the present case, the incidence took place on 30.03.1987 at night whereas the case was lodged on 31.03.1987 without any delay. [See (1972) 3 SCC 393 ]. While considering the delay attending the institution of case, background of the informant and the overall facts and circumstance of a case cannot be overlooked. 10. In the present case, the incidence took place on 30.03.1987 at night whereas the case was lodged on 31.03.1987 without any delay. From the fardbeyan itself, it is evident that the informant was a villager who had put his LTI and he has stated in para 5 that police station had been approached and informed about the incidence. Failure on the part of the police to register the case, cannot be attributed to the laches on the part of the informant. Further, since the information was not recorded and the FIR was not drawn, therefore, the fardbeyan recorded on 31.03.1987, cannot be said to be second FIR so as to hit by Section 162 of the Cr.P.C. 11. Homicidal death of Pithu Baski, is established consistently by oral evidence of P.W. 1, P.W. 2, P.W. 3 and P.W. 7. Although the Autopsy Surgeon has not been examined, but the post-mortem examination report has been formally proved and marked as Exhibit 1. Where the maker of a document is not available, the same can be proved under Section 47 of the Evidence Act, by one who is acquainted with his handwriting. It can be also be proved in terms of Section 32(2) of the Evidence Act, when it was made in the ordinary course of business. Any Medico-legal examination report has two parts of it. First is the objective finding with regard to type of injuries as noted on external physical examination and those which is found on dissection. Second is the subjective opinion given by the Doctor based on the objective findings. Depending on the facts of a case, opinion can be about the nature of injury or with regard to cause of death. With regard to the first part there cannot be any plea of prejudice for non-examination of the Doctor, as it relates to the records of the objective finding. Non-examination of the Doctor can prejudice the defence with regard to his opinion, on the nature of injury or cause of death, if it is in dispute. Where it is not disputed, non-examination cannot prese be a factor to disbelieve the prosecution case. 12. Non-examination of the Doctor can prejudice the defence with regard to his opinion, on the nature of injury or cause of death, if it is in dispute. Where it is not disputed, non-examination cannot prese be a factor to disbelieve the prosecution case. 12. As per the post-mortem report, the whole body was full of marks of assault by heavy, hard blunt substance (seems to be iron rod). Fractures of right leg bones, nasal bone was present. Very extensive fracture wound over vertex of head. Cause of death was inherent in the very type of injuries found on the body. The ante mortem injuries noted in the post-mortem examination report are as under:- External Injury I. The whole body full of marks of assault by heavy, hard blunt substance (which seems to be iron rod). This mark is more prominent over precordial area of chest, head, neck and back of trunk. II. Body is hugely swollen, blocks of big size over whole body found. III. Fracture of right leg bones and nasal bone present. IV. Very extensive lacerated wound over vertex of head. V. Both nostrils full of blood and blood clots. Internal Injury A. CNS- blood and blood clots found in cranial cavity. B. Chest- tear of anterior walls of the heart seen and whole chest cavity full of blood and blood clots. These injuries were sufficient to cause death is manifest from it. 13. P.W. 3 is an injured witness and his injury has been proved as Exhibit 2. It has been deposed by him that all the accused started conjointly assaulting the deceased with lathi and rod. This witness was struck by Sonu Lal Murmu with a rod. He consequently fled away from the place of occurrence. I do not find any inconsistency between deposition of this witness and informant (P.W. 7). Informant (P.W. 7) has deposed that while he was in the house of Jitan in connection with a marriage ceremony, he heard the hulla. When he went towards the place of occurrence, he saw the appellants fleeing from there. From this, it is evident that he has not seen the actual incidence but was a witness to event that followed immediately after the incidence. 14. P.W. 1, P.W.2 and P.W. 3 have consistently deposed that they had seen the appellants conjointly assaulting the deceased. When he went towards the place of occurrence, he saw the appellants fleeing from there. From this, it is evident that he has not seen the actual incidence but was a witness to event that followed immediately after the incidence. 14. P.W. 1, P.W.2 and P.W. 3 have consistently deposed that they had seen the appellants conjointly assaulting the deceased. Although the Investigating Officer has not been examined, but I have perused the case diary and do not find any contradiction between their deposition and the statement given to police under Section 161 of the Cr.P.C. Defence has also failed to elicit any contradiction in their account by drawing the attention of the statement given to police. The defence therefore, could not be said to be prejudiced on account of non-examination of the I.O. I do not see any reason to disbelieve their account. From the combined reading of their testimony, it is evident that the appellants conjointly assaulted the deceased who happens to the father of P.W. 1, P.W. 2 and P.W. 3 resulting in his instantaneous death. From the evidence, it is apparent that deceased was done to death in the conjoint assault by the appellants and therefore they can be credited with the common intention to commit the offence. 15. First information report is not a substantive piece of evidence. It can be used merely by way of corroboration or contradiction and no further. If the FIR is not duly proved, or if a statement recorded as an FIR cannot be used as an FIR on legal grounds, merely for that reason the evidence of the eye-witnesses cannot be rejected if the same is found to be otherwise reliable. If there is contradiction between the testimony of the informant and his statement which is the foundation of formal FIR, then it being not proved can be regarded as fatal to the prosecution. In the instant case, I do not find any contradiction between the evidence of the informant (P.W. 7) and the FIR, and therefore, it not being proved cannot be regarded as fatal. 16. As discussed above, it is consistently stated by the witnesses that all these appellants were involved in the assault which resulted in death of Pithu Baski and P.W. 3 was also injured in the same transaction. All the appellants by forming an unlawful assembly, conjointly assaulted the deceased and P.W. 3. 16. As discussed above, it is consistently stated by the witnesses that all these appellants were involved in the assault which resulted in death of Pithu Baski and P.W. 3 was also injured in the same transaction. All the appellants by forming an unlawful assembly, conjointly assaulted the deceased and P.W. 3. The genesis of offence has also been established as previous land dispute. It is clarified that essence of offence under Section 149 of the IPC is that, member of the unlawful assembly is constructively held liable for the criminal act committed by any member of the unlawful assembly. Where there is evidence of participation in the criminal act committed in the furtherance of the common intention, Section 34 of the IPC will apply. Since all the appellants had participated in the assault in furtherance of common intention to commit the offence, therefore Section 34 of the IPC will apply and the appellants have been rightly convicted under Section 302/34 of the IPC. Since the appellants had also formed unlawful assembly armed with deadly weapon like tangi, sword, lathi etc., there conviction and sentence under Section 148 is also upheld. All these aspects have been dealt at length by the trial Court. I do not see any reason to differ with the finding of the learned trial Court. Judgment of conviction and sentence, is accordingly affirmed. Both the Criminal Appeals stand dismissed. All the appellants are on bail. Their bails are cancelled and they are directed to surrender before the Trial Court to serve the remaining part of their sentences. Pending Interlocutory Application, if any, is disposed of. Let the Trial Court Records be transmitted to the Court concerned along with a copy of this judgment.