JUDGMENT S. BARMAN ROY, C.J. : This Death Reference along with the Criminal Appeal of Dara Singh and other connected Jail Criminal Appeal and Criminal Appeals having arisen out of the same judg¬ment passed by the learned trial Court were heard analogously and are being disposed of by this common judgment. 2. This is a sensational case of triple murders of an Australian Christian Missionary, namely, Graham Stewart Staines and his two minor sons. Among the appellants, convict Dara Singh alone was convicted under Section 302, IPC simpliciter and has been sentenced thereunder to death. Apart from the aforesaid, Dara Singh and all the appellants of the connected appeals have been convicted also under Sections 302/149, 120-B, 148, 435/149 and 436/149, IPC, and have been sentenced to various terms of imprisonment including imprisonment for life in respect of of¬fences under Sections 302/149 and 120-B, and 436/149, IPC. Apart from Dara Singh alias Rabindra Kumar Pal, other appellants, namely, Umakan¬ta Bhoi,Kartik Lohar, Rabi Soren, Mahadev Mahanta, Turam Ho, Dayanidhi Patra, Renta Hembram, Suresh Hansda alias Ojen, Mahen¬dra Hembram, Suratha Naik, Harish Chandra Mohanta, and Dipu alias Rajata Kumar Das were convicted and sentenced as already stated. 3. The prosecution case is that Graham Stewart Staines was a Christian Missionary from Australia and he was working in this State among the poor people and lepers. His two minor sons, namely, Phillip Staines, aged about 10 years and Timothy Staines, aged about 6 years were also brutally murdered. It needs to be stated here that appellant Dayanidhi Patra preferred two appeals against the same judgment, namely, Jail Criminal Appeal No.131 of 2003 and Criminal Appeal No.278 of 2003. 4. The incident of murders took place in the mid-night of 22.1.1999/23.1.1999. In this case, in all 55 P.Ws were examined on behalf of the prosecution. It appears that out of the said 55 P.Ws, 11 witnesses were examined as eye-witnesses for the prose¬cution. They are P.W.2, Basi Tudu, P.W.3, Paul Murmu, P.W.4, Ralia Soren, P.W.5, Sinigo Marandi, P.W.10, Nimai Hansda, P.W.11, Bhakta Marandi, P.W.15, Mathai Marandi, P.W.23 Joseph Marandi, P.W.36, Raghunath Dohari, P.W.39, Solemn Marandi and P.W.43, Lablal Tudu. Apart from the evidence of the aforesaid eye-witnesses, number of appellants made confessional statements. Prosecution also adduced evidence of criminal conspiracy against all the appellants. Apart from the evidence of the aforesaid eye-witnesses, number of appellants made confessional statements. Prosecution also adduced evidence of criminal conspiracy against all the appellants. These are the three types of evidence, name¬ly, version of the eye-witnesses, confessional statements of number of appellants and evidence relating to criminal conspiracy that were relied upon by the prosecution before the trial Court, and acting upon such evidence the trial Court convicted and sentenced the appellants as already stated. 5. On behalf of the defence in all 25 witnesses were examined. Defence of the appellants in course of the trial was that of simple denial of the prosecution case as alleged. 6. It appears from the record of this case that all the accused were charged under Sections 120-B, 148, 435/149, 436/149 and 302/149, IPC. Apart from these charges, appellant Rabindra Kumar Pal alias Dara Singh was separately charged under Section 302, IPC. Only the appellant Rabindra Kumar Pal alias Dara Singh was convicted under Section 302 IPC simpliciter and was awarded sentence of death thereunder. All the appellants including the appellant Dara Singh were also convicted and sentenced as already stated. Death Reference No.1 of 2003 is a reference to this Court made by the trial Court under Section 366 of the Code of Criminal Procedure for confirmation of death sentence awarded to accused Rabindra Kumar Pal alias Dara Singh. 7. We will first deal with the evidence of eye-witnesses. On the basis of evidence of these eye-witnesses and also the con¬fessional statements allegedly made by some of the appellants, the appellant Dara Singh was convicted under Section 302 IPC and has been awarded sentence of death. Apart from this, all the appellants including appellant Dara Singh were further convicted under Sections 148, 435/149, 436/149, and Section 302/149, IPC on the basis of evidence of the eye witnesses and confessional state¬ments allegedly made by some of the appellants. They were also convicted under Section 120-B IPC and, accordingly, they were all sentenced to imprisonment for life on the basis of evidence relating to conspiracy. Therefore, we will first deal with the eye-witnesses and thereafter, we will proceed to examine the evidence furnished by the confessional statements allegedly made by some of the convict-appellants, and lastly we will take up the evidence relating to the charge under Section 120-B IPC. 8. Therefore, we will first deal with the eye-witnesses and thereafter, we will proceed to examine the evidence furnished by the confessional statements allegedly made by some of the convict-appellants, and lastly we will take up the evidence relating to the charge under Section 120-B IPC. 8. Among the eye-witnesses P.W.2 Basi Tudu is the first eye-witness examined on behalf of the prosecution. In her evi¬dence she stated that she is Christian by faith. She knew the deceased Graham Stewart Staines for the last 15 years. Deceased Graham Stewart Staines used to visit Manoharpur church once in a year. He last visited the said church two years back on a Wednes¬day. He came there with his two minor sons, namely, Timothy Staines and Philip Staines. One Suvankar Ghosh also came with them. They were also accompanied by their driver. The luggage of Graham Stewart Staines were brought in another vehicle. Name of the said driver is Nimai Hansda (P.W.10); The vehicle carrying the luggage was driven by P.W. 10 Nimai Hansda and the other vehicle was driven by Graham Staines himself. The driver Nimai Hansda also used to cook food for Graham Staines. In the night of occurrence, Graham Staines with his two minor sons slept inside one of the vehicles. The said vehicle was parked in front of the church. 9. The occurrence took place on 22.1.1999 at about 12 mid-night. Hearing some dogs barking, she woke up and came out from her house when she found about 60 persons were proceeding along the passage by the side of her house towards the church. Among them she could identify one Chenchu. However, the said Chenchu is not before us in any of these appeals and the Death Reference Case. It appears from her evidence that in the trial Court she first identified an accused by face whose name is Rajat Kumar Das. However, when this witness was brought to the middle of the Court-room to have a better view of the accused persons, she could identify one appellant by face whose name is Ojen Hansda alias Suresh Hansda. Instead of identifying accused-appellant Rajat Kumar Das, she pointed out Ojen Hansda as the person whom she saw among the aforesaid 60 persons. It is, therefore, evident that she did not know Ojen Hansda alias Suresh Hansda by name. Instead of identifying accused-appellant Rajat Kumar Das, she pointed out Ojen Hansda as the person whom she saw among the aforesaid 60 persons. It is, therefore, evident that she did not know Ojen Hansda alias Suresh Hansda by name. She identified Suresh Hansda for the first time in the Court by face only. She also stated that these 60 persons were holding torch-lights and lathis. At that time appellant Suresh alias Ojen Hansda had tied his head with a piece of red cloth. Others did not tie their heads with any cloth. When she wanted to know from them as to whether they were proceeding for a dance or for hunt¬ing, the miscreants did not give any reply whatsoever. After that, she went back to her bed. Soon after that, she could hear bursting sound and on hearing such sound she again came out of her house. However, the aforesaid miscreants did not allow her to proceed further. Then she went to the thrashing floor and from the thrashing floor she found that these miscreants had surround¬ed the vehicle of Graham Staines and she could see them setting fire to the said vehicle and accordingly, Graham Staines and his two minor sons were burnt to death. The people who had surrounded the vehicle raised slogans saying “JAI BAJARANGA BALI” and “DARA SINGH JINDABAD”. This is in brief what she has stated in her examination in chief. 10. It appears from the evidence on record that of all the appellants, she could identify only appellant Suresh Hansda alias Ojen by face for the first time before the trial Court. No.T.I. Parade was held to enable her to identify Suresh Hansda. There¬fore, her identification of Suresh Hansda alias Ojen by face during trial was not corroborated by any previously held test identification parade. In course of the investigation, her state¬ments were first recorded by the Crime Branch of the State Police on 4.2.1999. Investigation of the case was later on taken up by the C.B.I. Her statement was again recorded on 5.6.1999 by the C.B.I. Investigating Officer, namely, P.W.55. It is the admitted case that in none of these statements recorded by the two Inves¬tigating Officers, she ever disclosed the name of Ojen alias Suresh Hansda. During her cross-examination she further admitted that there was no moon in the sky at that time. It is the admitted case that in none of these statements recorded by the two Inves¬tigating Officers, she ever disclosed the name of Ojen alias Suresh Hansda. During her cross-examination she further admitted that there was no moon in the sky at that time. But, she claims to have identified the appellant Suresh Hansda alias Ojen Hansda by the light of the lamp locally called Dibri which she had kept on the verandah. It must be mentioned here that it was mid-night during the pick up the winter season. She claims to have kept a lamp in the verandah when she was sleeping inside her house. Reason for keeping a lighted lamp (Dibri) in the verandah at midnight is not understood. The question whether any reliance can be placed on such evidence of this witness where she identified the accused Ojen Hansda alias Suresh Hansda for the first time in the trial Court without being corroborated by any previously held test identification parade will be dealt with later while dealing with the evidence of all the eye-witnesses together inasmuch as the evidence of all the eye-witnesses suffer from same defect. So far as other appellants are concerned, the evidence of this witness virtually contains nothing. She also admitted during her cross-examination that she could not identify any of the persons who had surrounded the vehicle of Graham Staines and set it ablaze. Her belated disclosure of the incident as seen by her to the police is another circumstance against her credibility though a huge police party was camping in the village for several months since the morning after the incident. 11. P.W.3 Paul Murmu is the next eye-witness for the prosecution. He stated in his evidence that he was converted to Christianity in the year 1997. He knew the deceased Graham Staines since 1972. He used to accompany Graham Staines to dif¬ferent places. He last accompanied Graham Staines during his visit to Manoharpur on 20.1.1999. They started together on that day from Baripada in two vehicles. They were in all 11 persons together including Graham Staines and his driver. He was travell¬ing in the vehicle No.1208 (a jeep) along with Pittar Murmu, Bayu Hembram and driver Nimai Hansda (P.W. 10). He last accompanied Graham Staines during his visit to Manoharpur on 20.1.1999. They started together on that day from Baripada in two vehicles. They were in all 11 persons together including Graham Staines and his driver. He was travell¬ing in the vehicle No.1208 (a jeep) along with Pittar Murmu, Bayu Hembram and driver Nimai Hansda (P.W. 10). Along with Graham Staines his two minor sons, namely, Timothy and Philip (both deceased) and three other persons from Cuttack, namely, Suvankar Ghosh, Pittak Khugi and another were travelling in vehicle bear¬ing No.952. They reached Manoharpur in the evening. Three huts were constructed for them just behind the church. In the first hut, Pittar Khugi and the person from Cuttack stayed. The driver Nimai Hansda (P.W.10); and Bayu Hembram stayed in the second hut. This witness himself along with P.W.5 Pittar Murmu stayed in the third hut. Graham Staines and his two minor sons slept inside vehicle No.1208 in front of the church. Both the vehicles were parked in front of the church. It is stated by him in his evi¬dence that whenever Graham Staines used to visit Manoharpur he used to sleep inside the vehicle. That night “Nagin Dance” was performed at a distance of about 250 cubits from the church. Around 12.30 A.M. P.W.10 Nimai Hansda suddenly woke him up from to sleep and simultaneously he heard sounds of beating the vehi¬cles parked in front of the church. Soon after that, this witness along with P.W.10 Nimai Hansda went near the church and found some 60/70 persons putting straw below the vehicle No.952 and setting it on fire. As P.W.10 Nimai Hansda proceeded towards the said vehicle No.952, he was assaulted by these people. Three persons were also found pulling the door of vehicle No.1208 in which Graham Staines and his two minor sons were sleeping. They pulled out the handle of the vehicle door but could not open the door. These three persons broke the glass pans of the vehicle in which Graham Staines and his two minor sons were sleeping and gave strokes to Graham Staines and his two sons with sticks. They also focussed the torch into the vehicle. One of them was a bearded man. These three persons broke the glass pans of the vehicle in which Graham Staines and his two minor sons were sleeping and gave strokes to Graham Staines and his two sons with sticks. They also focussed the torch into the vehicle. One of them was a bearded man. This witness then pointed out to accused Dara Singh alias Rabindra Kumar Pal in the dock saying that the bearded man resembled like the person whom this witness had seen at the scene of occurrence. Other two persons who were trying to open the door of the vehicle and were giving blows with lathis could not be identified by him. It, therefore, appears from his evidence that this witness found accused Dara Singh to resemble one of the assailants. They pulled straw which were kept on the top of the vehicle and put them below the vehicle and set fire to the same. A person of short stature set the straw and the vehicle ablaze. Thereafter, they raised slogans saying “JAI BAJARANG BALI” and “DARA SINGH JINDABAD”. They had also blew whistle thrice. That incident occurred in the mid-night of 22.1.1999. On the question of identification of appellant Dara Singh for the first time in the trial Court by this witness, his evidence reads as follows : “They were focusing torch into the vehicle. One of them was having a beard. The witness points out to accused Dara Singh in the dock saying that the bearded man resembled like him (Dara Singh). I am not able to identify if the other two are in the dock.” After the whistle was blown thrice, he became unconscious as he saw that he vehicle in which Graham Staines and his two minor sons were sleeping was on fire. After he regained consciousness, this witness along with others tried to extinguish the fire by pouring water, but the fire could not be extinguished. After the fire subsided he could find the charred bodies of Graham Staines and his two sons inside the vehicle and burnt head of one of the sons of Graham Staines, namely, Philip was severed from the body and was lying on the ground. The charred body of Timothy was lying in the vehicle with the head on the hand of charred body of Graham Staines. This is in brief what this witness had stated during his examination in chief. The charred body of Timothy was lying in the vehicle with the head on the hand of charred body of Graham Staines. This is in brief what this witness had stated during his examination in chief. It further appears from the evidence of this witness during cross-examination and the evi¬dence of the Investigating Officer that this witness in his statements given to the three Investigating Officers on three different dates never alleged that one of the miscreants was a bearded man. He further stated that he saw the occurrence from a distance of 5/6 cubits. He also never stated in his previous statement that P.W.10 Nimai Hansda accompanied him to the church at the time of occurrence. He never made any such statement to the Investigating Officer that the three persons including a bearded man gave strokes to Graham Staines and his two sons with lathis or that they flashed torches into the vehicle.He also never stated to the Investigating Officer that head of Timothy was served and was laying beneath the vehicle. This is in short the evidence given by him before the trial Court. It needs to be mentioned that statement of this witness was recorded by the Investigating Officer of the State Police on 23.1.1999. Again he was examined on 10.2.1999 by the Investigating Officer of the Crime Branch of the State Police. Subsequently, on 20.4.1999 his statement was recorded by the C.B.I. Investigating Officer (P.W.55). In none of these statements he claimed that one of the miscreants was a bearded man and nowhere he disclosed the name of Dara Singh alias Rabindra Kumar Pal. It is true that generally speaking identification of an unknown accused for the first time before the trial Court is of no value unless corroborated by previously held T.I. Parade. But, in exceptional cases departure from this general rule of prudence is permissible. Almost all the eye-witnesses consistently stated that during occurrence miscre¬ants raised slogans in the name of Dara Singh. The story of this slogan was also mentioned in F.I.R. lodged soon after the occur¬rence. Therefore, this slogan in the name of Dara Singh corrobo¬rates his identification before the trial Court for the first time. 12. P.W. 4 Ralia Soren is the next eye-witness for the prosecution. In his evidence he stated that he knew deceased Graham Staines since preceding 20 years. Graham Staines had two minor sons and a daughter. Therefore, this slogan in the name of Dara Singh corrobo¬rates his identification before the trial Court for the first time. 12. P.W. 4 Ralia Soren is the next eye-witness for the prosecution. In his evidence he stated that he knew deceased Graham Staines since preceding 20 years. Graham Staines had two minor sons and a daughter. Deceased Philip and Timothy were his two minor sons. Graham Staines visited Manoharpur last on 20.1.1999. He was accompanied by his two sons and others like Giliburt, Suvankar Ghosh, Swain and Khadi Babu. None of them had been examined in this case as witness. They all came in one vehi¬cle. Some travelled in another vehicle in which P.W.10 Nimai Hansda, Bayu Hembram, Pittar Murmu, P.W.3 Paul Murmu accompanied Graham Staines. They reached Manoharpur in the evening. This wit¬ness met Graham Staines and other persons accompanying him soon after their arrival at Manoharpur. After arrival there, Graham Staines along with his two minor sons slept in the vehicle bear¬ing No. 1208 and it was parked in front of the church. The other vehicle No.952 was also parked in front of the church. In the evening of 21.1.1999 a film relating to the life of Jesus Christ was exhibited in front of the church. In that night also Graham Staines and his two minors sons slept in the vehicle bearing No.1208. Again in the evening of 22.1.1999 a film on the life of Jesus Christ was screened in front of the church. Dinner was taken by them around 9 P.M. and Graham Staines and his two minor sons slept inside the vehicle bearing No.1208. His (P.W.4) house is situated to the south of the church intervened by four other houses. The vehicles parked in front of the church were visible from the road in front of his house. In the night of occurrence on 22.1.1999 this witness slept in his house after dinner. His wife was sleeping in another room. His wife woke him up from sleep and said that sound of large number of people going towards the church with lathis and torches was heard. He then came out and hardly walked 100 ft. towards the vehicle when he could find large number of people giving lathi blows on the vehicle in which Graham Staines and his two minor sons slept. Other vehicle bear¬ing No.952 was also set on fire. He then came out and hardly walked 100 ft. towards the vehicle when he could find large number of people giving lathi blows on the vehicle in which Graham Staines and his two minor sons slept. Other vehicle bear¬ing No.952 was also set on fire. Three to four persons belonging to that group caught hold of his collar and restrained this witness from proceeding further. They focused torch light on his face and threatened him with lathis not to call anybody or raise any alarm. He admits that he could not recognize any of them as they kept their heads covered with caps and faces by mufflers. At that time Barial Marandi (not examined in this case) was running towards him. Then he went back and took the route to the church through his backyard. He called Christian people of the street, but none responded. He along with Barial Marandi then went to the Grama Rakhi at Panasadiha. However, the Grama Rakhi declined to come out during night. Then they went to Tulasibani and called the Christian people of the village. Five of them came with this witness to Manoharpur. When they reached near the church, they found that both the vehicles were burnt, and Graham Staines and his two sons were burnt to death. Thereafter this witness along with some others went to the house of one Pradipta Das (not examined) and reported him about the incident and from there all of them went to Thakurmunda Police Station. They went straight to the residence of the O.I.C. of the said Police Station and woke him up. As Manoharpur village is situated under the jurisdiction of Anandpur police station which is situated at a distance of 50 kilometers from Manoharpur, they requested the O.I.C. of Thakurmunda Police Station to report the incident to Anandapur Police Station, the Superintendent of Police and the Collector of the district. Later on, this witness along with Pradipta Das from a telephone booth informed the Superintendent of Police and the Collector of the district about the incident. Thereafter this witness along with others and P.W.23 Joseph Marandi boarded a bus for Anandapur. They could arrive at Anandapur on the next day at 8.20 A.M. When he reached the Police Station as he had already left for Manoharpur. Thereafter this witness along with others and P.W.23 Joseph Marandi boarded a bus for Anandapur. They could arrive at Anandapur on the next day at 8.20 A.M. When he reached the Police Station as he had already left for Manoharpur. The police personnel available at Anandapur Police Station arranged for their transport by a private jeep to Manoharpur and after reaching Manoharpur at about noon time, they found that the police personnel had already arrived there. Around 9 P.M., the O.I.C. of Anandapur Police Station being P.W.52 showed him a written paper and told him that is the F.I.R. and he gave signa¬ture thereto as requested by the O.I.C. This is the entire evi¬dence during his examination in chief. It appears from his evi¬dence during examination in chief that he never claimed to have recognized any of the miscreants involved in the incident. There¬fore, his evidence does not serve any purpose whatsoever for the prosecution so far as identify of the miscreants is concerned. But it must be mentioned here that in the F.I.R. names of large number of miscreants were mentioned. But none of them has been charge-sheeted in this case. It is true that names of none of the appellants were mentioned in the F.I.R. But in the F.I.R. itself it was stated by this witness that at the time of occurrence miscreants raised slogans saying “BAJRANGABALI ZINDABAD” AND DARA SINGH ZINDABAD”. Therefore, these slogans lend corroboration to the testimony of these eye witnesses who identified Dara Singh for the first time in the trial Court. 13. P.W.5 Sinigo Marandi has also figured in this case as an eye witness. In his evidence, he stated that he is a resident of village Manoharpur. A “Nagin dance” was held in their village in the night of Saraswati Puja in 1999. This dance started in the evening and he witnessed it along with other boys and girls of the village and his mother as well as Mukta Marandi. He witnessed the dance for about an hour and thereafter he slept at the veran¬dah of one Galu of their village. The “Nagin dance” was staged at a distance of about 200 ft. from the church. He witnessed the dance for about an hour and thereafter he slept at the veran¬dah of one Galu of their village. The “Nagin dance” was staged at a distance of about 200 ft. from the church. A cinema was exhib¬ited in front of the church before the “Nagin dance began.” When he was sleeping in the verandah of one Galu, his mother was sitting by his side, though time of occurrence was midnight during peak of the winter season. Who else could be termed as chance witnesses except this witness and his mother who were sleeping in the verandah of another man during peak of the winter night instead of sleeping in their own house ? This witness further stated in his evidence that at midnight his mother woke him up and then he saw something was burning near the church. He further found that a vehicle was moving towards the road and appellant Ojen and one Chenchu (not an accused in this case) came to this witness and his mother. They were carrying lathis and torch with their heads tied with red cloth. They advised this witness and his mother not to go near the fire as they would be exposed to the risk of being killed if they went near that place where some people who were brought by them were killing the Christians. They asked them not to disclose their names to any body. For this reason this witness and his mother went out of the village to the field situated nearby. Thereafter, he heard sound of blowing whistle thrice and the slogans like “JAI BAJRANG BALI” and “JAI DARA SINGH”. While pointing to appellant Ojen Hansda in the dock, he stated that a person of his appearance told him not to go near the fire. But his evidence that a person with appear¬ance resembling appellant Ojen Hansda had told him not to go near the fire does not amount to identification of the appellant Ojen Hansda. Therefore, this evidence to this effect does not help prosecution even with respect to Ojen Hansda. It further appears that at the time of occurrence he was prosecuting his studies at Cuttack and his mother was working as a labourer in Bhadrak. Therefore, this evidence to this effect does not help prosecution even with respect to Ojen Hansda. It further appears that at the time of occurrence he was prosecuting his studies at Cuttack and his mother was working as a labourer in Bhadrak. In these circumstances coupled with the fact that he was sleeping in verandah of another person with her mother sitting beside him till midnight during peak of the winter sounds highly incredible and he fulfils all the characters of a chance witness. 14. Next important eye witness is P.W.10 Nimai Hansda. As already seen during discussion of evidence of the aforesaid eye-witnesses, P.W.10 drove the vehicle carrying the luggage of Graham Staines and along with him they all reached Manoharpur in the evening from Baripada. It appears from his evidence that he is also an eye-witness of the occurrence. His evidence is also more or less similar to the evidence of other eye-witnesses already discussed except that he could not identify anybody. During his examination in chief, he clearly admitted that the could not identify any of the miscreants involved in the inci¬dent. Therefore, for the sake of brevity, we do not consider it necessary to discuss his evidence any more. However, it needs to be mentioned here that during the occurrence he heard the miscre¬ants raising slogans saying “JAI BAJRANG BALI” and “DARA SINGH JINDABAD”. Therefore, his evidence that the heard slogan in the name of Dara Singh corroborates evidence of other eye-witness who identified Dara Singh in the trial Court for the first time. 15. P.W.11 Bhakta Marandi is the next eye-witness of the occurrence. In his evidence he stated that in the night of 22.1.1999 Graham Staines and his two minor sons slept in a vehi¬cle and this witness himself slept in his house. In the mid-night his wife woke him up from sleep on hearing some bursting sound. On hearing this, he came out of the house and found 4/5 persons standing in front of his house holding lathis and torches. They were threatening that they would kill the persons whosoever dared to go that way. One of them threw a lathi to him. This witness retreated back to his house and went to his back yard and from there he went to the house of one Benjamin situated one house apart from the church. They were threatening that they would kill the persons whosoever dared to go that way. One of them threw a lathi to him. This witness retreated back to his house and went to his back yard and from there he went to the house of one Benjamin situated one house apart from the church. From there he saw number of persons in front of the church near the vehicle, and they were all armed with lathis and were holding torches. They were beating the vehicle with lathis. A slim and tall man was holding an axe. They set fire to one of the vehicles. Those persons had red clothes tied around their heads. Two/three persons poured petrol near the wheel of the vehicle. Some of them brought straw from a nearby straw heap and kept the same in the vehicle. They set fire to both the vehicles and both the vehicles were burnt. The miscreants blew whistle and raised slogan saying “JAI BAJARANG BALI” and “DARA SINGH JINDABAD” Then they left the place. The person holding the axe was also beating the vehicle with an axe and guiding other miscreants. This wit¬ness then pointed out the accused Dara Singh and accused Rajat Kumar Das in the dock and claimed that these two persons ever beating the vehicle and set fire on the vehicles. Accused Dara Singh had been identified as a slim and tall man holding an axe and he was guiding the other miscreants. He further claims that the Investigating Officer of the C.B.I. showed him photographs of some persons and he had identified two of the photographs as the miscreants. He put his signature on those photographs. M.O.I. is the photograph of accused Dara Singh standing in the dock. M.O. II is the photograph of accused Rajat Kumar Das in the dock. This is in short the evidence given by him. This part of the prosecution story as regards photo identification of these two appellants is also reiterated by the C.B.I. Investigating Officer (P.W.55). It needs to be mentioned here that accused Paul Murmu (P.W.3) also identified Dara Singh for the first time in the trial Court. In his evidence P.W.3 stated that Dara Singh was giving strokes on Graham Staines with a lathi. But P.W. 11 says that accused Dara Singh was holding an axe and with the axe he was beating the vehicle. In his evidence P.W.3 stated that Dara Singh was giving strokes on Graham Staines with a lathi. But P.W. 11 says that accused Dara Singh was holding an axe and with the axe he was beating the vehicle. However, in a dark night an axe may appear like a lathi or vice versa. The evidence that the Investigating Officer showed some photographs and he identified the same and the said two photographs were of accused Dara Singh and Rajat Kumar Das is inadmissible in evidence inasmuch as these statements are the statements before the Investigating Officer during Police Investigation and such statement are hit by Section 162, Cr.P.C. Section 162, Cr.P.C. clearly provides as to how statements made to a Police Officer in course of investigation should be used. Same cannot be used as evidence except for the purpose of contradiction. The evidence of this witness to the Instigating Officer with regard to identification by photographs sought to be proved by the prosecution amounts to statement made to a Police Officer in course of investigation. Therefore, such evidence is clearly inadmissible in evidence. The evidence of other eye-witnesses also suffer from more or less same defect as regards identifica¬tion. The statement recorded under Section 161, Cr.P.C. cannot be used for any purpose except for the purpose as provided under Section 162, Cr.P.C. It may be used only for contradiction. The prosecution cannot contradict its own witness with his previous statement unless he is declared hostile and permission is ob¬tained from the trial Court to cross-examine him. Of course, if such statements amount to dying declaration though recorded u/s 161 Cr.P.C. same may be used as evidence. Surely identifications of the offenders by photographs before a police officer do not amount to dying declaration. Therefore, such statements are clearly hit by Section 162, Cr.P.C. and hence same are inadmissi¬ble in evidence. It is thus manifest from the aforesaid that this witness did not know accused Dara Singh or Rajat Kumar Das by name. He identified them for the first time in the trial Court. The evidence of identification by photographs before the Investi¬gating Officer being inadmissible, for the reasons stated above, the same is not available to lend corroboration to the identifi¬cation of these two accused before the trial Court for the first time. Needless to mention here that no test identification parade was held. The evidence of identification by photographs before the Investi¬gating Officer being inadmissible, for the reasons stated above, the same is not available to lend corroboration to the identifi¬cation of these two accused before the trial Court for the first time. Needless to mention here that no test identification parade was held. Instead of adopting this novel method, as done by the Investigating Officer, it was open to him to place the photographs before the Judicial Magistrate and Judicial Magistrate could have been requested to hold a test identification parade of photo¬graphs of suspects and direct this witness to identify if any of the persons in the photographs were participants in the crime. That course was not followed by the Investigating Officer. Such lapses on the part of an elite investigating agency like C.B.I. cannot be excused. But he heard slogans in the name of Dara Singh. Eye witnesses are consistent about this story of slogan in the name of Dara Singh. This slogan was also mentioned in the F.I.R. Therefore, identification of Dara Singh is corroborated by the story of slogan raised in his name. Though we accept his evidence as regards Dara Singh, we are unable to accept his evidence as regards identification of Rajat Kumar Das for want of proper corroboration to his identification. He further stated during his cross-examination that P.W. 15 Mathai Marandi and two others came to the place of occurrence after the miscreants left that place. He also did not report about the incident to them. This witness does not claim to have seen any one who arrived at the scene of occurrence while Bikram Marandi, Susna Marandi and P.W. 15 Mathai Marandi came there after the miscreants had left that place. He further stated that in the next morning police and Collector came to their village. Yet, this witness did not report about the incident he had seen either to the police or to the Collector. His statement was recorded for the first time by P.W.55 on 5.6.1999. It is also stated by him that the Investigat¬ing Officer of the C.B.I. brought some 20/25 photographs to his house for identification of the suspects and out of those photo¬graphs he identified only 2 photographs of appellants Dara Singh and Rajat Kumar Das and accordingly signed the said photographs. It is also stated by him that the Investigat¬ing Officer of the C.B.I. brought some 20/25 photographs to his house for identification of the suspects and out of those photo¬graphs he identified only 2 photographs of appellants Dara Singh and Rajat Kumar Das and accordingly signed the said photographs. He further admitted that he did not know the names of the persons whose photographs he identified before the C.B.I. Investigating Officer, and also that he saw the man holding an axe for the first time during the occurrence. He further admits that he could learn the name of the accused Dara Singh when he was told by the Investigating Officer of the C.B.I. the day prior to the date on which his deposition was recorded before the trial Court. He was also told by the Investigating Officer of the C.B.I. that the name of the person in the photograph Ext. M.O. II is Rajat Das. There was an inordinate delay of about five months on his part to report about the incident to the police though a police camp was set up in the village in the very next morning after the incident and it was continued there for several months. Apart from the police camp, several high level police officers including inves¬tigating officers and administrative officers were visiting the village of occurrence since the morning after the incident. Evi¬dence of such a witness is not at all reliable. His evidence with regard to identification of Dara Singh may be acceptable as the same is corroborated by the story of slogans raised in the name of Dara Singh. But we are unable to accept the identification of Rajat Das. 16. P.W.15 Mathai Marandi also figured in this case as an eye-witness. In his evidence he stated that on 20.1.1999 deceased Graham Staines along with 11 other including his two sons, name¬ly, Philip and Timothi visited village Manoharpur. Graham Staines along with two sons used to sleep during night in the vehicle parked in front of the church. In the night of 22nd January, 1999 when this witness was sleeping, his wife on hearing some bursting sound woke him up. P.W.15 Mathai then came out being attracted by some commotion and sound of beating and found 40/50 persons had gathered near the vehicle in front of the church and they were beating the vehicle with lathi. In the night of 22nd January, 1999 when this witness was sleeping, his wife on hearing some bursting sound woke him up. P.W.15 Mathai then came out being attracted by some commotion and sound of beating and found 40/50 persons had gathered near the vehicle in front of the church and they were beating the vehicle with lathi. The miscreants were armed with lathis, axe, bows and arrows and torches. They were beating both the vehicles. He also heard cries of two sons of Graham Staines. When he advanced towards the vehicles, 3 or 4 persons focused torches at his face and as they threatened him with lathis, he repeated towards his house and went to the huts raised behind the church and called P.W. 10 Nimai Hansda, P.W.3 Paul Murmu, P.W.53 Pitter Murmu and others. When he again went to the place of occurrence near the vehicles, he found the miscreants setting fire to the vehicles. Miscreants pulled out straws from the top of the vehicles and put the same beneath the vehicles and set fire to them. Both the vehicles caught fire and were burnt. He claims that he could identify Dara Singh, Dipu Das, Ojen Hansda and Mahadev and, accordingly, he identified them in the dock he further stated that the appellants he identified were beating the vehicles and appellant Dara Singh was holding an axe and he was directing others saying “MARBE, PITA BE”. He also claimed in his evidence that Ojen Hansda and Mahendra Hembram belonged to his village. But, he did not identify appellant Mahendra Hembram and, therefore, his evidence against Mahendra Hembram is of no conse¬quence. He also identified appellant Umakanta Bhoi in a T.I. parade conducted in Anandapur jail. Umakanta Bhoi is one of the miscreants who set fire to the vehicles. P.W. 10 Nimai Hansda tried to extinguish the fire with a bucket of water but he was also assaulted. He further stated in his evidence that after the vehicles were burnt, miscreants blew whistle thrice and raised slogans saying ‘JAI BAJRANG BALI, DARA SINGH JINDABAD’ and then left the place. However, during cross-examination he admitted “I have not stated before the local police that I could identify 4 persons from among the miscreants. I have not stated before Crime Branch I.O. that I could identify 4 persons from among the mis¬creants”. However, during cross-examination he admitted “I have not stated before the local police that I could identify 4 persons from among the miscreants. I have not stated before Crime Branch I.O. that I could identify 4 persons from among the mis¬creants”. However, after the aforesaid statement, he immediately hastened to add an explanation saying, “As none of the I.Os asked me anything about the identification, I have not told before them that I could identify 4 of the miscreants.” This is too insuffi¬cient an explanation and hence it is bound to be rejected. He further admitted that he did not state in his statements before the investigating officers that appellant Umakanta Bhoi was also seen setting fire to the vehicles or that he saw some of the miscreants pulling straws from the “roof of vehicles, putting it beneath the vehicles near the wheel and setting fire to it”. During his cross-examination he conveniently failed to recollect if he had stated to the police that he had gone near the vehicle. He made most vital admission during his cross-examination with regard to appellant Umakanta Bhoi in the language as quoted hereunder :- “CBI officers had called me to the Anandapur camp and asked me whether I can identify accused Umakanta Bhoi and I told them in the affirmative. T.I. parade was conducted seven days thereafter at Anandapur jail and as per the date given by C.B.I. officers I went Anandapur jail to participate in the T.I. parade as a witness. The C.B.I. officers had shown me a bunch of photo¬graphs at their Anandapur camp the day they had called me there, i.e., seven days prior to T.I. parade. The photograph of Umakanta Bhoi was in that bunch.” 17. Therefore, seven days prior to T.I. parade in which this witness identified appellant Umakanta Bhoi, overzealous C.B.I. investigating officer (P.W.55) had shown this witness amongst others, a photograph of appellant Umakanta Bhoi. It further appears from the evidence of this witness that C.B.I. I.O. showed him a bunch of photographs and out of them he had signed three photos. But he could not say why he signed them. But, it appears from the evidence of P.W.55 that on being shown by P.W. 55, this witness (P.W.15) had identified photographs of different appellants. It further appears from the evidence of this witness that C.B.I. I.O. showed him a bunch of photographs and out of them he had signed three photos. But he could not say why he signed them. But, it appears from the evidence of P.W.55 that on being shown by P.W. 55, this witness (P.W.15) had identified photographs of different appellants. No Court of law, unless utterly over-credu¬lous, can act up on such evidence on a most important question as to the identification of the offenders. In these circum¬stances, we are constrained to observe that it was absolutely unfair and unethical on the part of the over zealous C.B.I. investigating officers to adopt such unheard of methods to pro¬cure tainted evidence to somehow procure conviction of the appel¬lants. Trial Court was also astonishingly over-credulous to act upon such evidence. This witness also gave evidence during the trial of juvenile offender Chenchu before the juvenile Court. It appears that in his evidence before the juvenile Court he did not state that the miscreants, who were beating the vehicles and setting fire to the same, were carrying lathis, axe, bows, arrows and torches or that he heard two minor sons of Graham Staines were crying or that he went near huts raised behind church and called P.Ws. Nimai, Paul, Pitter and other or that the miscreants pulled straws from the “roof of the vehicles and set it on fire” or that he again went to the P.O. and found the miscreants set¬ting the vehicles on fire or that appellant Dara Singh was hold¬ing an axe or that Nimai Hansda carried at bucket of water and he was assaulted or that miscreants raised slogans saying “DARA SINGH JINDABAD” and ‘JAI BAJARANGABALI’. He admitted that he did not tell anyone of his village that appellants Ojen Hansda and Mahendra Hembram were seen setting fire to the vehicles. He never saw Dara Singh before the occurrence. He admitted that he did not tell anyone of his village that appellants Ojen Hansda and Mahendra Hembram were seen setting fire to the vehicles. He never saw Dara Singh before the occurrence. In his statements before the State Police Investigating Officer he had not state that 40/60 persons had gathered at the place of occurrence or that he went to the huts raised behind the church and called Nimai Hansda, Paul Murmu, Pitter Murmu and others or that he heard wailing sound of minor sons of Graham Staines or that the miscreants were holding axe, bow, arrow etc., or that when he came out some of the miscreants had focused torches on his face or that he saw the miscreants setting fire to the vehicles., It appears that he stated to State Police Investigating Officers that he found vehi¬cles on fire only. He also did not state to them that he saw miscreants pulling out straws from the “roof of the vehicle” and put them beneath the vehicle and lighted the same or that he would be able to identify some of the miscreants or that the appellants Ojen Hansda and Mahendra Hembram belong to his vil¬lage. It therefore appears that in view of the foresaid circum¬stances and his omission to mention all important aspects in his evidence including names of the appellants he identified before the trial Court in his previous statements recorded by as many as three investigating officers, it is absolutely unsafe to place any reliance on his evidence. 18. The next eye-witness is P.W.36 Raghunath Dohari. In his evidence before the trial Court he stated that about 3 years prior to the date on which his evidence was recorded before the trial Court deceased Graham Staines visited the village Manoharpur by bus. Then he changed his version stating that the deceased Graham Staines visited Manoharpur in two vehicles. Both the vehicles were parked infront of the church. It was the day of Saraswati Puja. He slept in his house during the night. While so sleeping he heard sound of beating. Being attracted by such sound he got up from bed and went to the church where he could find a gathering of about 60/70 persons in front of the church, and they were beating the vehicles with sticks. They set fire to both the vehicles. While so sleeping he heard sound of beating. Being attracted by such sound he got up from bed and went to the church where he could find a gathering of about 60/70 persons in front of the church, and they were beating the vehicles with sticks. They set fire to both the vehicles. They brought straw and set fire to the vehicles by lighting the straws. The witness then identified the appellants Dara Singh, Harish Chandra, Mahadev and Turam Ho as the miscre¬ants, who were there in the gathering and set fire to the vehi¬cles. This is, in brief, the gist of the evidence given by him during his examination in chief. During cross-examination he further stated that the deceased were burnt alive. He further admitted that he never disclosed the occurrence to anybody. Between his house and the church there were about 8/9 other houses. He also stated that he did not report about the incident to any of the villagers in the morning. In the next morning after the occurrence police party came and camped there for about one month. He never visited the Police Station or the C.B.I. camp at Ghasipura. He was brought to the Court by the C.B.I. officer on the date on which his deposition was recorded by the trial Court. The appellants whom he identified before the trial Court were standing in front of the vehicle at the time of occurrence. From the deposition of this witness, as recorded by the trial Court, it is not clear whether P.W.36 identified the four accused per¬sons by name and face or by face only. It is also not clear from his evidence as to whether these four accused were previously known to him. The four persons whom he identified set fire to the vehicles by lighting the straw. He further stated that he had not seen the four accused persons whom he had identified in the dock after the occurrence till the date of his deposition. He further stated that Ralia Soren, Mathai Marandi and Joseph Marandi came to the place of occurrence after the incident was over and the miscreants had left the scene of occurrence. He also stated that all these persons came about an hour after the miscreants left the scene of occurance. He further stated that Ralia Soren, Mathai Marandi and Joseph Marandi came to the place of occurrence after the incident was over and the miscreants had left the scene of occurrence. He also stated that all these persons came about an hour after the miscreants left the scene of occurance. But P.W.15 Mathai Marandi clearly stated that he was present at the scene of occurrence and had himself witnessed the incident. In course of investigation the Investi¬gating Officer of the C.B.I., namely, P.W.55 alone recorded his statement under Section 161, Cr.P.C. on 30.5.1999. Before that he never reported the matter to the Police though it is admitted case of the prosecution witnesses that the police party arrived at the village in the very next morning after the incident and they camped there for several months. Apart from the police party, the Collector and other Police Officer also came to that place of occurrence. Yet, he did not report the incident the claims to have seen either to the police or to the Collector for about long 4 months. 19. P.W.55 being the C.B.I. Investigating Officer stated during cross-examination that the photographs of the suspects mixed with photographs of other persons were shown to the wit¬nesses including Raghunath Dohari in a test identification parade of photographs. This witness identified the photographs of the aforesaid appellants whom he identified in the trial Court. In the written notes of submission filed on behalf of the C.B.I. (see pages 68, 69 and 71 thereof) it is stated that photographs of suspects were not shown to this witness by P.W.55. But, this is belied by what the Investigating Officer (P.W.55) himself admitted at page 848 of the paper book. Such identification on the basis of photographs was held by P.W.55, being a statement made to the Investigating Officer in course of investigation, is inadmissible in evidence and hence such statements cannot be acted upon to lend corroboration to the identification of the appellants in the trial Court for the first time, particularly when they were not known to the witness. From this fact it is further evident that P.W.36 did not know the four accused persons by name or face as otherwise there was absolutely no justifica¬tion for the I.O. to hold photo identification parade of the suspects. From this fact it is further evident that P.W.36 did not know the four accused persons by name or face as otherwise there was absolutely no justifica¬tion for the I.O. to hold photo identification parade of the suspects. It further appears from page 847 of the paper book that P.W.55 (I.O.) procured photographs of each of the suspects from the election office. It further appears from page 848 of the paper book where I.O. (P.W.55) admitted during his cross-examina¬tion that he showed photos of suspects to P.W.36 Raghunath Dohari on 30.5.1999 and he identified Dara Singh, Dipu and Andka Naik only. Rest were not identified by him. But in his evidence before the trial Court he identified only Dara Singh, Harish Chandra, Mahadev and Turam Ho. Prosecution has not come forward to explain this serious contradiction on the question of identi¬fication. Therefore, in the ultimate analysis we have no option but to reject his testimony as regards identification of some of the appellants before the trial Court for the first time. It is equally unsafe to act upon his evidence due to his belated dis¬closure of the incident to I.O. (P.W.55) about five and half months after the occurrence. JUDGMENT S. BARMAN ROY, C.J. : This Death Reference along with the Criminal Appeal of Dara Singh and other connected Jail Criminal Appeal and Criminal Appeals having arisen out of the same judg¬ment passed by the learned trial Court were heard analogously and are being disposed of by this common judgment. 2. This is a sensational case of triple murders of an Australian Christian Missionary, namely, Graham Stewart Staines and his two minor sons. Among the appellants, convict Dara Singh alone was convicted under Section 302, IPC simpliciter and has been sentenced thereunder to death. Apart from the aforesaid, Dara Singh and all the appellants of the connected appeals have been convicted also under Sections 302/149, 120-B, 148, 435/149 and 436/149, IPC, and have been sentenced to various terms of imprisonment including imprisonment for life in respect of of¬fences under Sections 302/149 and 120-B, and 436/149, IPC. Apart from Dara Singh alias Rabindra Kumar Pal, other appellants, namely, Umakan¬ta Bhoi,Kartik Lohar, Rabi Soren, Mahadev Mahanta, Turam Ho, Dayanidhi Patra, Renta Hembram, Suresh Hansda alias Ojen, Mahen¬dra Hembram, Suratha Naik, Harish Chandra Mohanta, and Dipu alias Rajata Kumar Das were convicted and sentenced as already stated. 3. Apart from Dara Singh alias Rabindra Kumar Pal, other appellants, namely, Umakan¬ta Bhoi,Kartik Lohar, Rabi Soren, Mahadev Mahanta, Turam Ho, Dayanidhi Patra, Renta Hembram, Suresh Hansda alias Ojen, Mahen¬dra Hembram, Suratha Naik, Harish Chandra Mohanta, and Dipu alias Rajata Kumar Das were convicted and sentenced as already stated. 3. The prosecution case is that Graham Stewart Staines was a Christian Missionary from Australia and he was working in this State among the poor people and lepers. His two minor sons, namely, Phillip Staines, aged about 10 years and Timothy Staines, aged about 6 years were also brutally murdered. It needs to be stated here that appellant Dayanidhi Patra preferred two appeals against the same judgment, namely, Jail Criminal Appeal No.131 of 2003 and Criminal Appeal No.278 of 2003. 4. The incident of murders took place in the mid-night of 22.1.1999/23.1.1999. In this case, in all 55 P.Ws were examined on behalf of the prosecution. It appears that out of the said 55 P.Ws, 11 witnesses were examined as eye-witnesses for the prose¬cution. They are P.W.2, Basi Tudu, P.W.3, Paul Murmu, P.W.4, Ralia Soren, P.W.5, Sinigo Marandi, P.W.10, Nimai Hansda, P.W.11, Bhakta Marandi, P.W.15, Mathai Marandi, P.W.23 Joseph Marandi, P.W.36, Raghunath Dohari, P.W.39, Solemn Marandi and P.W.43, Lablal Tudu. Apart from the evidence of the aforesaid eye-witnesses, number of appellants made confessional statements. Prosecution also adduced evidence of criminal conspiracy against all the appellants. These are the three types of evidence, name¬ly, version of the eye-witnesses, confessional statements of number of appellants and evidence relating to criminal conspiracy that were relied upon by the prosecution before the trial Court, and acting upon such evidence the trial Court convicted and sentenced the appellants as already stated. 5. On behalf of the defence in all 25 witnesses were examined. Defence of the appellants in course of the trial was that of simple denial of the prosecution case as alleged. 6. It appears from the record of this case that all the accused were charged under Sections 120-B, 148, 435/149, 436/149 and 302/149, IPC. Apart from these charges, appellant Rabindra Kumar Pal alias Dara Singh was separately charged under Section 302, IPC. Only the appellant Rabindra Kumar Pal alias Dara Singh was convicted under Section 302 IPC simpliciter and was awarded sentence of death thereunder. All the appellants including the appellant Dara Singh were also convicted and sentenced as already stated. Apart from these charges, appellant Rabindra Kumar Pal alias Dara Singh was separately charged under Section 302, IPC. Only the appellant Rabindra Kumar Pal alias Dara Singh was convicted under Section 302 IPC simpliciter and was awarded sentence of death thereunder. All the appellants including the appellant Dara Singh were also convicted and sentenced as already stated. Death Reference No.1 of 2003 is a reference to this Court made by the trial Court under Section 366 of the Code of Criminal Procedure for confirmation of death sentence awarded to accused Rabindra Kumar Pal alias Dara Singh. 7. We will first deal with the evidence of eye-witnesses. On the basis of evidence of these eye-witnesses and also the con¬fessional statements allegedly made by some of the appellants, the appellant Dara Singh was convicted under Section 302 IPC and has been awarded sentence of death. Apart from this, all the appellants including appellant Dara Singh were further convicted under Sections 148, 435/149, 436/149, and Section 302/149, IPC on the basis of evidence of the eye witnesses and confessional state¬ments allegedly made by some of the appellants. They were also convicted under Section 120-B IPC and, accordingly, they were all sentenced to imprisonment for life on the basis of evidence relating to conspiracy. Therefore, we will first deal with the eye-witnesses and thereafter, we will proceed to examine the evidence furnished by the confessional statements allegedly made by some of the convict-appellants, and lastly we will take up the evidence relating to the charge under Section 120-B IPC. 8. Among the eye-witnesses P.W.2 Basi Tudu is the first eye-witness examined on behalf of the prosecution. In her evi¬dence she stated that she is Christian by faith. She knew the deceased Graham Stewart Staines for the last 15 years. Deceased Graham Stewart Staines used to visit Manoharpur church once in a year. He last visited the said church two years back on a Wednes¬day. He came there with his two minor sons, namely, Timothy Staines and Philip Staines. One Suvankar Ghosh also came with them. They were also accompanied by their driver. The luggage of Graham Stewart Staines were brought in another vehicle. Name of the said driver is Nimai Hansda (P.W.10); The vehicle carrying the luggage was driven by P.W. 10 Nimai Hansda and the other vehicle was driven by Graham Staines himself. One Suvankar Ghosh also came with them. They were also accompanied by their driver. The luggage of Graham Stewart Staines were brought in another vehicle. Name of the said driver is Nimai Hansda (P.W.10); The vehicle carrying the luggage was driven by P.W. 10 Nimai Hansda and the other vehicle was driven by Graham Staines himself. The driver Nimai Hansda also used to cook food for Graham Staines. In the night of occurrence, Graham Staines with his two minor sons slept inside one of the vehicles. The said vehicle was parked in front of the church. 9. The occurrence took place on 22.1.1999 at about 12 mid-night. Hearing some dogs barking, she woke up and came out from her house when she found about 60 persons were proceeding along the passage by the side of her house towards the church. Among them she could identify one Chenchu. However, the said Chenchu is not before us in any of these appeals and the Death Reference Case. It appears from her evidence that in the trial Court she first identified an accused by face whose name is Rajat Kumar Das. However, when this witness was brought to the middle of the Court-room to have a better view of the accused persons, she could identify one appellant by face whose name is Ojen Hansda alias Suresh Hansda. Instead of identifying accused-appellant Rajat Kumar Das, she pointed out Ojen Hansda as the person whom she saw among the aforesaid 60 persons. It is, therefore, evident that she did not know Ojen Hansda alias Suresh Hansda by name. She identified Suresh Hansda for the first time in the Court by face only. She also stated that these 60 persons were holding torch-lights and lathis. At that time appellant Suresh alias Ojen Hansda had tied his head with a piece of red cloth. Others did not tie their heads with any cloth. When she wanted to know from them as to whether they were proceeding for a dance or for hunt¬ing, the miscreants did not give any reply whatsoever. After that, she went back to her bed. Soon after that, she could hear bursting sound and on hearing such sound she again came out of her house. However, the aforesaid miscreants did not allow her to proceed further. After that, she went back to her bed. Soon after that, she could hear bursting sound and on hearing such sound she again came out of her house. However, the aforesaid miscreants did not allow her to proceed further. Then she went to the thrashing floor and from the thrashing floor she found that these miscreants had surround¬ed the vehicle of Graham Staines and she could see them setting fire to the said vehicle and accordingly, Graham Staines and his two minor sons were burnt to death. The people who had surrounded the vehicle raised slogans saying “JAI BAJARANGA BALI” and “DARA SINGH JINDABAD”. This is in brief what she has stated in her examination in chief. 10. It appears from the evidence on record that of all the appellants, she could identify only appellant Suresh Hansda alias Ojen by face for the first time before the trial Court. No.T.I. Parade was held to enable her to identify Suresh Hansda. There¬fore, her identification of Suresh Hansda alias Ojen by face during trial was not corroborated by any previously held test identification parade. In course of the investigation, her state¬ments were first recorded by the Crime Branch of the State Police on 4.2.1999. Investigation of the case was later on taken up by the C.B.I. Her statement was again recorded on 5.6.1999 by the C.B.I. Investigating Officer, namely, P.W.55. It is the admitted case that in none of these statements recorded by the two Inves¬tigating Officers, she ever disclosed the name of Ojen alias Suresh Hansda. During her cross-examination she further admitted that there was no moon in the sky at that time. But, she claims to have identified the appellant Suresh Hansda alias Ojen Hansda by the light of the lamp locally called Dibri which she had kept on the verandah. It must be mentioned here that it was mid-night during the pick up the winter season. She claims to have kept a lamp in the verandah when she was sleeping inside her house. Reason for keeping a lighted lamp (Dibri) in the verandah at midnight is not understood. It must be mentioned here that it was mid-night during the pick up the winter season. She claims to have kept a lamp in the verandah when she was sleeping inside her house. Reason for keeping a lighted lamp (Dibri) in the verandah at midnight is not understood. The question whether any reliance can be placed on such evidence of this witness where she identified the accused Ojen Hansda alias Suresh Hansda for the first time in the trial Court without being corroborated by any previously held test identification parade will be dealt with later while dealing with the evidence of all the eye-witnesses together inasmuch as the evidence of all the eye-witnesses suffer from same defect. So far as other appellants are concerned, the evidence of this witness virtually contains nothing. She also admitted during her cross-examination that she could not identify any of the persons who had surrounded the vehicle of Graham Staines and set it ablaze. Her belated disclosure of the incident as seen by her to the police is another circumstance against her credibility though a huge police party was camping in the village for several months since the morning after the incident. 11. P.W.3 Paul Murmu is the next eye-witness for the prosecution. He stated in his evidence that he was converted to Christianity in the year 1997. He knew the deceased Graham Staines since 1972. He used to accompany Graham Staines to dif¬ferent places. He last accompanied Graham Staines during his visit to Manoharpur on 20.1.1999. They started together on that day from Baripada in two vehicles. They were in all 11 persons together including Graham Staines and his driver. He was travell¬ing in the vehicle No.1208 (a jeep) along with Pittar Murmu, Bayu Hembram and driver Nimai Hansda (P.W. 10). Along with Graham Staines his two minor sons, namely, Timothy and Philip (both deceased) and three other persons from Cuttack, namely, Suvankar Ghosh, Pittak Khugi and another were travelling in vehicle bear¬ing No.952. They reached Manoharpur in the evening. Three huts were constructed for them just behind the church. In the first hut, Pittar Khugi and the person from Cuttack stayed. The driver Nimai Hansda (P.W.10); and Bayu Hembram stayed in the second hut. This witness himself along with P.W.5 Pittar Murmu stayed in the third hut. Graham Staines and his two minor sons slept inside vehicle No.1208 in front of the church. In the first hut, Pittar Khugi and the person from Cuttack stayed. The driver Nimai Hansda (P.W.10); and Bayu Hembram stayed in the second hut. This witness himself along with P.W.5 Pittar Murmu stayed in the third hut. Graham Staines and his two minor sons slept inside vehicle No.1208 in front of the church. Both the vehicles were parked in front of the church. It is stated by him in his evi¬dence that whenever Graham Staines used to visit Manoharpur he used to sleep inside the vehicle. That night “Nagin Dance” was performed at a distance of about 250 cubits from the church. Around 12.30 A.M. P.W.10 Nimai Hansda suddenly woke him up from to sleep and simultaneously he heard sounds of beating the vehi¬cles parked in front of the church. Soon after that, this witness along with P.W.10 Nimai Hansda went near the church and found some 60/70 persons putting straw below the vehicle No.952 and setting it on fire. As P.W.10 Nimai Hansda proceeded towards the said vehicle No.952, he was assaulted by these people. Three persons were also found pulling the door of vehicle No.1208 in which Graham Staines and his two minor sons were sleeping. They pulled out the handle of the vehicle door but could not open the door. These three persons broke the glass pans of the vehicle in which Graham Staines and his two minor sons were sleeping and gave strokes to Graham Staines and his two sons with sticks. They also focussed the torch into the vehicle. One of them was a bearded man. This witness then pointed out to accused Dara Singh alias Rabindra Kumar Pal in the dock saying that the bearded man resembled like the person whom this witness had seen at the scene of occurrence. Other two persons who were trying to open the door of the vehicle and were giving blows with lathis could not be identified by him. It, therefore, appears from his evidence that this witness found accused Dara Singh to resemble one of the assailants. They pulled straw which were kept on the top of the vehicle and put them below the vehicle and set fire to the same. A person of short stature set the straw and the vehicle ablaze. Thereafter, they raised slogans saying “JAI BAJARANG BALI” and “DARA SINGH JINDABAD”. They had also blew whistle thrice. They pulled straw which were kept on the top of the vehicle and put them below the vehicle and set fire to the same. A person of short stature set the straw and the vehicle ablaze. Thereafter, they raised slogans saying “JAI BAJARANG BALI” and “DARA SINGH JINDABAD”. They had also blew whistle thrice. That incident occurred in the mid-night of 22.1.1999. On the question of identification of appellant Dara Singh for the first time in the trial Court by this witness, his evidence reads as follows : “They were focusing torch into the vehicle. One of them was having a beard. The witness points out to accused Dara Singh in the dock saying that the bearded man resembled like him (Dara Singh). I am not able to identify if the other two are in the dock.” After the whistle was blown thrice, he became unconscious as he saw that he vehicle in which Graham Staines and his two minor sons were sleeping was on fire. After he regained consciousness, this witness along with others tried to extinguish the fire by pouring water, but the fire could not be extinguished. After the fire subsided he could find the charred bodies of Graham Staines and his two sons inside the vehicle and burnt head of one of the sons of Graham Staines, namely, Philip was severed from the body and was lying on the ground. The charred body of Timothy was lying in the vehicle with the head on the hand of charred body of Graham Staines. This is in brief what this witness had stated during his examination in chief. It further appears from the evidence of this witness during cross-examination and the evi¬dence of the Investigating Officer that this witness in his statements given to the three Investigating Officers on three different dates never alleged that one of the miscreants was a bearded man. He further stated that he saw the occurrence from a distance of 5/6 cubits. He also never stated in his previous statement that P.W.10 Nimai Hansda accompanied him to the church at the time of occurrence. He further stated that he saw the occurrence from a distance of 5/6 cubits. He also never stated in his previous statement that P.W.10 Nimai Hansda accompanied him to the church at the time of occurrence. He never made any such statement to the Investigating Officer that the three persons including a bearded man gave strokes to Graham Staines and his two sons with lathis or that they flashed torches into the vehicle.He also never stated to the Investigating Officer that head of Timothy was served and was laying beneath the vehicle. This is in short the evidence given by him before the trial Court. It needs to be mentioned that statement of this witness was recorded by the Investigating Officer of the State Police on 23.1.1999. Again he was examined on 10.2.1999 by the Investigating Officer of the Crime Branch of the State Police. Subsequently, on 20.4.1999 his statement was recorded by the C.B.I. Investigating Officer (P.W.55). In none of these statements he claimed that one of the miscreants was a bearded man and nowhere he disclosed the name of Dara Singh alias Rabindra Kumar Pal. It is true that generally speaking identification of an unknown accused for the first time before the trial Court is of no value unless corroborated by previously held T.I. Parade. But, in exceptional cases departure from this general rule of prudence is permissible. Almost all the eye-witnesses consistently stated that during occurrence miscre¬ants raised slogans in the name of Dara Singh. The story of this slogan was also mentioned in F.I.R. lodged soon after the occur¬rence. Therefore, this slogan in the name of Dara Singh corrobo¬rates his identification before the trial Court for the first time. 12. P.W. 4 Ralia Soren is the next eye-witness for the prosecution. In his evidence he stated that he knew deceased Graham Staines since preceding 20 years. Graham Staines had two minor sons and a daughter. Deceased Philip and Timothy were his two minor sons. Graham Staines visited Manoharpur last on 20.1.1999. He was accompanied by his two sons and others like Giliburt, Suvankar Ghosh, Swain and Khadi Babu. None of them had been examined in this case as witness. They all came in one vehi¬cle. Some travelled in another vehicle in which P.W.10 Nimai Hansda, Bayu Hembram, Pittar Murmu, P.W.3 Paul Murmu accompanied Graham Staines. They reached Manoharpur in the evening. He was accompanied by his two sons and others like Giliburt, Suvankar Ghosh, Swain and Khadi Babu. None of them had been examined in this case as witness. They all came in one vehi¬cle. Some travelled in another vehicle in which P.W.10 Nimai Hansda, Bayu Hembram, Pittar Murmu, P.W.3 Paul Murmu accompanied Graham Staines. They reached Manoharpur in the evening. This wit¬ness met Graham Staines and other persons accompanying him soon after their arrival at Manoharpur. After arrival there, Graham Staines along with his two minor sons slept in the vehicle bear¬ing No. 1208 and it was parked in front of the church. The other vehicle No.952 was also parked in front of the church. In the evening of 21.1.1999 a film relating to the life of Jesus Christ was exhibited in front of the church. In that night also Graham Staines and his two minors sons slept in the vehicle bearing No.1208. Again in the evening of 22.1.1999 a film on the life of Jesus Christ was screened in front of the church. Dinner was taken by them around 9 P.M. and Graham Staines and his two minor sons slept inside the vehicle bearing No.1208. His (P.W.4) house is situated to the south of the church intervened by four other houses. The vehicles parked in front of the church were visible from the road in front of his house. In the night of occurrence on 22.1.1999 this witness slept in his house after dinner. His wife was sleeping in another room. His wife woke him up from sleep and said that sound of large number of people going towards the church with lathis and torches was heard. He then came out and hardly walked 100 ft. towards the vehicle when he could find large number of people giving lathi blows on the vehicle in which Graham Staines and his two minor sons slept. Other vehicle bear¬ing No.952 was also set on fire. Three to four persons belonging to that group caught hold of his collar and restrained this witness from proceeding further. They focused torch light on his face and threatened him with lathis not to call anybody or raise any alarm. He admits that he could not recognize any of them as they kept their heads covered with caps and faces by mufflers. At that time Barial Marandi (not examined in this case) was running towards him. They focused torch light on his face and threatened him with lathis not to call anybody or raise any alarm. He admits that he could not recognize any of them as they kept their heads covered with caps and faces by mufflers. At that time Barial Marandi (not examined in this case) was running towards him. Then he went back and took the route to the church through his backyard. He called Christian people of the street, but none responded. He along with Barial Marandi then went to the Grama Rakhi at Panasadiha. However, the Grama Rakhi declined to come out during night. Then they went to Tulasibani and called the Christian people of the village. Five of them came with this witness to Manoharpur. When they reached near the church, they found that both the vehicles were burnt, and Graham Staines and his two sons were burnt to death. Thereafter this witness along with some others went to the house of one Pradipta Das (not examined) and reported him about the incident and from there all of them went to Thakurmunda Police Station. They went straight to the residence of the O.I.C. of the said Police Station and woke him up. As Manoharpur village is situated under the jurisdiction of Anandpur police station which is situated at a distance of 50 kilometers from Manoharpur, they requested the O.I.C. of Thakurmunda Police Station to report the incident to Anandapur Police Station, the Superintendent of Police and the Collector of the district. Later on, this witness along with Pradipta Das from a telephone booth informed the Superintendent of Police and the Collector of the district about the incident. Thereafter this witness along with others and P.W.23 Joseph Marandi boarded a bus for Anandapur. They could arrive at Anandapur on the next day at 8.20 A.M. When he reached the Police Station as he had already left for Manoharpur. The police personnel available at Anandapur Police Station arranged for their transport by a private jeep to Manoharpur and after reaching Manoharpur at about noon time, they found that the police personnel had already arrived there. Around 9 P.M., the O.I.C. of Anandapur Police Station being P.W.52 showed him a written paper and told him that is the F.I.R. and he gave signa¬ture thereto as requested by the O.I.C. This is the entire evi¬dence during his examination in chief. Around 9 P.M., the O.I.C. of Anandapur Police Station being P.W.52 showed him a written paper and told him that is the F.I.R. and he gave signa¬ture thereto as requested by the O.I.C. This is the entire evi¬dence during his examination in chief. It appears from his evi¬dence during examination in chief that he never claimed to have recognized any of the miscreants involved in the incident. There¬fore, his evidence does not serve any purpose whatsoever for the prosecution so far as identify of the miscreants is concerned. But it must be mentioned here that in the F.I.R. names of large number of miscreants were mentioned. But none of them has been charge-sheeted in this case. It is true that names of none of the appellants were mentioned in the F.I.R. But in the F.I.R. itself it was stated by this witness that at the time of occurrence miscreants raised slogans saying “BAJRANGABALI ZINDABAD” AND DARA SINGH ZINDABAD”. Therefore, these slogans lend corroboration to the testimony of these eye witnesses who identified Dara Singh for the first time in the trial Court. 13. P.W.5 Sinigo Marandi has also figured in this case as an eye witness. In his evidence, he stated that he is a resident of village Manoharpur. A “Nagin dance” was held in their village in the night of Saraswati Puja in 1999. This dance started in the evening and he witnessed it along with other boys and girls of the village and his mother as well as Mukta Marandi. He witnessed the dance for about an hour and thereafter he slept at the veran¬dah of one Galu of their village. The “Nagin dance” was staged at a distance of about 200 ft. from the church. A cinema was exhib¬ited in front of the church before the “Nagin dance began.” When he was sleeping in the verandah of one Galu, his mother was sitting by his side, though time of occurrence was midnight during peak of the winter season. Who else could be termed as chance witnesses except this witness and his mother who were sleeping in the verandah of another man during peak of the winter night instead of sleeping in their own house ? This witness further stated in his evidence that at midnight his mother woke him up and then he saw something was burning near the church. This witness further stated in his evidence that at midnight his mother woke him up and then he saw something was burning near the church. He further found that a vehicle was moving towards the road and appellant Ojen and one Chenchu (not an accused in this case) came to this witness and his mother. They were carrying lathis and torch with their heads tied with red cloth. They advised this witness and his mother not to go near the fire as they would be exposed to the risk of being killed if they went near that place where some people who were brought by them were killing the Christians. They asked them not to disclose their names to any body. For this reason this witness and his mother went out of the village to the field situated nearby. Thereafter, he heard sound of blowing whistle thrice and the slogans like “JAI BAJRANG BALI” and “JAI DARA SINGH”. While pointing to appellant Ojen Hansda in the dock, he stated that a person of his appearance told him not to go near the fire. But his evidence that a person with appear¬ance resembling appellant Ojen Hansda had told him not to go near the fire does not amount to identification of the appellant Ojen Hansda. Therefore, this evidence to this effect does not help prosecution even with respect to Ojen Hansda. It further appears that at the time of occurrence he was prosecuting his studies at Cuttack and his mother was working as a labourer in Bhadrak. In these circumstances coupled with the fact that he was sleeping in verandah of another person with her mother sitting beside him till midnight during peak of the winter sounds highly incredible and he fulfils all the characters of a chance witness. 14. Next important eye witness is P.W.10 Nimai Hansda. As already seen during discussion of evidence of the aforesaid eye-witnesses, P.W.10 drove the vehicle carrying the luggage of Graham Staines and along with him they all reached Manoharpur in the evening from Baripada. It appears from his evidence that he is also an eye-witness of the occurrence. His evidence is also more or less similar to the evidence of other eye-witnesses already discussed except that he could not identify anybody. During his examination in chief, he clearly admitted that the could not identify any of the miscreants involved in the inci¬dent. It appears from his evidence that he is also an eye-witness of the occurrence. His evidence is also more or less similar to the evidence of other eye-witnesses already discussed except that he could not identify anybody. During his examination in chief, he clearly admitted that the could not identify any of the miscreants involved in the inci¬dent. Therefore, for the sake of brevity, we do not consider it necessary to discuss his evidence any more. However, it needs to be mentioned here that during the occurrence he heard the miscre¬ants raising slogans saying “JAI BAJRANG BALI” and “DARA SINGH JINDABAD”. Therefore, his evidence that the heard slogan in the name of Dara Singh corroborates evidence of other eye-witness who identified Dara Singh in the trial Court for the first time. 15. P.W.11 Bhakta Marandi is the next eye-witness of the occurrence. In his evidence he stated that in the night of 22.1.1999 Graham Staines and his two minor sons slept in a vehi¬cle and this witness himself slept in his house. In the mid-night his wife woke him up from sleep on hearing some bursting sound. On hearing this, he came out of the house and found 4/5 persons standing in front of his house holding lathis and torches. They were threatening that they would kill the persons whosoever dared to go that way. One of them threw a lathi to him. This witness retreated back to his house and went to his back yard and from there he went to the house of one Benjamin situated one house apart from the church. From there he saw number of persons in front of the church near the vehicle, and they were all armed with lathis and were holding torches. They were beating the vehicle with lathis. A slim and tall man was holding an axe. They set fire to one of the vehicles. Those persons had red clothes tied around their heads. Two/three persons poured petrol near the wheel of the vehicle. Some of them brought straw from a nearby straw heap and kept the same in the vehicle. They set fire to both the vehicles and both the vehicles were burnt. The miscreants blew whistle and raised slogan saying “JAI BAJARANG BALI” and “DARA SINGH JINDABAD” Then they left the place. The person holding the axe was also beating the vehicle with an axe and guiding other miscreants. They set fire to both the vehicles and both the vehicles were burnt. The miscreants blew whistle and raised slogan saying “JAI BAJARANG BALI” and “DARA SINGH JINDABAD” Then they left the place. The person holding the axe was also beating the vehicle with an axe and guiding other miscreants. This wit¬ness then pointed out the accused Dara Singh and accused Rajat Kumar Das in the dock and claimed that these two persons ever beating the vehicle and set fire on the vehicles. Accused Dara Singh had been identified as a slim and tall man holding an axe and he was guiding the other miscreants. He further claims that the Investigating Officer of the C.B.I. showed him photographs of some persons and he had identified two of the photographs as the miscreants. He put his signature on those photographs. M.O.I. is the photograph of accused Dara Singh standing in the dock. M.O. II is the photograph of accused Rajat Kumar Das in the dock. This is in short the evidence given by him. This part of the prosecution story as regards photo identification of these two appellants is also reiterated by the C.B.I. Investigating Officer (P.W.55). It needs to be mentioned here that accused Paul Murmu (P.W.3) also identified Dara Singh for the first time in the trial Court. In his evidence P.W.3 stated that Dara Singh was giving strokes on Graham Staines with a lathi. But P.W. 11 says that accused Dara Singh was holding an axe and with the axe he was beating the vehicle. However, in a dark night an axe may appear like a lathi or vice versa. The evidence that the Investigating Officer showed some photographs and he identified the same and the said two photographs were of accused Dara Singh and Rajat Kumar Das is inadmissible in evidence inasmuch as these statements are the statements before the Investigating Officer during Police Investigation and such statement are hit by Section 162, Cr.P.C. Section 162, Cr.P.C. clearly provides as to how statements made to a Police Officer in course of investigation should be used. Same cannot be used as evidence except for the purpose of contradiction. The evidence of this witness to the Instigating Officer with regard to identification by photographs sought to be proved by the prosecution amounts to statement made to a Police Officer in course of investigation. Same cannot be used as evidence except for the purpose of contradiction. The evidence of this witness to the Instigating Officer with regard to identification by photographs sought to be proved by the prosecution amounts to statement made to a Police Officer in course of investigation. Therefore, such evidence is clearly inadmissible in evidence. The evidence of other eye-witnesses also suffer from more or less same defect as regards identifica¬tion. The statement recorded under Section 161, Cr.P.C. cannot be used for any purpose except for the purpose as provided under Section 162, Cr.P.C. It may be used only for contradiction. The prosecution cannot contradict its own witness with his previous statement unless he is declared hostile and permission is ob¬tained from the trial Court to cross-examine him. Of course, if such statements amount to dying declaration though recorded u/s 161 Cr.P.C. same may be used as evidence. Surely identifications of the offenders by photographs before a police officer do not amount to dying declaration. Therefore, such statements are clearly hit by Section 162, Cr.P.C. and hence same are inadmissi¬ble in evidence. It is thus manifest from the aforesaid that this witness did not know accused Dara Singh or Rajat Kumar Das by name. He identified them for the first time in the trial Court. The evidence of identification by photographs before the Investi¬gating Officer being inadmissible, for the reasons stated above, the same is not available to lend corroboration to the identifi¬cation of these two accused before the trial Court for the first time. Needless to mention here that no test identification parade was held. Instead of adopting this novel method, as done by the Investigating Officer, it was open to him to place the photographs before the Judicial Magistrate and Judicial Magistrate could have been requested to hold a test identification parade of photo¬graphs of suspects and direct this witness to identify if any of the persons in the photographs were participants in the crime. That course was not followed by the Investigating Officer. Such lapses on the part of an elite investigating agency like C.B.I. cannot be excused. But he heard slogans in the name of Dara Singh. Eye witnesses are consistent about this story of slogan in the name of Dara Singh. This slogan was also mentioned in the F.I.R. Therefore, identification of Dara Singh is corroborated by the story of slogan raised in his name. But he heard slogans in the name of Dara Singh. Eye witnesses are consistent about this story of slogan in the name of Dara Singh. This slogan was also mentioned in the F.I.R. Therefore, identification of Dara Singh is corroborated by the story of slogan raised in his name. Though we accept his evidence as regards Dara Singh, we are unable to accept his evidence as regards identification of Rajat Kumar Das for want of proper corroboration to his identification. He further stated during his cross-examination that P.W. 15 Mathai Marandi and two others came to the place of occurrence after the miscreants left that place. He also did not report about the incident to them. This witness does not claim to have seen any one who arrived at the scene of occurrence while Bikram Marandi, Susna Marandi and P.W. 15 Mathai Marandi came there after the miscreants had left that place. He further stated that in the next morning police and Collector came to their village. Yet, this witness did not report about the incident he had seen either to the police or to the Collector. His statement was recorded for the first time by P.W.55 on 5.6.1999. It is also stated by him that the Investigat¬ing Officer of the C.B.I. brought some 20/25 photographs to his house for identification of the suspects and out of those photo¬graphs he identified only 2 photographs of appellants Dara Singh and Rajat Kumar Das and accordingly signed the said photographs. He further admitted that he did not know the names of the persons whose photographs he identified before the C.B.I. Investigating Officer, and also that he saw the man holding an axe for the first time during the occurrence. He further admits that he could learn the name of the accused Dara Singh when he was told by the Investigating Officer of the C.B.I. the day prior to the date on which his deposition was recorded before the trial Court. He was also told by the Investigating Officer of the C.B.I. that the name of the person in the photograph Ext. M.O. II is Rajat Das. There was an inordinate delay of about five months on his part to report about the incident to the police though a police camp was set up in the village in the very next morning after the incident and it was continued there for several months. M.O. II is Rajat Das. There was an inordinate delay of about five months on his part to report about the incident to the police though a police camp was set up in the village in the very next morning after the incident and it was continued there for several months. Apart from the police camp, several high level police officers including inves¬tigating officers and administrative officers were visiting the village of occurrence since the morning after the incident. Evi¬dence of such a witness is not at all reliable. His evidence with regard to identification of Dara Singh may be acceptable as the same is corroborated by the story of slogans raised in the name of Dara Singh. But we are unable to accept the identification of Rajat Das. 16. P.W.15 Mathai Marandi also figured in this case as an eye-witness. In his evidence he stated that on 20.1.1999 deceased Graham Staines along with 11 other including his two sons, name¬ly, Philip and Timothi visited village Manoharpur. Graham Staines along with two sons used to sleep during night in the vehicle parked in front of the church. In the night of 22nd January, 1999 when this witness was sleeping, his wife on hearing some bursting sound woke him up. P.W.15 Mathai then came out being attracted by some commotion and sound of beating and found 40/50 persons had gathered near the vehicle in front of the church and they were beating the vehicle with lathi. The miscreants were armed with lathis, axe, bows and arrows and torches. They were beating both the vehicles. He also heard cries of two sons of Graham Staines. When he advanced towards the vehicles, 3 or 4 persons focused torches at his face and as they threatened him with lathis, he repeated towards his house and went to the huts raised behind the church and called P.W. 10 Nimai Hansda, P.W.3 Paul Murmu, P.W.53 Pitter Murmu and others. When he again went to the place of occurrence near the vehicles, he found the miscreants setting fire to the vehicles. Miscreants pulled out straws from the top of the vehicles and put the same beneath the vehicles and set fire to them. Both the vehicles caught fire and were burnt. When he again went to the place of occurrence near the vehicles, he found the miscreants setting fire to the vehicles. Miscreants pulled out straws from the top of the vehicles and put the same beneath the vehicles and set fire to them. Both the vehicles caught fire and were burnt. He claims that he could identify Dara Singh, Dipu Das, Ojen Hansda and Mahadev and, accordingly, he identified them in the dock he further stated that the appellants he identified were beating the vehicles and appellant Dara Singh was holding an axe and he was directing others saying “MARBE, PITA BE”. He also claimed in his evidence that Ojen Hansda and Mahendra Hembram belonged to his village. But, he did not identify appellant Mahendra Hembram and, therefore, his evidence against Mahendra Hembram is of no conse¬quence. He also identified appellant Umakanta Bhoi in a T.I. parade conducted in Anandapur jail. Umakanta Bhoi is one of the miscreants who set fire to the vehicles. P.W. 10 Nimai Hansda tried to extinguish the fire with a bucket of water but he was also assaulted. He further stated in his evidence that after the vehicles were burnt, miscreants blew whistle thrice and raised slogans saying ‘JAI BAJRANG BALI, DARA SINGH JINDABAD’ and then left the place. However, during cross-examination he admitted “I have not stated before the local police that I could identify 4 persons from among the miscreants. I have not stated before Crime Branch I.O. that I could identify 4 persons from among the mis¬creants”. However, after the aforesaid statement, he immediately hastened to add an explanation saying, “As none of the I.Os asked me anything about the identification, I have not told before them that I could identify 4 of the miscreants.” This is too insuffi¬cient an explanation and hence it is bound to be rejected. He further admitted that he did not state in his statements before the investigating officers that appellant Umakanta Bhoi was also seen setting fire to the vehicles or that he saw some of the miscreants pulling straws from the “roof of vehicles, putting it beneath the vehicles near the wheel and setting fire to it”. During his cross-examination he conveniently failed to recollect if he had stated to the police that he had gone near the vehicle. During his cross-examination he conveniently failed to recollect if he had stated to the police that he had gone near the vehicle. He made most vital admission during his cross-examination with regard to appellant Umakanta Bhoi in the language as quoted hereunder :- “CBI officers had called me to the Anandapur camp and asked me whether I can identify accused Umakanta Bhoi and I told them in the affirmative. T.I. parade was conducted seven days thereafter at Anandapur jail and as per the date given by C.B.I. officers I went Anandapur jail to participate in the T.I. parade as a witness. The C.B.I. officers had shown me a bunch of photo¬graphs at their Anandapur camp the day they had called me there, i.e., seven days prior to T.I. parade. The photograph of Umakanta Bhoi was in that bunch.” 17. Therefore, seven days prior to T.I. parade in which this witness identified appellant Umakanta Bhoi, overzealous C.B.I. investigating officer (P.W.55) had shown this witness amongst others, a photograph of appellant Umakanta Bhoi. It further appears from the evidence of this witness that C.B.I. I.O. showed him a bunch of photographs and out of them he had signed three photos. But he could not say why he signed them. But, it appears from the evidence of P.W.55 that on being shown by P.W. 55, this witness (P.W.15) had identified photographs of different appellants. No Court of law, unless utterly over-credu¬lous, can act up on such evidence on a most important question as to the identification of the offenders. In these circum¬stances, we are constrained to observe that it was absolutely unfair and unethical on the part of the over zealous C.B.I. investigating officers to adopt such unheard of methods to pro¬cure tainted evidence to somehow procure conviction of the appel¬lants. Trial Court was also astonishingly over-credulous to act upon such evidence. This witness also gave evidence during the trial of juvenile offender Chenchu before the juvenile Court. It appears that in his evidence before the juvenile Court he did not state that the miscreants, who were beating the vehicles and setting fire to the same, were carrying lathis, axe, bows, arrows and torches or that he heard two minor sons of Graham Staines were crying or that he went near huts raised behind church and called P.Ws. It appears that in his evidence before the juvenile Court he did not state that the miscreants, who were beating the vehicles and setting fire to the same, were carrying lathis, axe, bows, arrows and torches or that he heard two minor sons of Graham Staines were crying or that he went near huts raised behind church and called P.Ws. Nimai, Paul, Pitter and other or that the miscreants pulled straws from the “roof of the vehicles and set it on fire” or that he again went to the P.O. and found the miscreants set¬ting the vehicles on fire or that appellant Dara Singh was hold¬ing an axe or that Nimai Hansda carried at bucket of water and he was assaulted or that miscreants raised slogans saying “DARA SINGH JINDABAD” and ‘JAI BAJARANGABALI’. He admitted that he did not tell anyone of his village that appellants Ojen Hansda and Mahendra Hembram were seen setting fire to the vehicles. He never saw Dara Singh before the occurrence. In his statements before the State Police Investigating Officer he had not state that 40/60 persons had gathered at the place of occurrence or that he went to the huts raised behind the church and called Nimai Hansda, Paul Murmu, Pitter Murmu and others or that he heard wailing sound of minor sons of Graham Staines or that the miscreants were holding axe, bow, arrow etc., or that when he came out some of the miscreants had focused torches on his face or that he saw the miscreants setting fire to the vehicles., It appears that he stated to State Police Investigating Officers that he found vehi¬cles on fire only. He also did not state to them that he saw miscreants pulling out straws from the “roof of the vehicle” and put them beneath the vehicle and lighted the same or that he would be able to identify some of the miscreants or that the appellants Ojen Hansda and Mahendra Hembram belong to his vil¬lage. It therefore appears that in view of the foresaid circum¬stances and his omission to mention all important aspects in his evidence including names of the appellants he identified before the trial Court in his previous statements recorded by as many as three investigating officers, it is absolutely unsafe to place any reliance on his evidence. 18. The next eye-witness is P.W.36 Raghunath Dohari. 18. The next eye-witness is P.W.36 Raghunath Dohari. In his evidence before the trial Court he stated that about 3 years prior to the date on which his evidence was recorded before the trial Court deceased Graham Staines visited the village Manoharpur by bus. Then he changed his version stating that the deceased Graham Staines visited Manoharpur in two vehicles. Both the vehicles were parked infront of the church. It was the day of Saraswati Puja. He slept in his house during the night. While so sleeping he heard sound of beating. Being attracted by such sound he got up from bed and went to the church where he could find a gathering of about 60/70 persons in front of the church, and they were beating the vehicles with sticks. They set fire to both the vehicles. They brought straw and set fire to the vehicles by lighting the straws. The witness then identified the appellants Dara Singh, Harish Chandra, Mahadev and Turam Ho as the miscre¬ants, who were there in the gathering and set fire to the vehi¬cles. This is, in brief, the gist of the evidence given by him during his examination in chief. During cross-examination he further stated that the deceased were burnt alive. He further admitted that he never disclosed the occurrence to anybody. Between his house and the church there were about 8/9 other houses. He also stated that he did not report about the incident to any of the villagers in the morning. In the next morning after the occurrence police party came and camped there for about one month. He never visited the Police Station or the C.B.I. camp at Ghasipura. He was brought to the Court by the C.B.I. officer on the date on which his deposition was recorded by the trial Court. The appellants whom he identified before the trial Court were standing in front of the vehicle at the time of occurrence. From the deposition of this witness, as recorded by the trial Court, it is not clear whether P.W.36 identified the four accused per¬sons by name and face or by face only. It is also not clear from his evidence as to whether these four accused were previously known to him. The four persons whom he identified set fire to the vehicles by lighting the straw. It is also not clear from his evidence as to whether these four accused were previously known to him. The four persons whom he identified set fire to the vehicles by lighting the straw. He further stated that he had not seen the four accused persons whom he had identified in the dock after the occurrence till the date of his deposition. He further stated that Ralia Soren, Mathai Marandi and Joseph Marandi came to the place of occurrence after the incident was over and the miscreants had left the scene of occurrence. He also stated that all these persons came about an hour after the miscreants left the scene of occurance. But P.W.15 Mathai Marandi clearly stated that he was present at the scene of occurrence and had himself witnessed the incident. In course of investigation the Investi¬gating Officer of the C.B.I., namely, P.W.55 alone recorded his statement under Section 161, Cr.P.C. on 30.5.1999. Before that he never reported the matter to the Police though it is admitted case of the prosecution witnesses that the police party arrived at the village in the very next morning after the incident and they camped there for several months. Apart from the police party, the Collector and other Police Officer also came to that place of occurrence. Yet, he did not report the incident the claims to have seen either to the police or to the Collector for about long 4 months. 19. P.W.55 being the C.B.I. Investigating Officer stated during cross-examination that the photographs of the suspects mixed with photographs of other persons were shown to the wit¬nesses including Raghunath Dohari in a test identification parade of photographs. This witness identified the photographs of the aforesaid appellants whom he identified in the trial Court. In the written notes of submission filed on behalf of the C.B.I. (see pages 68, 69 and 71 thereof) it is stated that photographs of suspects were not shown to this witness by P.W.55. But, this is belied by what the Investigating Officer (P.W.55) himself admitted at page 848 of the paper book. In the written notes of submission filed on behalf of the C.B.I. (see pages 68, 69 and 71 thereof) it is stated that photographs of suspects were not shown to this witness by P.W.55. But, this is belied by what the Investigating Officer (P.W.55) himself admitted at page 848 of the paper book. Such identification on the basis of photographs was held by P.W.55, being a statement made to the Investigating Officer in course of investigation, is inadmissible in evidence and hence such statements cannot be acted upon to lend corroboration to the identification of the appellants in the trial Court for the first time, particularly when they were not known to the witness. From this fact it is further evident that P.W.36 did not know the four accused persons by name or face as otherwise there was absolutely no justifica¬tion for the I.O. to hold photo identification parade of the suspects. It further appears from page 847 of the paper book that P.W.55 (I.O.) procured photographs of each of the suspects from the election office. It further appears from page 848 of the paper book where I.O. (P.W.55) admitted during his cross-examina¬tion that he showed photos of suspects to P.W.36 Raghunath Dohari on 30.5.1999 and he identified Dara Singh, Dipu and Andka Naik only. Rest were not identified by him. But in his evidence before the trial Court he identified only Dara Singh, Harish Chandra, Mahadev and Turam Ho. Prosecution has not come forward to explain this serious contradiction on the question of identi¬fication. Therefore, in the ultimate analysis we have no option but to reject his testimony as regards identification of some of the appellants before the trial Court for the first time. It is equally unsafe to act upon his evidence due to his belated dis¬closure of the incident to I.O. (P.W.55) about five and half months after the occurrence. JUDGMENT S. BARMAN ROY, C.J. : This Death Reference along with the Criminal Appeal of Dara Singh and other connected Jail Criminal Appeal and Criminal Appeals having arisen out of the same judg¬ment passed by the learned trial Court were heard analogously and are being disposed of by this common judgment. 2. This is a sensational case of triple murders of an Australian Christian Missionary, namely, Graham Stewart Staines and his two minor sons. 2. This is a sensational case of triple murders of an Australian Christian Missionary, namely, Graham Stewart Staines and his two minor sons. Among the appellants, convict Dara Singh alone was convicted under Section 302, IPC simpliciter and has been sentenced thereunder to death. Apart from the aforesaid, Dara Singh and all the appellants of the connected appeals have been convicted also under Sections 302/149, 120-B, 148, 435/149 and 436/149, IPC, and have been sentenced to various terms of imprisonment including imprisonment for life in respect of of¬fences under Sections 302/149 and 120-B, and 436/149, IPC. Apart from Dara Singh alias Rabindra Kumar Pal, other appellants, namely, Umakan¬ta Bhoi,Kartik Lohar, Rabi Soren, Mahadev Mahanta, Turam Ho, Dayanidhi Patra, Renta Hembram, Suresh Hansda alias Ojen, Mahen¬dra Hembram, Suratha Naik, Harish Chandra Mohanta, and Dipu alias Rajata Kumar Das were convicted and sentenced as already stated. 3. The prosecution case is that Graham Stewart Staines was a Christian Missionary from Australia and he was working in this State among the poor people and lepers. His two minor sons, namely, Phillip Staines, aged about 10 years and Timothy Staines, aged about 6 years were also brutally murdered. It needs to be stated here that appellant Dayanidhi Patra preferred two appeals against the same judgment, namely, Jail Criminal Appeal No.131 of 2003 and Criminal Appeal No.278 of 2003. 4. The incident of murders took place in the mid-night of 22.1.1999/23.1.1999. In this case, in all 55 P.Ws were examined on behalf of the prosecution. It appears that out of the said 55 P.Ws, 11 witnesses were examined as eye-witnesses for the prose¬cution. They are P.W.2, Basi Tudu, P.W.3, Paul Murmu, P.W.4, Ralia Soren, P.W.5, Sinigo Marandi, P.W.10, Nimai Hansda, P.W.11, Bhakta Marandi, P.W.15, Mathai Marandi, P.W.23 Joseph Marandi, P.W.36, Raghunath Dohari, P.W.39, Solemn Marandi and P.W.43, Lablal Tudu. Apart from the evidence of the aforesaid eye-witnesses, number of appellants made confessional statements. Prosecution also adduced evidence of criminal conspiracy against all the appellants. These are the three types of evidence, name¬ly, version of the eye-witnesses, confessional statements of number of appellants and evidence relating to criminal conspiracy that were relied upon by the prosecution before the trial Court, and acting upon such evidence the trial Court convicted and sentenced the appellants as already stated. 5. On behalf of the defence in all 25 witnesses were examined. 5. On behalf of the defence in all 25 witnesses were examined. Defence of the appellants in course of the trial was that of simple denial of the prosecution case as alleged. 6. It appears from the record of this case that all the accused were charged under Sections 120-B, 148, 435/149, 436/149 and 302/149, IPC. Apart from these charges, appellant Rabindra Kumar Pal alias Dara Singh was separately charged under Section 302, IPC. Only the appellant Rabindra Kumar Pal alias Dara Singh was convicted under Section 302 IPC simpliciter and was awarded sentence of death thereunder. All the appellants including the appellant Dara Singh were also convicted and sentenced as already stated. Death Reference No.1 of 2003 is a reference to this Court made by the trial Court under Section 366 of the Code of Criminal Procedure for confirmation of death sentence awarded to accused Rabindra Kumar Pal alias Dara Singh. 7. We will first deal with the evidence of eye-witnesses. On the basis of evidence of these eye-witnesses and also the con¬fessional statements allegedly made by some of the appellants, the appellant Dara Singh was convicted under Section 302 IPC and has been awarded sentence of death. Apart from this, all the appellants including appellant Dara Singh were further convicted under Sections 148, 435/149, 436/149, and Section 302/149, IPC on the basis of evidence of the eye witnesses and confessional state¬ments allegedly made by some of the appellants. They were also convicted under Section 120-B IPC and, accordingly, they were all sentenced to imprisonment for life on the basis of evidence relating to conspiracy. Therefore, we will first deal with the eye-witnesses and thereafter, we will proceed to examine the evidence furnished by the confessional statements allegedly made by some of the convict-appellants, and lastly we will take up the evidence relating to the charge under Section 120-B IPC. 8. Among the eye-witnesses P.W.2 Basi Tudu is the first eye-witness examined on behalf of the prosecution. In her evi¬dence she stated that she is Christian by faith. She knew the deceased Graham Stewart Staines for the last 15 years. Deceased Graham Stewart Staines used to visit Manoharpur church once in a year. He last visited the said church two years back on a Wednes¬day. He came there with his two minor sons, namely, Timothy Staines and Philip Staines. One Suvankar Ghosh also came with them. She knew the deceased Graham Stewart Staines for the last 15 years. Deceased Graham Stewart Staines used to visit Manoharpur church once in a year. He last visited the said church two years back on a Wednes¬day. He came there with his two minor sons, namely, Timothy Staines and Philip Staines. One Suvankar Ghosh also came with them. They were also accompanied by their driver. The luggage of Graham Stewart Staines were brought in another vehicle. Name of the said driver is Nimai Hansda (P.W.10); The vehicle carrying the luggage was driven by P.W. 10 Nimai Hansda and the other vehicle was driven by Graham Staines himself. The driver Nimai Hansda also used to cook food for Graham Staines. In the night of occurrence, Graham Staines with his two minor sons slept inside one of the vehicles. The said vehicle was parked in front of the church. 9. The occurrence took place on 22.1.1999 at about 12 mid-night. Hearing some dogs barking, she woke up and came out from her house when she found about 60 persons were proceeding along the passage by the side of her house towards the church. Among them she could identify one Chenchu. However, the said Chenchu is not before us in any of these appeals and the Death Reference Case. It appears from her evidence that in the trial Court she first identified an accused by face whose name is Rajat Kumar Das. However, when this witness was brought to the middle of the Court-room to have a better view of the accused persons, she could identify one appellant by face whose name is Ojen Hansda alias Suresh Hansda. Instead of identifying accused-appellant Rajat Kumar Das, she pointed out Ojen Hansda as the person whom she saw among the aforesaid 60 persons. It is, therefore, evident that she did not know Ojen Hansda alias Suresh Hansda by name. She identified Suresh Hansda for the first time in the Court by face only. She also stated that these 60 persons were holding torch-lights and lathis. At that time appellant Suresh alias Ojen Hansda had tied his head with a piece of red cloth. Others did not tie their heads with any cloth. When she wanted to know from them as to whether they were proceeding for a dance or for hunt¬ing, the miscreants did not give any reply whatsoever. At that time appellant Suresh alias Ojen Hansda had tied his head with a piece of red cloth. Others did not tie their heads with any cloth. When she wanted to know from them as to whether they were proceeding for a dance or for hunt¬ing, the miscreants did not give any reply whatsoever. After that, she went back to her bed. Soon after that, she could hear bursting sound and on hearing such sound she again came out of her house. However, the aforesaid miscreants did not allow her to proceed further. Then she went to the thrashing floor and from the thrashing floor she found that these miscreants had surround¬ed the vehicle of Graham Staines and she could see them setting fire to the said vehicle and accordingly, Graham Staines and his two minor sons were burnt to death. The people who had surrounded the vehicle raised slogans saying “JAI BAJARANGA BALI” and “DARA SINGH JINDABAD”. This is in brief what she has stated in her examination in chief. 10. It appears from the evidence on record that of all the appellants, she could identify only appellant Suresh Hansda alias Ojen by face for the first time before the trial Court. No.T.I. Parade was held to enable her to identify Suresh Hansda. There¬fore, her identification of Suresh Hansda alias Ojen by face during trial was not corroborated by any previously held test identification parade. In course of the investigation, her state¬ments were first recorded by the Crime Branch of the State Police on 4.2.1999. Investigation of the case was later on taken up by the C.B.I. Her statement was again recorded on 5.6.1999 by the C.B.I. Investigating Officer, namely, P.W.55. It is the admitted case that in none of these statements recorded by the two Inves¬tigating Officers, she ever disclosed the name of Ojen alias Suresh Hansda. During her cross-examination she further admitted that there was no moon in the sky at that time. But, she claims to have identified the appellant Suresh Hansda alias Ojen Hansda by the light of the lamp locally called Dibri which she had kept on the verandah. It must be mentioned here that it was mid-night during the pick up the winter season. She claims to have kept a lamp in the verandah when she was sleeping inside her house. It must be mentioned here that it was mid-night during the pick up the winter season. She claims to have kept a lamp in the verandah when she was sleeping inside her house. Reason for keeping a lighted lamp (Dibri) in the verandah at midnight is not understood. The question whether any reliance can be placed on such evidence of this witness where she identified the accused Ojen Hansda alias Suresh Hansda for the first time in the trial Court without being corroborated by any previously held test identification parade will be dealt with later while dealing with the evidence of all the eye-witnesses together inasmuch as the evidence of all the eye-witnesses suffer from same defect. So far as other appellants are concerned, the evidence of this witness virtually contains nothing. She also admitted during her cross-examination that she could not identify any of the persons who had surrounded the vehicle of Graham Staines and set it ablaze. Her belated disclosure of the incident as seen by her to the police is another circumstance against her credibility though a huge police party was camping in the village for several months since the morning after the incident. 11. P.W.3 Paul Murmu is the next eye-witness for the prosecution. He stated in his evidence that he was converted to Christianity in the year 1997. He knew the deceased Graham Staines since 1972. He used to accompany Graham Staines to dif¬ferent places. He last accompanied Graham Staines during his visit to Manoharpur on 20.1.1999. They started together on that day from Baripada in two vehicles. They were in all 11 persons together including Graham Staines and his driver. He was travell¬ing in the vehicle No.1208 (a jeep) along with Pittar Murmu, Bayu Hembram and driver Nimai Hansda (P.W. 10). Along with Graham Staines his two minor sons, namely, Timothy and Philip (both deceased) and three other persons from Cuttack, namely, Suvankar Ghosh, Pittak Khugi and another were travelling in vehicle bear¬ing No.952. They reached Manoharpur in the evening. Three huts were constructed for them just behind the church. In the first hut, Pittar Khugi and the person from Cuttack stayed. The driver Nimai Hansda (P.W.10); and Bayu Hembram stayed in the second hut. This witness himself along with P.W.5 Pittar Murmu stayed in the third hut. Graham Staines and his two minor sons slept inside vehicle No.1208 in front of the church. In the first hut, Pittar Khugi and the person from Cuttack stayed. The driver Nimai Hansda (P.W.10); and Bayu Hembram stayed in the second hut. This witness himself along with P.W.5 Pittar Murmu stayed in the third hut. Graham Staines and his two minor sons slept inside vehicle No.1208 in front of the church. Both the vehicles were parked in front of the church. It is stated by him in his evi¬dence that whenever Graham Staines used to visit Manoharpur he used to sleep inside the vehicle. That night “Nagin Dance” was performed at a distance of about 250 cubits from the church. Around 12.30 A.M. P.W.10 Nimai Hansda suddenly woke him up from to sleep and simultaneously he heard sounds of beating the vehi¬cles parked in front of the church. Soon after that, this witness along with P.W.10 Nimai Hansda went near the church and found some 60/70 persons putting straw below the vehicle No.952 and setting it on fire. As P.W.10 Nimai Hansda proceeded towards the said vehicle No.952, he was assaulted by these people. Three persons were also found pulling the door of vehicle No.1208 in which Graham Staines and his two minor sons were sleeping. They pulled out the handle of the vehicle door but could not open the door. These three persons broke the glass pans of the vehicle in which Graham Staines and his two minor sons were sleeping and gave strokes to Graham Staines and his two sons with sticks. They also focussed the torch into the vehicle. One of them was a bearded man. This witness then pointed out to accused Dara Singh alias Rabindra Kumar Pal in the dock saying that the bearded man resembled like the person whom this witness had seen at the scene of occurrence. Other two persons who were trying to open the door of the vehicle and were giving blows with lathis could not be identified by him. It, therefore, appears from his evidence that this witness found accused Dara Singh to resemble one of the assailants. They pulled straw which were kept on the top of the vehicle and put them below the vehicle and set fire to the same. A person of short stature set the straw and the vehicle ablaze. Thereafter, they raised slogans saying “JAI BAJARANG BALI” and “DARA SINGH JINDABAD”. They had also blew whistle thrice. They pulled straw which were kept on the top of the vehicle and put them below the vehicle and set fire to the same. A person of short stature set the straw and the vehicle ablaze. Thereafter, they raised slogans saying “JAI BAJARANG BALI” and “DARA SINGH JINDABAD”. They had also blew whistle thrice. That incident occurred in the mid-night of 22.1.1999. On the question of identification of appellant Dara Singh for the first time in the trial Court by this witness, his evidence reads as follows : “They were focusing torch into the vehicle. One of them was having a beard. The witness points out to accused Dara Singh in the dock saying that the bearded man resembled like him (Dara Singh). I am not able to identify if the other two are in the dock.” After the whistle was blown thrice, he became unconscious as he saw that he vehicle in which Graham Staines and his two minor sons were sleeping was on fire. After he regained consciousness, this witness along with others tried to extinguish the fire by pouring water, but the fire could not be extinguished. After the fire subsided he could find the charred bodies of Graham Staines and his two sons inside the vehicle and burnt head of one of the sons of Graham Staines, namely, Philip was severed from the body and was lying on the ground. The charred body of Timothy was lying in the vehicle with the head on the hand of charred body of Graham Staines. This is in brief what this witness had stated during his examination in chief. It further appears from the evidence of this witness during cross-examination and the evi¬dence of the Investigating Officer that this witness in his statements given to the three Investigating Officers on three different dates never alleged that one of the miscreants was a bearded man. He further stated that he saw the occurrence from a distance of 5/6 cubits. He also never stated in his previous statement that P.W.10 Nimai Hansda accompanied him to the church at the time of occurrence. He further stated that he saw the occurrence from a distance of 5/6 cubits. He also never stated in his previous statement that P.W.10 Nimai Hansda accompanied him to the church at the time of occurrence. He never made any such statement to the Investigating Officer that the three persons including a bearded man gave strokes to Graham Staines and his two sons with lathis or that they flashed torches into the vehicle.He also never stated to the Investigating Officer that head of Timothy was served and was laying beneath the vehicle. This is in short the evidence given by him before the trial Court. It needs to be mentioned that statement of this witness was recorded by the Investigating Officer of the State Police on 23.1.1999. Again he was examined on 10.2.1999 by the Investigating Officer of the Crime Branch of the State Police. Subsequently, on 20.4.1999 his statement was recorded by the C.B.I. Investigating Officer (P.W.55). In none of these statements he claimed that one of the miscreants was a bearded man and nowhere he disclosed the name of Dara Singh alias Rabindra Kumar Pal. It is true that generally speaking identification of an unknown accused for the first time before the trial Court is of no value unless corroborated by previously held T.I. Parade. But, in exceptional cases departure from this general rule of prudence is permissible. Almost all the eye-witnesses consistently stated that during occurrence miscre¬ants raised slogans in the name of Dara Singh. The story of this slogan was also mentioned in F.I.R. lodged soon after the occur¬rence. Therefore, this slogan in the name of Dara Singh corrobo¬rates his identification before the trial Court for the first time. 12. P.W. 4 Ralia Soren is the next eye-witness for the prosecution. In his evidence he stated that he knew deceased Graham Staines since preceding 20 years. Graham Staines had two minor sons and a daughter. Deceased Philip and Timothy were his two minor sons. Graham Staines visited Manoharpur last on 20.1.1999. He was accompanied by his two sons and others like Giliburt, Suvankar Ghosh, Swain and Khadi Babu. None of them had been examined in this case as witness. They all came in one vehi¬cle. Some travelled in another vehicle in which P.W.10 Nimai Hansda, Bayu Hembram, Pittar Murmu, P.W.3 Paul Murmu accompanied Graham Staines. They reached Manoharpur in the evening. He was accompanied by his two sons and others like Giliburt, Suvankar Ghosh, Swain and Khadi Babu. None of them had been examined in this case as witness. They all came in one vehi¬cle. Some travelled in another vehicle in which P.W.10 Nimai Hansda, Bayu Hembram, Pittar Murmu, P.W.3 Paul Murmu accompanied Graham Staines. They reached Manoharpur in the evening. This wit¬ness met Graham Staines and other persons accompanying him soon after their arrival at Manoharpur. After arrival there, Graham Staines along with his two minor sons slept in the vehicle bear¬ing No. 1208 and it was parked in front of the church. The other vehicle No.952 was also parked in front of the church. In the evening of 21.1.1999 a film relating to the life of Jesus Christ was exhibited in front of the church. In that night also Graham Staines and his two minors sons slept in the vehicle bearing No.1208. Again in the evening of 22.1.1999 a film on the life of Jesus Christ was screened in front of the church. Dinner was taken by them around 9 P.M. and Graham Staines and his two minor sons slept inside the vehicle bearing No.1208. His (P.W.4) house is situated to the south of the church intervened by four other houses. The vehicles parked in front of the church were visible from the road in front of his house. In the night of occurrence on 22.1.1999 this witness slept in his house after dinner. His wife was sleeping in another room. His wife woke him up from sleep and said that sound of large number of people going towards the church with lathis and torches was heard. He then came out and hardly walked 100 ft. towards the vehicle when he could find large number of people giving lathi blows on the vehicle in which Graham Staines and his two minor sons slept. Other vehicle bear¬ing No.952 was also set on fire. Three to four persons belonging to that group caught hold of his collar and restrained this witness from proceeding further. They focused torch light on his face and threatened him with lathis not to call anybody or raise any alarm. He admits that he could not recognize any of them as they kept their heads covered with caps and faces by mufflers. At that time Barial Marandi (not examined in this case) was running towards him. They focused torch light on his face and threatened him with lathis not to call anybody or raise any alarm. He admits that he could not recognize any of them as they kept their heads covered with caps and faces by mufflers. At that time Barial Marandi (not examined in this case) was running towards him. Then he went back and took the route to the church through his backyard. He called Christian people of the street, but none responded. He along with Barial Marandi then went to the Grama Rakhi at Panasadiha. However, the Grama Rakhi declined to come out during night. Then they went to Tulasibani and called the Christian people of the village. Five of them came with this witness to Manoharpur. When they reached near the church, they found that both the vehicles were burnt, and Graham Staines and his two sons were burnt to death. Thereafter this witness along with some others went to the house of one Pradipta Das (not examined) and reported him about the incident and from there all of them went to Thakurmunda Police Station. They went straight to the residence of the O.I.C. of the said Police Station and woke him up. As Manoharpur village is situated under the jurisdiction of Anandpur police station which is situated at a distance of 50 kilometers from Manoharpur, they requested the O.I.C. of Thakurmunda Police Station to report the incident to Anandapur Police Station, the Superintendent of Police and the Collector of the district. Later on, this witness along with Pradipta Das from a telephone booth informed the Superintendent of Police and the Collector of the district about the incident. Thereafter this witness along with others and P.W.23 Joseph Marandi boarded a bus for Anandapur. They could arrive at Anandapur on the next day at 8.20 A.M. When he reached the Police Station as he had already left for Manoharpur. The police personnel available at Anandapur Police Station arranged for their transport by a private jeep to Manoharpur and after reaching Manoharpur at about noon time, they found that the police personnel had already arrived there. Around 9 P.M., the O.I.C. of Anandapur Police Station being P.W.52 showed him a written paper and told him that is the F.I.R. and he gave signa¬ture thereto as requested by the O.I.C. This is the entire evi¬dence during his examination in chief. Around 9 P.M., the O.I.C. of Anandapur Police Station being P.W.52 showed him a written paper and told him that is the F.I.R. and he gave signa¬ture thereto as requested by the O.I.C. This is the entire evi¬dence during his examination in chief. It appears from his evi¬dence during examination in chief that he never claimed to have recognized any of the miscreants involved in the incident. There¬fore, his evidence does not serve any purpose whatsoever for the prosecution so far as identify of the miscreants is concerned. But it must be mentioned here that in the F.I.R. names of large number of miscreants were mentioned. But none of them has been charge-sheeted in this case. It is true that names of none of the appellants were mentioned in the F.I.R. But in the F.I.R. itself it was stated by this witness that at the time of occurrence miscreants raised slogans saying “BAJRANGABALI ZINDABAD” AND DARA SINGH ZINDABAD”. Therefore, these slogans lend corroboration to the testimony of these eye witnesses who identified Dara Singh for the first time in the trial Court. 13. P.W.5 Sinigo Marandi has also figured in this case as an eye witness. In his evidence, he stated that he is a resident of village Manoharpur. A “Nagin dance” was held in their village in the night of Saraswati Puja in 1999. This dance started in the evening and he witnessed it along with other boys and girls of the village and his mother as well as Mukta Marandi. He witnessed the dance for about an hour and thereafter he slept at the veran¬dah of one Galu of their village. The “Nagin dance” was staged at a distance of about 200 ft. from the church. A cinema was exhib¬ited in front of the church before the “Nagin dance began.” When he was sleeping in the verandah of one Galu, his mother was sitting by his side, though time of occurrence was midnight during peak of the winter season. Who else could be termed as chance witnesses except this witness and his mother who were sleeping in the verandah of another man during peak of the winter night instead of sleeping in their own house ? This witness further stated in his evidence that at midnight his mother woke him up and then he saw something was burning near the church. This witness further stated in his evidence that at midnight his mother woke him up and then he saw something was burning near the church. He further found that a vehicle was moving towards the road and appellant Ojen and one Chenchu (not an accused in this case) came to this witness and his mother. They were carrying lathis and torch with their heads tied with red cloth. They advised this witness and his mother not to go near the fire as they would be exposed to the risk of being killed if they went near that place where some people who were brought by them were killing the Christians. They asked them not to disclose their names to any body. For this reason this witness and his mother went out of the village to the field situated nearby. Thereafter, he heard sound of blowing whistle thrice and the slogans like “JAI BAJRANG BALI” and “JAI DARA SINGH”. While pointing to appellant Ojen Hansda in the dock, he stated that a person of his appearance told him not to go near the fire. But his evidence that a person with appear¬ance resembling appellant Ojen Hansda had told him not to go near the fire does not amount to identification of the appellant Ojen Hansda. Therefore, this evidence to this effect does not help prosecution even with respect to Ojen Hansda. It further appears that at the time of occurrence he was prosecuting his studies at Cuttack and his mother was working as a labourer in Bhadrak. In these circumstances coupled with the fact that he was sleeping in verandah of another person with her mother sitting beside him till midnight during peak of the winter sounds highly incredible and he fulfils all the characters of a chance witness. 14. Next important eye witness is P.W.10 Nimai Hansda. As already seen during discussion of evidence of the aforesaid eye-witnesses, P.W.10 drove the vehicle carrying the luggage of Graham Staines and along with him they all reached Manoharpur in the evening from Baripada. It appears from his evidence that he is also an eye-witness of the occurrence. His evidence is also more or less similar to the evidence of other eye-witnesses already discussed except that he could not identify anybody. During his examination in chief, he clearly admitted that the could not identify any of the miscreants involved in the inci¬dent. It appears from his evidence that he is also an eye-witness of the occurrence. His evidence is also more or less similar to the evidence of other eye-witnesses already discussed except that he could not identify anybody. During his examination in chief, he clearly admitted that the could not identify any of the miscreants involved in the inci¬dent. Therefore, for the sake of brevity, we do not consider it necessary to discuss his evidence any more. However, it needs to be mentioned here that during the occurrence he heard the miscre¬ants raising slogans saying “JAI BAJRANG BALI” and “DARA SINGH JINDABAD”. Therefore, his evidence that the heard slogan in the name of Dara Singh corroborates evidence of other eye-witness who identified Dara Singh in the trial Court for the first time. 15. P.W.11 Bhakta Marandi is the next eye-witness of the occurrence. In his evidence he stated that in the night of 22.1.1999 Graham Staines and his two minor sons slept in a vehi¬cle and this witness himself slept in his house. In the mid-night his wife woke him up from sleep on hearing some bursting sound. On hearing this, he came out of the house and found 4/5 persons standing in front of his house holding lathis and torches. They were threatening that they would kill the persons whosoever dared to go that way. One of them threw a lathi to him. This witness retreated back to his house and went to his back yard and from there he went to the house of one Benjamin situated one house apart from the church. From there he saw number of persons in front of the church near the vehicle, and they were all armed with lathis and were holding torches. They were beating the vehicle with lathis. A slim and tall man was holding an axe. They set fire to one of the vehicles. Those persons had red clothes tied around their heads. Two/three persons poured petrol near the wheel of the vehicle. Some of them brought straw from a nearby straw heap and kept the same in the vehicle. They set fire to both the vehicles and both the vehicles were burnt. The miscreants blew whistle and raised slogan saying “JAI BAJARANG BALI” and “DARA SINGH JINDABAD” Then they left the place. The person holding the axe was also beating the vehicle with an axe and guiding other miscreants. They set fire to both the vehicles and both the vehicles were burnt. The miscreants blew whistle and raised slogan saying “JAI BAJARANG BALI” and “DARA SINGH JINDABAD” Then they left the place. The person holding the axe was also beating the vehicle with an axe and guiding other miscreants. This wit¬ness then pointed out the accused Dara Singh and accused Rajat Kumar Das in the dock and claimed that these two persons ever beating the vehicle and set fire on the vehicles. Accused Dara Singh had been identified as a slim and tall man holding an axe and he was guiding the other miscreants. He further claims that the Investigating Officer of the C.B.I. showed him photographs of some persons and he had identified two of the photographs as the miscreants. He put his signature on those photographs. M.O.I. is the photograph of accused Dara Singh standing in the dock. M.O. II is the photograph of accused Rajat Kumar Das in the dock. This is in short the evidence given by him. This part of the prosecution story as regards photo identification of these two appellants is also reiterated by the C.B.I. Investigating Officer (P.W.55). It needs to be mentioned here that accused Paul Murmu (P.W.3) also identified Dara Singh for the first time in the trial Court. In his evidence P.W.3 stated that Dara Singh was giving strokes on Graham Staines with a lathi. But P.W. 11 says that accused Dara Singh was holding an axe and with the axe he was beating the vehicle. However, in a dark night an axe may appear like a lathi or vice versa. The evidence that the Investigating Officer showed some photographs and he identified the same and the said two photographs were of accused Dara Singh and Rajat Kumar Das is inadmissible in evidence inasmuch as these statements are the statements before the Investigating Officer during Police Investigation and such statement are hit by Section 162, Cr.P.C. Section 162, Cr.P.C. clearly provides as to how statements made to a Police Officer in course of investigation should be used. Same cannot be used as evidence except for the purpose of contradiction. The evidence of this witness to the Instigating Officer with regard to identification by photographs sought to be proved by the prosecution amounts to statement made to a Police Officer in course of investigation. Same cannot be used as evidence except for the purpose of contradiction. The evidence of this witness to the Instigating Officer with regard to identification by photographs sought to be proved by the prosecution amounts to statement made to a Police Officer in course of investigation. Therefore, such evidence is clearly inadmissible in evidence. The evidence of other eye-witnesses also suffer from more or less same defect as regards identifica¬tion. The statement recorded under Section 161, Cr.P.C. cannot be used for any purpose except for the purpose as provided under Section 162, Cr.P.C. It may be used only for contradiction. The prosecution cannot contradict its own witness with his previous statement unless he is declared hostile and permission is ob¬tained from the trial Court to cross-examine him. Of course, if such statements amount to dying declaration though recorded u/s 161 Cr.P.C. same may be used as evidence. Surely identifications of the offenders by photographs before a police officer do not amount to dying declaration. Therefore, such statements are clearly hit by Section 162, Cr.P.C. and hence same are inadmissi¬ble in evidence. It is thus manifest from the aforesaid that this witness did not know accused Dara Singh or Rajat Kumar Das by name. He identified them for the first time in the trial Court. The evidence of identification by photographs before the Investi¬gating Officer being inadmissible, for the reasons stated above, the same is not available to lend corroboration to the identifi¬cation of these two accused before the trial Court for the first time. Needless to mention here that no test identification parade was held. Instead of adopting this novel method, as done by the Investigating Officer, it was open to him to place the photographs before the Judicial Magistrate and Judicial Magistrate could have been requested to hold a test identification parade of photo¬graphs of suspects and direct this witness to identify if any of the persons in the photographs were participants in the crime. That course was not followed by the Investigating Officer. Such lapses on the part of an elite investigating agency like C.B.I. cannot be excused. But he heard slogans in the name of Dara Singh. Eye witnesses are consistent about this story of slogan in the name of Dara Singh. This slogan was also mentioned in the F.I.R. Therefore, identification of Dara Singh is corroborated by the story of slogan raised in his name. But he heard slogans in the name of Dara Singh. Eye witnesses are consistent about this story of slogan in the name of Dara Singh. This slogan was also mentioned in the F.I.R. Therefore, identification of Dara Singh is corroborated by the story of slogan raised in his name. Though we accept his evidence as regards Dara Singh, we are unable to accept his evidence as regards identification of Rajat Kumar Das for want of proper corroboration to his identification. He further stated during his cross-examination that P.W. 15 Mathai Marandi and two others came to the place of occurrence after the miscreants left that place. He also did not report about the incident to them. This witness does not claim to have seen any one who arrived at the scene of occurrence while Bikram Marandi, Susna Marandi and P.W. 15 Mathai Marandi came there after the miscreants had left that place. He further stated that in the next morning police and Collector came to their village. Yet, this witness did not report about the incident he had seen either to the police or to the Collector. His statement was recorded for the first time by P.W.55 on 5.6.1999. It is also stated by him that the Investigat¬ing Officer of the C.B.I. brought some 20/25 photographs to his house for identification of the suspects and out of those photo¬graphs he identified only 2 photographs of appellants Dara Singh and Rajat Kumar Das and accordingly signed the said photographs. He further admitted that he did not know the names of the persons whose photographs he identified before the C.B.I. Investigating Officer, and also that he saw the man holding an axe for the first time during the occurrence. He further admits that he could learn the name of the accused Dara Singh when he was told by the Investigating Officer of the C.B.I. the day prior to the date on which his deposition was recorded before the trial Court. He was also told by the Investigating Officer of the C.B.I. that the name of the person in the photograph Ext. M.O. II is Rajat Das. There was an inordinate delay of about five months on his part to report about the incident to the police though a police camp was set up in the village in the very next morning after the incident and it was continued there for several months. M.O. II is Rajat Das. There was an inordinate delay of about five months on his part to report about the incident to the police though a police camp was set up in the village in the very next morning after the incident and it was continued there for several months. Apart from the police camp, several high level police officers including inves¬tigating officers and administrative officers were visiting the village of occurrence since the morning after the incident. Evi¬dence of such a witness is not at all reliable. His evidence with regard to identification of Dara Singh may be acceptable as the same is corroborated by the story of slogans raised in the name of Dara Singh. But we are unable to accept the identification of Rajat Das. 16. P.W.15 Mathai Marandi also figured in this case as an eye-witness. In his evidence he stated that on 20.1.1999 deceased Graham Staines along with 11 other including his two sons, name¬ly, Philip and Timothi visited village Manoharpur. Graham Staines along with two sons used to sleep during night in the vehicle parked in front of the church. In the night of 22nd January, 1999 when this witness was sleeping, his wife on hearing some bursting sound woke him up. P.W.15 Mathai then came out being attracted by some commotion and sound of beating and found 40/50 persons had gathered near the vehicle in front of the church and they were beating the vehicle with lathi. The miscreants were armed with lathis, axe, bows and arrows and torches. They were beating both the vehicles. He also heard cries of two sons of Graham Staines. When he advanced towards the vehicles, 3 or 4 persons focused torches at his face and as they threatened him with lathis, he repeated towards his house and went to the huts raised behind the church and called P.W. 10 Nimai Hansda, P.W.3 Paul Murmu, P.W.53 Pitter Murmu and others. When he again went to the place of occurrence near the vehicles, he found the miscreants setting fire to the vehicles. Miscreants pulled out straws from the top of the vehicles and put the same beneath the vehicles and set fire to them. Both the vehicles caught fire and were burnt. When he again went to the place of occurrence near the vehicles, he found the miscreants setting fire to the vehicles. Miscreants pulled out straws from the top of the vehicles and put the same beneath the vehicles and set fire to them. Both the vehicles caught fire and were burnt. He claims that he could identify Dara Singh, Dipu Das, Ojen Hansda and Mahadev and, accordingly, he identified them in the dock he further stated that the appellants he identified were beating the vehicles and appellant Dara Singh was holding an axe and he was directing others saying “MARBE, PITA BE”. He also claimed in his evidence that Ojen Hansda and Mahendra Hembram belonged to his village. But, he did not identify appellant Mahendra Hembram and, therefore, his evidence against Mahendra Hembram is of no conse¬quence. He also identified appellant Umakanta Bhoi in a T.I. parade conducted in Anandapur jail. Umakanta Bhoi is one of the miscreants who set fire to the vehicles. P.W. 10 Nimai Hansda tried to extinguish the fire with a bucket of water but he was also assaulted. He further stated in his evidence that after the vehicles were burnt, miscreants blew whistle thrice and raised slogans saying ‘JAI BAJRANG BALI, DARA SINGH JINDABAD’ and then left the place. However, during cross-examination he admitted “I have not stated before the local police that I could identify 4 persons from among the miscreants. I have not stated before Crime Branch I.O. that I could identify 4 persons from among the mis¬creants”. However, after the aforesaid statement, he immediately hastened to add an explanation saying, “As none of the I.Os asked me anything about the identification, I have not told before them that I could identify 4 of the miscreants.” This is too insuffi¬cient an explanation and hence it is bound to be rejected. He further admitted that he did not state in his statements before the investigating officers that appellant Umakanta Bhoi was also seen setting fire to the vehicles or that he saw some of the miscreants pulling straws from the “roof of vehicles, putting it beneath the vehicles near the wheel and setting fire to it”. During his cross-examination he conveniently failed to recollect if he had stated to the police that he had gone near the vehicle. During his cross-examination he conveniently failed to recollect if he had stated to the police that he had gone near the vehicle. He made most vital admission during his cross-examination with regard to appellant Umakanta Bhoi in the language as quoted hereunder :- “CBI officers had called me to the Anandapur camp and asked me whether I can identify accused Umakanta Bhoi and I told them in the affirmative. T.I. parade was conducted seven days thereafter at Anandapur jail and as per the date given by C.B.I. officers I went Anandapur jail to participate in the T.I. parade as a witness. The C.B.I. officers had shown me a bunch of photo¬graphs at their Anandapur camp the day they had called me there, i.e., seven days prior to T.I. parade. The photograph of Umakanta Bhoi was in that bunch.” 17. Therefore, seven days prior to T.I. parade in which this witness identified appellant Umakanta Bhoi, overzealous C.B.I. investigating officer (P.W.55) had shown this witness amongst others, a photograph of appellant Umakanta Bhoi. It further appears from the evidence of this witness that C.B.I. I.O. showed him a bunch of photographs and out of them he had signed three photos. But he could not say why he signed them. But, it appears from the evidence of P.W.55 that on being shown by P.W. 55, this witness (P.W.15) had identified photographs of different appellants. No Court of law, unless utterly over-credu¬lous, can act up on such evidence on a most important question as to the identification of the offenders. In these circum¬stances, we are constrained to observe that it was absolutely unfair and unethical on the part of the over zealous C.B.I. investigating officers to adopt such unheard of methods to pro¬cure tainted evidence to somehow procure conviction of the appel¬lants. Trial Court was also astonishingly over-credulous to act upon such evidence. This witness also gave evidence during the trial of juvenile offender Chenchu before the juvenile Court. It appears that in his evidence before the juvenile Court he did not state that the miscreants, who were beating the vehicles and setting fire to the same, were carrying lathis, axe, bows, arrows and torches or that he heard two minor sons of Graham Staines were crying or that he went near huts raised behind church and called P.Ws. It appears that in his evidence before the juvenile Court he did not state that the miscreants, who were beating the vehicles and setting fire to the same, were carrying lathis, axe, bows, arrows and torches or that he heard two minor sons of Graham Staines were crying or that he went near huts raised behind church and called P.Ws. Nimai, Paul, Pitter and other or that the miscreants pulled straws from the “roof of the vehicles and set it on fire” or that he again went to the P.O. and found the miscreants set¬ting the vehicles on fire or that appellant Dara Singh was hold¬ing an axe or that Nimai Hansda carried at bucket of water and he was assaulted or that miscreants raised slogans saying “DARA SINGH JINDABAD” and ‘JAI BAJARANGABALI’. He admitted that he did not tell anyone of his village that appellants Ojen Hansda and Mahendra Hembram were seen setting fire to the vehicles. He never saw Dara Singh before the occurrence. In his statements before the State Police Investigating Officer he had not state that 40/60 persons had gathered at the place of occurrence or that he went to the huts raised behind the church and called Nimai Hansda, Paul Murmu, Pitter Murmu and others or that he heard wailing sound of minor sons of Graham Staines or that the miscreants were holding axe, bow, arrow etc., or that when he came out some of the miscreants had focused torches on his face or that he saw the miscreants setting fire to the vehicles., It appears that he stated to State Police Investigating Officers that he found vehi¬cles on fire only. He also did not state to them that he saw miscreants pulling out straws from the “roof of the vehicle” and put them beneath the vehicle and lighted the same or that he would be able to identify some of the miscreants or that the appellants Ojen Hansda and Mahendra Hembram belong to his vil¬lage. It therefore appears that in view of the foresaid circum¬stances and his omission to mention all important aspects in his evidence including names of the appellants he identified before the trial Court in his previous statements recorded by as many as three investigating officers, it is absolutely unsafe to place any reliance on his evidence. 18. The next eye-witness is P.W.36 Raghunath Dohari. 18. The next eye-witness is P.W.36 Raghunath Dohari. In his evidence before the trial Court he stated that about 3 years prior to the date on which his evidence was recorded before the trial Court deceased Graham Staines visited the village Manoharpur by bus. Then he changed his version stating that the deceased Graham Staines visited Manoharpur in two vehicles. Both the vehicles were parked infront of the church. It was the day of Saraswati Puja. He slept in his house during the night. While so sleeping he heard sound of beating. Being attracted by such sound he got up from bed and went to the church where he could find a gathering of about 60/70 persons in front of the church, and they were beating the vehicles with sticks. They set fire to both the vehicles. They brought straw and set fire to the vehicles by lighting the straws. The witness then identified the appellants Dara Singh, Harish Chandra, Mahadev and Turam Ho as the miscre¬ants, who were there in the gathering and set fire to the vehi¬cles. This is, in brief, the gist of the evidence given by him during his examination in chief. During cross-examination he further stated that the deceased were burnt alive. He further admitted that he never disclosed the occurrence to anybody. Between his house and the church there were about 8/9 other houses. He also stated that he did not report about the incident to any of the villagers in the morning. In the next morning after the occurrence police party came and camped there for about one month. He never visited the Police Station or the C.B.I. camp at Ghasipura. He was brought to the Court by the C.B.I. officer on the date on which his deposition was recorded by the trial Court. The appellants whom he identified before the trial Court were standing in front of the vehicle at the time of occurrence. From the deposition of this witness, as recorded by the trial Court, it is not clear whether P.W.36 identified the four accused per¬sons by name and face or by face only. It is also not clear from his evidence as to whether these four accused were previously known to him. The four persons whom he identified set fire to the vehicles by lighting the straw. It is also not clear from his evidence as to whether these four accused were previously known to him. The four persons whom he identified set fire to the vehicles by lighting the straw. He further stated that he had not seen the four accused persons whom he had identified in the dock after the occurrence till the date of his deposition. He further stated that Ralia Soren, Mathai Marandi and Joseph Marandi came to the place of occurrence after the incident was over and the miscreants had left the scene of occurrence. He also stated that all these persons came about an hour after the miscreants left the scene of occurance. But P.W.15 Mathai Marandi clearly stated that he was present at the scene of occurrence and had himself witnessed the incident. In course of investigation the Investi¬gating Officer of the C.B.I., namely, P.W.55 alone recorded his statement under Section 161, Cr.P.C. on 30.5.1999. Before that he never reported the matter to the Police though it is admitted case of the prosecution witnesses that the police party arrived at the village in the very next morning after the incident and they camped there for several months. Apart from the police party, the Collector and other Police Officer also came to that place of occurrence. Yet, he did not report the incident the claims to have seen either to the police or to the Collector for about long 4 months. 19. P.W.55 being the C.B.I. Investigating Officer stated during cross-examination that the photographs of the suspects mixed with photographs of other persons were shown to the wit¬nesses including Raghunath Dohari in a test identification parade of photographs. This witness identified the photographs of the aforesaid appellants whom he identified in the trial Court. In the written notes of submission filed on behalf of the C.B.I. (see pages 68, 69 and 71 thereof) it is stated that photographs of suspects were not shown to this witness by P.W.55. But, this is belied by what the Investigating Officer (P.W.55) himself admitted at page 848 of the paper book. In the written notes of submission filed on behalf of the C.B.I. (see pages 68, 69 and 71 thereof) it is stated that photographs of suspects were not shown to this witness by P.W.55. But, this is belied by what the Investigating Officer (P.W.55) himself admitted at page 848 of the paper book. Such identification on the basis of photographs was held by P.W.55, being a statement made to the Investigating Officer in course of investigation, is inadmissible in evidence and hence such statements cannot be acted upon to lend corroboration to the identification of the appellants in the trial Court for the first time, particularly when they were not known to the witness. From this fact it is further evident that P.W.36 did not know the four accused persons by name or face as otherwise there was absolutely no justifica¬tion for the I.O. to hold photo identification parade of the suspects. It further appears from page 847 of the paper book that P.W.55 (I.O.) procured photographs of each of the suspects from the election office. It further appears from page 848 of the paper book where I.O. (P.W.55) admitted during his cross-examina¬tion that he showed photos of suspects to P.W.36 Raghunath Dohari on 30.5.1999 and he identified Dara Singh, Dipu and Andka Naik only. Rest were not identified by him. But in his evidence before the trial Court he identified only Dara Singh, Harish Chandra, Mahadev and Turam Ho. Prosecution has not come forward to explain this serious contradiction on the question of identi¬fication. Therefore, in the ultimate analysis we have no option but to reject his testimony as regards identification of some of the appellants before the trial Court for the first time. It is equally unsafe to act upon his evidence due to his belated dis¬closure of the incident to I.O. (P.W.55) about five and half months after the occurrence. JUDGMENT S. BARMAN ROY, C.J. : This Death Reference along with the Criminal Appeal of Dara Singh and other connected Jail Criminal Appeal and Criminal Appeals having arisen out of the same judg¬ment passed by the learned trial Court were heard analogously and are being disposed of by this common judgment. 2. This is a sensational case of triple murders of an Australian Christian Missionary, namely, Graham Stewart Staines and his two minor sons. 2. This is a sensational case of triple murders of an Australian Christian Missionary, namely, Graham Stewart Staines and his two minor sons. Among the appellants, convict Dara Singh alone was convicted under Section 302, IPC simpliciter and has been sentenced thereunder to death. Apart from the aforesaid, Dara Singh and all the appellants of the connected appeals have been convicted also under Sections 302/149, 120-B, 148, 435/149 and 436/149, IPC, and have been sentenced to various terms of imprisonment including imprisonment for life in respect of of¬fences under Sections 302/149 and 120-B, and 436/149, IPC. Apart from Dara Singh alias Rabindra Kumar Pal, other appellants, namely, Umakan¬ta Bhoi,Kartik Lohar, Rabi Soren, Mahadev Mahanta, Turam Ho, Dayanidhi Patra, Renta Hembram, Suresh Hansda alias Ojen, Mahen¬dra Hembram, Suratha Naik, Harish Chandra Mohanta, and Dipu alias Rajata Kumar Das were convicted and sentenced as already stated. 3. The prosecution case is that Graham Stewart Staines was a Christian Missionary from Australia and he was working in this State among the poor people and lepers. His two minor sons, namely, Phillip Staines, aged about 10 years and Timothy Staines, aged about 6 years were also brutally murdered. It needs to be stated here that appellant Dayanidhi Patra preferred two appeals against the same judgment, namely, Jail Criminal Appeal No.131 of 2003 and Criminal Appeal No.278 of 2003. 4. The incident of murders took place in the mid-night of 22.1.1999/23.1.1999. In this case, in all 55 P.Ws were examined on behalf of the prosecution. It appears that out of the said 55 P.Ws, 11 witnesses were examined as eye-witnesses for the prose¬cution. They are P.W.2, Basi Tudu, P.W.3, Paul Murmu, P.W.4, Ralia Soren, P.W.5, Sinigo Marandi, P.W.10, Nimai Hansda, P.W.11, Bhakta Marandi, P.W.15, Mathai Marandi, P.W.23 Joseph Marandi, P.W.36, Raghunath Dohari, P.W.39, Solemn Marandi and P.W.43, Lablal Tudu. Apart from the evidence of the aforesaid eye-witnesses, number of appellants made confessional statements. Prosecution also adduced evidence of criminal conspiracy against all the appellants. These are the three types of evidence, name¬ly, version of the eye-witnesses, confessional statements of number of appellants and evidence relating to criminal conspiracy that were relied upon by the prosecution before the trial Court, and acting upon such evidence the trial Court convicted and sentenced the appellants as already stated. 5. On behalf of the defence in all 25 witnesses were examined. 5. On behalf of the defence in all 25 witnesses were examined. Defence of the appellants in course of the trial was that of simple denial of the prosecution case as alleged. 6. It appears from the record of this case that all the accused were charged under Sections 120-B, 148, 435/149, 436/149 and 302/149, IPC. Apart from these charges, appellant Rabindra Kumar Pal alias Dara Singh was separately charged under Section 302, IPC. Only the appellant Rabindra Kumar Pal alias Dara Singh was convicted under Section 302 IPC simpliciter and was awarded sentence of death thereunder. All the appellants including the appellant Dara Singh were also convicted and sentenced as already stated. Death Reference No.1 of 2003 is a reference to this Court made by the trial Court under Section 366 of the Code of Criminal Procedure for confirmation of death sentence awarded to accused Rabindra Kumar Pal alias Dara Singh. 7. We will first deal with the evidence of eye-witnesses. On the basis of evidence of these eye-witnesses and also the con¬fessional statements allegedly made by some of the appellants, the appellant Dara Singh was convicted under Section 302 IPC and has been awarded sentence of death. Apart from this, all the appellants including appellant Dara Singh were further convicted under Sections 148, 435/149, 436/149, and Section 302/149, IPC on the basis of evidence of the eye witnesses and confessional state¬ments allegedly made by some of the appellants. They were also convicted under Section 120-B IPC and, accordingly, they were all sentenced to imprisonment for life on the basis of evidence relating to conspiracy. Therefore, we will first deal with the eye-witnesses and thereafter, we will proceed to examine the evidence furnished by the confessional statements allegedly made by some of the convict-appellants, and lastly we will take up the evidence relating to the charge under Section 120-B IPC. 8. Among the eye-witnesses P.W.2 Basi Tudu is the first eye-witness examined on behalf of the prosecution. In her evi¬dence she stated that she is Christian by faith. She knew the deceased Graham Stewart Staines for the last 15 years. Deceased Graham Stewart Staines used to visit Manoharpur church once in a year. He last visited the said church two years back on a Wednes¬day. He came there with his two minor sons, namely, Timothy Staines and Philip Staines. One Suvankar Ghosh also came with them. She knew the deceased Graham Stewart Staines for the last 15 years. Deceased Graham Stewart Staines used to visit Manoharpur church once in a year. He last visited the said church two years back on a Wednes¬day. He came there with his two minor sons, namely, Timothy Staines and Philip Staines. One Suvankar Ghosh also came with them. They were also accompanied by their driver. The luggage of Graham Stewart Staines were brought in another vehicle. Name of the said driver is Nimai Hansda (P.W.10); The vehicle carrying the luggage was driven by P.W. 10 Nimai Hansda and the other vehicle was driven by Graham Staines himself. The driver Nimai Hansda also used to cook food for Graham Staines. In the night of occurrence, Graham Staines with his two minor sons slept inside one of the vehicles. The said vehicle was parked in front of the church. 9. The occurrence took place on 22.1.1999 at about 12 mid-night. Hearing some dogs barking, she woke up and came out from her house when she found about 60 persons were proceeding along the passage by the side of her house towards the church. Among them she could identify one Chenchu. However, the said Chenchu is not before us in any of these appeals and the Death Reference Case. It appears from her evidence that in the trial Court she first identified an accused by face whose name is Rajat Kumar Das. However, when this witness was brought to the middle of the Court-room to have a better view of the accused persons, she could identify one appellant by face whose name is Ojen Hansda alias Suresh Hansda. Instead of identifying accused-appellant Rajat Kumar Das, she pointed out Ojen Hansda as the person whom she saw among the aforesaid 60 persons. It is, therefore, evident that she did not know Ojen Hansda alias Suresh Hansda by name. She identified Suresh Hansda for the first time in the Court by face only. She also stated that these 60 persons were holding torch-lights and lathis. At that time appellant Suresh alias Ojen Hansda had tied his head with a piece of red cloth. Others did not tie their heads with any cloth. When she wanted to know from them as to whether they were proceeding for a dance or for hunt¬ing, the miscreants did not give any reply whatsoever. At that time appellant Suresh alias Ojen Hansda had tied his head with a piece of red cloth. Others did not tie their heads with any cloth. When she wanted to know from them as to whether they were proceeding for a dance or for hunt¬ing, the miscreants did not give any reply whatsoever. After that, she went back to her bed. Soon after that, she could hear bursting sound and on hearing such sound she again came out of her house. However, the aforesaid miscreants did not allow her to proceed further. Then she went to the thrashing floor and from the thrashing floor she found that these miscreants had surround¬ed the vehicle of Graham Staines and she could see them setting fire to the said vehicle and accordingly, Graham Staines and his two minor sons were burnt to death. The people who had surrounded the vehicle raised slogans saying “JAI BAJARANGA BALI” and “DARA SINGH JINDABAD”. This is in brief what she has stated in her examination in chief. 10. It appears from the evidence on record that of all the appellants, she could identify only appellant Suresh Hansda alias Ojen by face for the first time before the trial Court. No.T.I. Parade was held to enable her to identify Suresh Hansda. There¬fore, her identification of Suresh Hansda alias Ojen by face during trial was not corroborated by any previously held test identification parade. In course of the investigation, her state¬ments were first recorded by the Crime Branch of the State Police on 4.2.1999. Investigation of the case was later on taken up by the C.B.I. Her statement was again recorded on 5.6.1999 by the C.B.I. Investigating Officer, namely, P.W.55. It is the admitted case that in none of these statements recorded by the two Inves¬tigating Officers, she ever disclosed the name of Ojen alias Suresh Hansda. During her cross-examination she further admitted that there was no moon in the sky at that time. But, she claims to have identified the appellant Suresh Hansda alias Ojen Hansda by the light of the lamp locally called Dibri which she had kept on the verandah. It must be mentioned here that it was mid-night during the pick up the winter season. She claims to have kept a lamp in the verandah when she was sleeping inside her house. It must be mentioned here that it was mid-night during the pick up the winter season. She claims to have kept a lamp in the verandah when she was sleeping inside her house. Reason for keeping a lighted lamp (Dibri) in the verandah at midnight is not understood. The question whether any reliance can be placed on such evidence of this witness where she identified the accused Ojen Hansda alias Suresh Hansda for the first time in the trial Court without being corroborated by any previously held test identification parade will be dealt with later while dealing with the evidence of all the eye-witnesses together inasmuch as the evidence of all the eye-witnesses suffer from same defect. So far as other appellants are concerned, the evidence of this witness virtually contains nothing. She also admitted during her cross-examination that she could not identify any of the persons who had surrounded the vehicle of Graham Staines and set it ablaze. Her belated disclosure of the incident as seen by her to the police is another circumstance against her credibility though a huge police party was camping in the village for several months since the morning after the incident. 11. P.W.3 Paul Murmu is the next eye-witness for the prosecution. He stated in his evidence that he was converted to Christianity in the year 1997. He knew the deceased Graham Staines since 1972. He used to accompany Graham Staines to dif¬ferent places. He last accompanied Graham Staines during his visit to Manoharpur on 20.1.1999. They started together on that day from Baripada in two vehicles. They were in all 11 persons together including Graham Staines and his driver. He was travell¬ing in the vehicle No.1208 (a jeep) along with Pittar Murmu, Bayu Hembram and driver Nimai Hansda (P.W. 10). Along with Graham Staines his two minor sons, namely, Timothy and Philip (both deceased) and three other persons from Cuttack, namely, Suvankar Ghosh, Pittak Khugi and another were travelling in vehicle bear¬ing No.952. They reached Manoharpur in the evening. Three huts were constructed for them just behind the church. In the first hut, Pittar Khugi and the person from Cuttack stayed. The driver Nimai Hansda (P.W.10); and Bayu Hembram stayed in the second hut. This witness himself along with P.W.5 Pittar Murmu stayed in the third hut. Graham Staines and his two minor sons slept inside vehicle No.1208 in front of the church. In the first hut, Pittar Khugi and the person from Cuttack stayed. The driver Nimai Hansda (P.W.10); and Bayu Hembram stayed in the second hut. This witness himself along with P.W.5 Pittar Murmu stayed in the third hut. Graham Staines and his two minor sons slept inside vehicle No.1208 in front of the church. Both the vehicles were parked in front of the church. It is stated by him in his evi¬dence that whenever Graham Staines used to visit Manoharpur he used to sleep inside the vehicle. That night “Nagin Dance” was performed at a distance of about 250 cubits from the church. Around 12.30 A.M. P.W.10 Nimai Hansda suddenly woke him up from to sleep and simultaneously he heard sounds of beating the vehi¬cles parked in front of the church. Soon after that, this witness along with P.W.10 Nimai Hansda went near the church and found some 60/70 persons putting straw below the vehicle No.952 and setting it on fire. As P.W.10 Nimai Hansda proceeded towards the said vehicle No.952, he was assaulted by these people. Three persons were also found pulling the door of vehicle No.1208 in which Graham Staines and his two minor sons were sleeping. They pulled out the handle of the vehicle door but could not open the door. These three persons broke the glass pans of the vehicle in which Graham Staines and his two minor sons were sleeping and gave strokes to Graham Staines and his two sons with sticks. They also focussed the torch into the vehicle. One of them was a bearded man. This witness then pointed out to accused Dara Singh alias Rabindra Kumar Pal in the dock saying that the bearded man resembled like the person whom this witness had seen at the scene of occurrence. Other two persons who were trying to open the door of the vehicle and were giving blows with lathis could not be identified by him. It, therefore, appears from his evidence that this witness found accused Dara Singh to resemble one of the assailants. They pulled straw which were kept on the top of the vehicle and put them below the vehicle and set fire to the same. A person of short stature set the straw and the vehicle ablaze. Thereafter, they raised slogans saying “JAI BAJARANG BALI” and “DARA SINGH JINDABAD”. They had also blew whistle thrice. They pulled straw which were kept on the top of the vehicle and put them below the vehicle and set fire to the same. A person of short stature set the straw and the vehicle ablaze. Thereafter, they raised slogans saying “JAI BAJARANG BALI” and “DARA SINGH JINDABAD”. They had also blew whistle thrice. That incident occurred in the mid-night of 22.1.1999. On the question of identification of appellant Dara Singh for the first time in the trial Court by this witness, his evidence reads as follows : “They were focusing torch into the vehicle. One of them was having a beard. The witness points out to accused Dara Singh in the dock saying that the bearded man resembled like him (Dara Singh). I am not able to identify if the other two are in the dock.” After the whistle was blown thrice, he became unconscious as he saw that he vehicle in which Graham Staines and his two minor sons were sleeping was on fire. After he regained consciousness, this witness along with others tried to extinguish the fire by pouring water, but the fire could not be extinguished. After the fire subsided he could find the charred bodies of Graham Staines and his two sons inside the vehicle and burnt head of one of the sons of Graham Staines, namely, Philip was severed from the body and was lying on the ground. The charred body of Timothy was lying in the vehicle with the head on the hand of charred body of Graham Staines. This is in brief what this witness had stated during his examination in chief. It further appears from the evidence of this witness during cross-examination and the evi¬dence of the Investigating Officer that this witness in his statements given to the three Investigating Officers on three different dates never alleged that one of the miscreants was a bearded man. He further stated that he saw the occurrence from a distance of 5/6 cubits. He also never stated in his previous statement that P.W.10 Nimai Hansda accompanied him to the church at the time of occurrence. He further stated that he saw the occurrence from a distance of 5/6 cubits. He also never stated in his previous statement that P.W.10 Nimai Hansda accompanied him to the church at the time of occurrence. He never made any such statement to the Investigating Officer that the three persons including a bearded man gave strokes to Graham Staines and his two sons with lathis or that they flashed torches into the vehicle.He also never stated to the Investigating Officer that head of Timothy was served and was laying beneath the vehicle. This is in short the evidence given by him before the trial Court. It needs to be mentioned that statement of this witness was recorded by the Investigating Officer of the State Police on 23.1.1999. Again he was examined on 10.2.1999 by the Investigating Officer of the Crime Branch of the State Police. Subsequently, on 20.4.1999 his statement was recorded by the C.B.I. Investigating Officer (P.W.55). In none of these statements he claimed that one of the miscreants was a bearded man and nowhere he disclosed the name of Dara Singh alias Rabindra Kumar Pal. It is true that generally speaking identification of an unknown accused for the first time before the trial Court is of no value unless corroborated by previously held T.I. Parade. But, in exceptional cases departure from this general rule of prudence is permissible. Almost all the eye-witnesses consistently stated that during occurrence miscre¬ants raised slogans in the name of Dara Singh. The story of this slogan was also mentioned in F.I.R. lodged soon after the occur¬rence. Therefore, this slogan in the name of Dara Singh corrobo¬rates his identification before the trial Court for the first time. 12. P.W. 4 Ralia Soren is the next eye-witness for the prosecution. In his evidence he stated that he knew deceased Graham Staines since preceding 20 years. Graham Staines had two minor sons and a daughter. Deceased Philip and Timothy were his two minor sons. Graham Staines visited Manoharpur last on 20.1.1999. He was accompanied by his two sons and others like Giliburt, Suvankar Ghosh, Swain and Khadi Babu. None of them had been examined in this case as witness. They all came in one vehi¬cle. Some travelled in another vehicle in which P.W.10 Nimai Hansda, Bayu Hembram, Pittar Murmu, P.W.3 Paul Murmu accompanied Graham Staines. They reached Manoharpur in the evening. He was accompanied by his two sons and others like Giliburt, Suvankar Ghosh, Swain and Khadi Babu. None of them had been examined in this case as witness. They all came in one vehi¬cle. Some travelled in another vehicle in which P.W.10 Nimai Hansda, Bayu Hembram, Pittar Murmu, P.W.3 Paul Murmu accompanied Graham Staines. They reached Manoharpur in the evening. This wit¬ness met Graham Staines and other persons accompanying him soon after their arrival at Manoharpur. After arrival there, Graham Staines along with his two minor sons slept in the vehicle bear¬ing No. 1208 and it was parked in front of the church. The other vehicle No.952 was also parked in front of the church. In the evening of 21.1.1999 a film relating to the life of Jesus Christ was exhibited in front of the church. In that night also Graham Staines and his two minors sons slept in the vehicle bearing No.1208. Again in the evening of 22.1.1999 a film on the life of Jesus Christ was screened in front of the church. Dinner was taken by them around 9 P.M. and Graham Staines and his two minor sons slept inside the vehicle bearing No.1208. His (P.W.4) house is situated to the south of the church intervened by four other houses. The vehicles parked in front of the church were visible from the road in front of his house. In the night of occurrence on 22.1.1999 this witness slept in his house after dinner. His wife was sleeping in another room. His wife woke him up from sleep and said that sound of large number of people going towards the church with lathis and torches was heard. He then came out and hardly walked 100 ft. towards the vehicle when he could find large number of people giving lathi blows on the vehicle in which Graham Staines and his two minor sons slept. Other vehicle bear¬ing No.952 was also set on fire. Three to four persons belonging to that group caught hold of his collar and restrained this witness from proceeding further. They focused torch light on his face and threatened him with lathis not to call anybody or raise any alarm. He admits that he could not recognize any of them as they kept their heads covered with caps and faces by mufflers. At that time Barial Marandi (not examined in this case) was running towards him. They focused torch light on his face and threatened him with lathis not to call anybody or raise any alarm. He admits that he could not recognize any of them as they kept their heads covered with caps and faces by mufflers. At that time Barial Marandi (not examined in this case) was running towards him. Then he went back and took the route to the church through his backyard. He called Christian people of the street, but none responded. He along with Barial Marandi then went to the Grama Rakhi at Panasadiha. However, the Grama Rakhi declined to come out during night. Then they went to Tulasibani and called the Christian people of the village. Five of them came with this witness to Manoharpur. When they reached near the church, they found that both the vehicles were burnt, and Graham Staines and his two sons were burnt to death. Thereafter this witness along with some others went to the house of one Pradipta Das (not examined) and reported him about the incident and from there all of them went to Thakurmunda Police Station. They went straight to the residence of the O.I.C. of the said Police Station and woke him up. As Manoharpur village is situated under the jurisdiction of Anandpur police station which is situated at a distance of 50 kilometers from Manoharpur, they requested the O.I.C. of Thakurmunda Police Station to report the incident to Anandapur Police Station, the Superintendent of Police and the Collector of the district. Later on, this witness along with Pradipta Das from a telephone booth informed the Superintendent of Police and the Collector of the district about the incident. Thereafter this witness along with others and P.W.23 Joseph Marandi boarded a bus for Anandapur. They could arrive at Anandapur on the next day at 8.20 A.M. When he reached the Police Station as he had already left for Manoharpur. The police personnel available at Anandapur Police Station arranged for their transport by a private jeep to Manoharpur and after reaching Manoharpur at about noon time, they found that the police personnel had already arrived there. Around 9 P.M., the O.I.C. of Anandapur Police Station being P.W.52 showed him a written paper and told him that is the F.I.R. and he gave signa¬ture thereto as requested by the O.I.C. This is the entire evi¬dence during his examination in chief. Around 9 P.M., the O.I.C. of Anandapur Police Station being P.W.52 showed him a written paper and told him that is the F.I.R. and he gave signa¬ture thereto as requested by the O.I.C. This is the entire evi¬dence during his examination in chief. It appears from his evi¬dence during examination in chief that he never claimed to have recognized any of the miscreants involved in the incident. There¬fore, his evidence does not serve any purpose whatsoever for the prosecution so far as identify of the miscreants is concerned. But it must be mentioned here that in the F.I.R. names of large number of miscreants were mentioned. But none of them has been charge-sheeted in this case. It is true that names of none of the appellants were mentioned in the F.I.R. But in the F.I.R. itself it was stated by this witness that at the time of occurrence miscreants raised slogans saying “BAJRANGABALI ZINDABAD” AND DARA SINGH ZINDABAD”. Therefore, these slogans lend corroboration to the testimony of these eye witnesses who identified Dara Singh for the first time in the trial Court. 13. P.W.5 Sinigo Marandi has also figured in this case as an eye witness. In his evidence, he stated that he is a resident of village Manoharpur. A “Nagin dance” was held in their village in the night of Saraswati Puja in 1999. This dance started in the evening and he witnessed it along with other boys and girls of the village and his mother as well as Mukta Marandi. He witnessed the dance for about an hour and thereafter he slept at the veran¬dah of one Galu of their village. The “Nagin dance” was staged at a distance of about 200 ft. from the church. A cinema was exhib¬ited in front of the church before the “Nagin dance began.” When he was sleeping in the verandah of one Galu, his mother was sitting by his side, though time of occurrence was midnight during peak of the winter season. Who else could be termed as chance witnesses except this witness and his mother who were sleeping in the verandah of another man during peak of the winter night instead of sleeping in their own house ? This witness further stated in his evidence that at midnight his mother woke him up and then he saw something was burning near the church. This witness further stated in his evidence that at midnight his mother woke him up and then he saw something was burning near the church. He further found that a vehicle was moving towards the road and appellant Ojen and one Chenchu (not an accused in this case) came to this witness and his mother. They were carrying lathis and torch with their heads tied with red cloth. They advised this witness and his mother not to go near the fire as they would be exposed to the risk of being killed if they went near that place where some people who were brought by them were killing the Christians. They asked them not to disclose their names to any body. For this reason this witness and his mother went out of the village to the field situated nearby. Thereafter, he heard sound of blowing whistle thrice and the slogans like “JAI BAJRANG BALI” and “JAI DARA SINGH”. While pointing to appellant Ojen Hansda in the dock, he stated that a person of his appearance told him not to go near the fire. But his evidence that a person with appear¬ance resembling appellant Ojen Hansda had told him not to go near the fire does not amount to identification of the appellant Ojen Hansda. Therefore, this evidence to this effect does not help prosecution even with respect to Ojen Hansda. It further appears that at the time of occurrence he was prosecuting his studies at Cuttack and his mother was working as a labourer in Bhadrak. In these circumstances coupled with the fact that he was sleeping in verandah of another person with her mother sitting beside him till midnight during peak of the winter sounds highly incredible and he fulfils all the characters of a chance witness. 14. Next important eye witness is P.W.10 Nimai Hansda. As already seen during discussion of evidence of the aforesaid eye-witnesses, P.W.10 drove the vehicle carrying the luggage of Graham Staines and along with him they all reached Manoharpur in the evening from Baripada. It appears from his evidence that he is also an eye-witness of the occurrence. His evidence is also more or less similar to the evidence of other eye-witnesses already discussed except that he could not identify anybody. During his examination in chief, he clearly admitted that the could not identify any of the miscreants involved in the inci¬dent. It appears from his evidence that he is also an eye-witness of the occurrence. His evidence is also more or less similar to the evidence of other eye-witnesses already discussed except that he could not identify anybody. During his examination in chief, he clearly admitted that the could not identify any of the miscreants involved in the inci¬dent. Therefore, for the sake of brevity, we do not consider it necessary to discuss his evidence any more. However, it needs to be mentioned here that during the occurrence he heard the miscre¬ants raising slogans saying “JAI BAJRANG BALI” and “DARA SINGH JINDABAD”. Therefore, his evidence that the heard slogan in the name of Dara Singh corroborates evidence of other eye-witness who identified Dara Singh in the trial Court for the first time. 15. P.W.11 Bhakta Marandi is the next eye-witness of the occurrence. In his evidence he stated that in the night of 22.1.1999 Graham Staines and his two minor sons slept in a vehi¬cle and this witness himself slept in his house. In the mid-night his wife woke him up from sleep on hearing some bursting sound. On hearing this, he came out of the house and found 4/5 persons standing in front of his house holding lathis and torches. They were threatening that they would kill the persons whosoever dared to go that way. One of them threw a lathi to him. This witness retreated back to his house and went to his back yard and from there he went to the house of one Benjamin situated one house apart from the church. From there he saw number of persons in front of the church near the vehicle, and they were all armed with lathis and were holding torches. They were beating the vehicle with lathis. A slim and tall man was holding an axe. They set fire to one of the vehicles. Those persons had red clothes tied around their heads. Two/three persons poured petrol near the wheel of the vehicle. Some of them brought straw from a nearby straw heap and kept the same in the vehicle. They set fire to both the vehicles and both the vehicles were burnt. The miscreants blew whistle and raised slogan saying “JAI BAJARANG BALI” and “DARA SINGH JINDABAD” Then they left the place. The person holding the axe was also beating the vehicle with an axe and guiding other miscreants. They set fire to both the vehicles and both the vehicles were burnt. The miscreants blew whistle and raised slogan saying “JAI BAJARANG BALI” and “DARA SINGH JINDABAD” Then they left the place. The person holding the axe was also beating the vehicle with an axe and guiding other miscreants. This wit¬ness then pointed out the accused Dara Singh and accused Rajat Kumar Das in the dock and claimed that these two persons ever beating the vehicle and set fire on the vehicles. Accused Dara Singh had been identified as a slim and tall man holding an axe and he was guiding the other miscreants. He further claims that the Investigating Officer of the C.B.I. showed him photographs of some persons and he had identified two of the photographs as the miscreants. He put his signature on those photographs. M.O.I. is the photograph of accused Dara Singh standing in the dock. M.O. II is the photograph of accused Rajat Kumar Das in the dock. This is in short the evidence given by him. This part of the prosecution story as regards photo identification of these two appellants is also reiterated by the C.B.I. Investigating Officer (P.W.55). It needs to be mentioned here that accused Paul Murmu (P.W.3) also identified Dara Singh for the first time in the trial Court. In his evidence P.W.3 stated that Dara Singh was giving strokes on Graham Staines with a lathi. But P.W. 11 says that accused Dara Singh was holding an axe and with the axe he was beating the vehicle. However, in a dark night an axe may appear like a lathi or vice versa. The evidence that the Investigating Officer showed some photographs and he identified the same and the said two photographs were of accused Dara Singh and Rajat Kumar Das is inadmissible in evidence inasmuch as these statements are the statements before the Investigating Officer during Police Investigation and such statement are hit by Section 162, Cr.P.C. Section 162, Cr.P.C. clearly provides as to how statements made to a Police Officer in course of investigation should be used. Same cannot be used as evidence except for the purpose of contradiction. The evidence of this witness to the Instigating Officer with regard to identification by photographs sought to be proved by the prosecution amounts to statement made to a Police Officer in course of investigation. Same cannot be used as evidence except for the purpose of contradiction. The evidence of this witness to the Instigating Officer with regard to identification by photographs sought to be proved by the prosecution amounts to statement made to a Police Officer in course of investigation. Therefore, such evidence is clearly inadmissible in evidence. The evidence of other eye-witnesses also suffer from more or less same defect as regards identifica¬tion. The statement recorded under Section 161, Cr.P.C. cannot be used for any purpose except for the purpose as provided under Section 162, Cr.P.C. It may be used only for contradiction. The prosecution cannot contradict its own witness with his previous statement unless he is declared hostile and permission is ob¬tained from the trial Court to cross-examine him. Of course, if such statements amount to dying declaration though recorded u/s 161 Cr.P.C. same may be used as evidence. Surely identifications of the offenders by photographs before a police officer do not amount to dying declaration. Therefore, such statements are clearly hit by Section 162, Cr.P.C. and hence same are inadmissi¬ble in evidence. It is thus manifest from the aforesaid that this witness did not know accused Dara Singh or Rajat Kumar Das by name. He identified them for the first time in the trial Court. The evidence of identification by photographs before the Investi¬gating Officer being inadmissible, for the reasons stated above, the same is not available to lend corroboration to the identifi¬cation of these two accused before the trial Court for the first time. Needless to mention here that no test identification parade was held. Instead of adopting this novel method, as done by the Investigating Officer, it was open to him to place the photographs before the Judicial Magistrate and Judicial Magistrate could have been requested to hold a test identification parade of photo¬graphs of suspects and direct this witness to identify if any of the persons in the photographs were participants in the crime. That course was not followed by the Investigating Officer. Such lapses on the part of an elite investigating agency like C.B.I. cannot be excused. But he heard slogans in the name of Dara Singh. Eye witnesses are consistent about this story of slogan in the name of Dara Singh. This slogan was also mentioned in the F.I.R. Therefore, identification of Dara Singh is corroborated by the story of slogan raised in his name. But he heard slogans in the name of Dara Singh. Eye witnesses are consistent about this story of slogan in the name of Dara Singh. This slogan was also mentioned in the F.I.R. Therefore, identification of Dara Singh is corroborated by the story of slogan raised in his name. Though we accept his evidence as regards Dara Singh, we are unable to accept his evidence as regards identification of Rajat Kumar Das for want of proper corroboration to his identification. He further stated during his cross-examination that P.W. 15 Mathai Marandi and two others came to the place of occurrence after the miscreants left that place. He also did not report about the incident to them. This witness does not claim to have seen any one who arrived at the scene of occurrence while Bikram Marandi, Susna Marandi and P.W. 15 Mathai Marandi came there after the miscreants had left that place. He further stated that in the next morning police and Collector came to their village. Yet, this witness did not report about the incident he had seen either to the police or to the Collector. His statement was recorded for the first time by P.W.55 on 5.6.1999. It is also stated by him that the Investigat¬ing Officer of the C.B.I. brought some 20/25 photographs to his house for identification of the suspects and out of those photo¬graphs he identified only 2 photographs of appellants Dara Singh and Rajat Kumar Das and accordingly signed the said photographs. He further admitted that he did not know the names of the persons whose photographs he identified before the C.B.I. Investigating Officer, and also that he saw the man holding an axe for the first time during the occurrence. He further admits that he could learn the name of the accused Dara Singh when he was told by the Investigating Officer of the C.B.I. the day prior to the date on which his deposition was recorded before the trial Court. He was also told by the Investigating Officer of the C.B.I. that the name of the person in the photograph Ext. M.O. II is Rajat Das. There was an inordinate delay of about five months on his part to report about the incident to the police though a police camp was set up in the village in the very next morning after the incident and it was continued there for several months. M.O. II is Rajat Das. There was an inordinate delay of about five months on his part to report about the incident to the police though a police camp was set up in the village in the very next morning after the incident and it was continued there for several months. Apart from the police camp, several high level police officers including inves¬tigating officers and administrative officers were visiting the village of occurrence since the morning after the incident. Evi¬dence of such a witness is not at all reliable. His evidence with regard to identification of Dara Singh may be acceptable as the same is corroborated by the story of slogans raised in the name of Dara Singh. But we are unable to accept the identification of Rajat Das. 16. P.W.15 Mathai Marandi also figured in this case as an eye-witness. In his evidence he stated that on 20.1.1999 deceased Graham Staines along with 11 other including his two sons, name¬ly, Philip and Timothi visited village Manoharpur. Graham Staines along with two sons used to sleep during night in the vehicle parked in front of the church. In the night of 22nd January, 1999 when this witness was sleeping, his wife on hearing some bursting sound woke him up. P.W.15 Mathai then came out being attracted by some commotion and sound of beating and found 40/50 persons had gathered near the vehicle in front of the church and they were beating the vehicle with lathi. The miscreants were armed with lathis, axe, bows and arrows and torches. They were beating both the vehicles. He also heard cries of two sons of Graham Staines. When he advanced towards the vehicles, 3 or 4 persons focused torches at his face and as they threatened him with lathis, he repeated towards his house and went to the huts raised behind the church and called P.W. 10 Nimai Hansda, P.W.3 Paul Murmu, P.W.53 Pitter Murmu and others. When he again went to the place of occurrence near the vehicles, he found the miscreants setting fire to the vehicles. Miscreants pulled out straws from the top of the vehicles and put the same beneath the vehicles and set fire to them. Both the vehicles caught fire and were burnt. When he again went to the place of occurrence near the vehicles, he found the miscreants setting fire to the vehicles. Miscreants pulled out straws from the top of the vehicles and put the same beneath the vehicles and set fire to them. Both the vehicles caught fire and were burnt. He claims that he could identify Dara Singh, Dipu Das, Ojen Hansda and Mahadev and, accordingly, he identified them in the dock he further stated that the appellants he identified were beating the vehicles and appellant Dara Singh was holding an axe and he was directing others saying “MARBE, PITA BE”. He also claimed in his evidence that Ojen Hansda and Mahendra Hembram belonged to his village. But, he did not identify appellant Mahendra Hembram and, therefore, his evidence against Mahendra Hembram is of no conse¬quence. He also identified appellant Umakanta Bhoi in a T.I. parade conducted in Anandapur jail. Umakanta Bhoi is one of the miscreants who set fire to the vehicles. P.W. 10 Nimai Hansda tried to extinguish the fire with a bucket of water but he was also assaulted. He further stated in his evidence that after the vehicles were burnt, miscreants blew whistle thrice and raised slogans saying ‘JAI BAJRANG BALI, DARA SINGH JINDABAD’ and then left the place. However, during cross-examination he admitted “I have not stated before the local police that I could identify 4 persons from among the miscreants. I have not stated before Crime Branch I.O. that I could identify 4 persons from among the mis¬creants”. However, after the aforesaid statement, he immediately hastened to add an explanation saying, “As none of the I.Os asked me anything about the identification, I have not told before them that I could identify 4 of the miscreants.” This is too insuffi¬cient an explanation and hence it is bound to be rejected. He further admitted that he did not state in his statements before the investigating officers that appellant Umakanta Bhoi was also seen setting fire to the vehicles or that he saw some of the miscreants pulling straws from the “roof of vehicles, putting it beneath the vehicles near the wheel and setting fire to it”. During his cross-examination he conveniently failed to recollect if he had stated to the police that he had gone near the vehicle. During his cross-examination he conveniently failed to recollect if he had stated to the police that he had gone near the vehicle. He made most vital admission during his cross-examination with regard to appellant Umakanta Bhoi in the language as quoted hereunder :- “CBI officers had called me to the Anandapur camp and asked me whether I can identify accused Umakanta Bhoi and I told them in the affirmative. T.I. parade was conducted seven days thereafter at Anandapur jail and as per the date given by C.B.I. officers I went Anandapur jail to participate in the T.I. parade as a witness. The C.B.I. officers had shown me a bunch of photo¬graphs at their Anandapur camp the day they had called me there, i.e., seven days prior to T.I. parade. The photograph of Umakanta Bhoi was in that bunch.” 17. Therefore, seven days prior to T.I. parade in which this witness identified appellant Umakanta Bhoi, overzealous C.B.I. investigating officer (P.W.55) had shown this witness amongst others, a photograph of appellant Umakanta Bhoi. It further appears from the evidence of this witness that C.B.I. I.O. showed him a bunch of photographs and out of them he had signed three photos. But he could not say why he signed them. But, it appears from the evidence of P.W.55 that on being shown by P.W. 55, this witness (P.W.15) had identified photographs of different appellants. No Court of law, unless utterly over-credu¬lous, can act up on such evidence on a most important question as to the identification of the offenders. In these circum¬stances, we are constrained to observe that it was absolutely unfair and unethical on the part of the over zealous C.B.I. investigating officers to adopt such unheard of methods to pro¬cure tainted evidence to somehow procure conviction of the appel¬lants. Trial Court was also astonishingly over-credulous to act upon such evidence. This witness also gave evidence during the trial of juvenile offender Chenchu before the juvenile Court. It appears that in his evidence before the juvenile Court he did not state that the miscreants, who were beating the vehicles and setting fire to the same, were carrying lathis, axe, bows, arrows and torches or that he heard two minor sons of Graham Staines were crying or that he went near huts raised behind church and called P.Ws. It appears that in his evidence before the juvenile Court he did not state that the miscreants, who were beating the vehicles and setting fire to the same, were carrying lathis, axe, bows, arrows and torches or that he heard two minor sons of Graham Staines were crying or that he went near huts raised behind church and called P.Ws. Nimai, Paul, Pitter and other or that the miscreants pulled straws from the “roof of the vehicles and set it on fire” or that he again went to the P.O. and found the miscreants set¬ting the vehicles on fire or that appellant Dara Singh was hold¬ing an axe or that Nimai Hansda carried at bucket of water and he was assaulted or that miscreants raised slogans saying “DARA SINGH JINDABAD” and ‘JAI BAJARANGABALI’. He admitted that he did not tell anyone of his village that appellants Ojen Hansda and Mahendra Hembram were seen setting fire to the vehicles. He never saw Dara Singh before the occurrence. In his statements before the State Police Investigating Officer he had not state that 40/60 persons had gathered at the place of occurrence or that he went to the huts raised behind the church and called Nimai Hansda, Paul Murmu, Pitter Murmu and others or that he heard wailing sound of minor sons of Graham Staines or that the miscreants were holding axe, bow, arrow etc., or that when he came out some of the miscreants had focused torches on his face or that he saw the miscreants setting fire to the vehicles., It appears that he stated to State Police Investigating Officers that he found vehi¬cles on fire only. He also did not state to them that he saw miscreants pulling out straws from the “roof of the vehicle” and put them beneath the vehicle and lighted the same or that he would be able to identify some of the miscreants or that the appellants Ojen Hansda and Mahendra Hembram belong to his vil¬lage. It therefore appears that in view of the foresaid circum¬stances and his omission to mention all important aspects in his evidence including names of the appellants he identified before the trial Court in his previous statements recorded by as many as three investigating officers, it is absolutely unsafe to place any reliance on his evidence. 18. The next eye-witness is P.W.36 Raghunath Dohari. 18. The next eye-witness is P.W.36 Raghunath Dohari. In his evidence before the trial Court he stated that about 3 years prior to the date on which his evidence was recorded before the trial Court deceased Graham Staines visited the village Manoharpur by bus. Then he changed his version stating that the deceased Graham Staines visited Manoharpur in two vehicles. Both the vehicles were parked infront of the church. It was the day of Saraswati Puja. He slept in his house during the night. While so sleeping he heard sound of beating. Being attracted by such sound he got up from bed and went to the church where he could find a gathering of about 60/70 persons in front of the church, and they were beating the vehicles with sticks. They set fire to both the vehicles. They brought straw and set fire to the vehicles by lighting the straws. The witness then identified the appellants Dara Singh, Harish Chandra, Mahadev and Turam Ho as the miscre¬ants, who were there in the gathering and set fire to the vehi¬cles. This is, in brief, the gist of the evidence given by him during his examination in chief. During cross-examination he further stated that the deceased were burnt alive. He further admitted that he never disclosed the occurrence to anybody. Between his house and the church there were about 8/9 other houses. He also stated that he did not report about the incident to any of the villagers in the morning. In the next morning after the occurrence police party came and camped there for about one month. He never visited the Police Station or the C.B.I. camp at Ghasipura. He was brought to the Court by the C.B.I. officer on the date on which his deposition was recorded by the trial Court. The appellants whom he identified before the trial Court were standing in front of the vehicle at the time of occurrence. From the deposition of this witness, as recorded by the trial Court, it is not clear whether P.W.36 identified the four accused per¬sons by name and face or by face only. It is also not clear from his evidence as to whether these four accused were previously known to him. The four persons whom he identified set fire to the vehicles by lighting the straw. It is also not clear from his evidence as to whether these four accused were previously known to him. The four persons whom he identified set fire to the vehicles by lighting the straw. He further stated that he had not seen the four accused persons whom he had identified in the dock after the occurrence till the date of his deposition. He further stated that Ralia Soren, Mathai Marandi and Joseph Marandi came to the place of occurrence after the incident was over and the miscreants had left the scene of occurrence. He also stated that all these persons came about an hour after the miscreants left the scene of occurance. But P.W.15 Mathai Marandi clearly stated that he was present at the scene of occurrence and had himself witnessed the incident. In course of investigation the Investi¬gating Officer of the C.B.I., namely, P.W.55 alone recorded his statement under Section 161, Cr.P.C. on 30.5.1999. Before that he never reported the matter to the Police though it is admitted case of the prosecution witnesses that the police party arrived at the village in the very next morning after the incident and they camped there for several months. Apart from the police party, the Collector and other Police Officer also came to that place of occurrence. Yet, he did not report the incident the claims to have seen either to the police or to the Collector for about long 4 months. 19. P.W.55 being the C.B.I. Investigating Officer stated during cross-examination that the photographs of the suspects mixed with photographs of other persons were shown to the wit¬nesses including Raghunath Dohari in a test identification parade of photographs. This witness identified the photographs of the aforesaid appellants whom he identified in the trial Court. In the written notes of submission filed on behalf of the C.B.I. (see pages 68, 69 and 71 thereof) it is stated that photographs of suspects were not shown to this witness by P.W.55. But, this is belied by what the Investigating Officer (P.W.55) himself admitted at page 848 of the paper book. In the written notes of submission filed on behalf of the C.B.I. (see pages 68, 69 and 71 thereof) it is stated that photographs of suspects were not shown to this witness by P.W.55. But, this is belied by what the Investigating Officer (P.W.55) himself admitted at page 848 of the paper book. Such identification on the basis of photographs was held by P.W.55, being a statement made to the Investigating Officer in course of investigation, is inadmissible in evidence and hence such statements cannot be acted upon to lend corroboration to the identification of the appellants in the trial Court for the first time, particularly when they were not known to the witness. From this fact it is further evident that P.W.36 did not know the four accused persons by name or face as otherwise there was absolutely no justifica¬tion for the I.O. to hold photo identification parade of the suspects. It further appears from page 847 of the paper book that P.W.55 (I.O.) procured photographs of each of the suspects from the election office. It further appears from page 848 of the paper book where I.O. (P.W.55) admitted during his cross-examina¬tion that he showed photos of suspects to P.W.36 Raghunath Dohari on 30.5.1999 and he identified Dara Singh, Dipu and Andka Naik only. Rest were not identified by him. But in his evidence before the trial Court he identified only Dara Singh, Harish Chandra, Mahadev and Turam Ho. Prosecution has not come forward to explain this serious contradiction on the question of identi¬fication. Therefore, in the ultimate analysis we have no option but to reject his testimony as regards identification of some of the appellants before the trial Court for the first time. It is equally unsafe to act upon his evidence due to his belated dis¬closure of the incident to I.O. (P.W.55) about five and half months after the occurrence.