JUDGMENT D. Biswas, J. 1. This appeal is directed against the Judgment dated 18.6.2005 passed by the learned Ad-hoc Addl. District and Sessions Judge, Nagaon in Sessions Case No. 161(N)/2000 whereby the Appellants on conviction under Section 302/34have been sentenced to imprisonment for life and to pay a fine of Rs. 2000/- each, in default, to further rigorous imprisonment for six months. 2. The prosecution case is that on 14.12.1992 around 10 P.M., the accused persons namely, 1) Gopal Ghosh, 2) Harendra Sarkar, 3) Ratan, 4) Krishna, 5) Sri Ram Gore, 6) Nirmal Dutta, 7) Kailash Gore, 8) Nandulal, 9) Dhirendra Gour, 10) Budhuram Rahang, 11) Barik Timung, 12) Harsingh Gour, 13) Gendela Gour and others formed an unlawful assembly and trespassed into the house of the complainant Md. Taheruddin and killed his wife Mustt. Sahera Khatoon and two daughters Hajera Khatoon and Bimalu Khatoon by hacking them with dao and dagger. They also caused grievous injuries to his eldest son Mustafa and one Md. Jakir Ahmed. 3. The police on receipt of the ejahar registered Dabaka P.S. Case No. 261/92 under Section 147 /148/149/448/302/326 I.P.C., took up investigation and in due course submitted charge sheet. 4. The learned Sessions Judge framed charge against 1) Nirmal Dutta, 2) Nanda Dutta, 3) Kailash Gour, 4) Shyam Sundar Gour, 5) Gopal Ghose, 6) Ratan Das, 7) Krishna Das, 8) Harendra Sarkar, 9) Hari Singh Gour, 10) Gundulu Gour, 11) Rahna Gour and 12) Badhu Ranpi under Section 448/34,302/34 and 326/34 IPC. The charges were read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried. The learned Sessions Judge examined 9 prosecution witnesses, recorded the statement of accused persons under Section 313 Code of Criminal Procedure heard argument and, on completion of trial delivered the impugned judgment convicting and sentencing the accused persons as aforesaid. 5. The learned Sessions Judge convicted Kailash, Hari Singh, Gundul, Ratan Das, Krishna Das, Harendra Sarkar, Rahna Gour and Budhu Gour under Section 302/24I.PC. and sentenced each of them to life imprisonment and to pay a fine of Rs. 2000/-. The learned Sessions Judge also convicted the above named accused persons under Section 448/34 IPC and sentenced them to imprisonment for one year. The learned Sessions Judge further convicted Gopal, Hari Singh and Kailash under Section 324/34 I.P.C. and sentenced them to rigorous imprisonment for one year each. 2000/-. The learned Sessions Judge also convicted the above named accused persons under Section 448/34 IPC and sentenced them to imprisonment for one year. The learned Sessions Judge further convicted Gopal, Hari Singh and Kailash under Section 324/34 I.P.C. and sentenced them to rigorous imprisonment for one year each. The learned Sessions Judge, however, acquitted all the accused persons on benefit of doubt from the charge under Section 326/34 I.P.C. and 323/34 I.P.C. 6. At the very outset, we would like to refer to the evidence of P.W. 1 Dr. Madhusudhan Dev Goswami, who had performed the postmortem examination on the deceased persons. Dr. Goswami was, at that time, Sr. Medical and Health Officer at B.P. Civil Hospital, Nagaon. On 15.12.1992, he held the postmortem on the dead body of Sahera Khatoon being identified Constable No. 758 Sri Dimbeswar Bhuyan and one Mustafa Ahmed. The medical officer found the following injuries: External appearance: One human cadaver female aged about 35 years with rigor mortis present with average build. Injury No. 1 - One incised wound at the right side of upper neck, obliquely placed measuring 4"×½"×½" underlying muscles and big vessels and nerves are bisected. Injury No. 2. Incised wound at the right check measuring 2"×½"×½". Injury No. 3 - Incised wound at the right shoulder measuring 2"×½"×½". Cranium and Spinal Canal-healthy, Thorax healthy, Heart-empty, large intestine contents facial matter, Liver, Spleen, Kidneys-healthy, bladder-empty. Antemortem blood clots are found firmly adherent on and around the sites of injuries. In my opinion death is due to haemorrhage and shock as a result of the injuries sustained. 7. On the same day, he also performed the postmortem examination on the dead body of Bimala Khatoon, a female child aged 3 years, identified by Constable No. 758 Sri Dimbeswar Bhuyan and one Mustafa Ahmed. He found the following injuries on her person: External Appearance: One female child cadaver of about 3 years old, rigor mortis present. Injury No. 1 : One incised wound at the left parietal bone of the neck 2"×½×brain deep. Injury No. 2 : One incised wound at the left upper neck measuring 2"×½×½" bisecting under lying muscles and great vessels. Cranium and Spinal Canal-healthy, Thorax-healthy, heart-empty. Other organs healthy. Abdomen-healthy, stomach-empty, large intestine contents facial matter present. Liver, Spleen Kidneys, bladder are healthy. Antemortem blood clots are found adherent in and around the sides of the injuries. Injury No. 2 : One incised wound at the left upper neck measuring 2"×½×½" bisecting under lying muscles and great vessels. Cranium and Spinal Canal-healthy, Thorax-healthy, heart-empty. Other organs healthy. Abdomen-healthy, stomach-empty, large intestine contents facial matter present. Liver, Spleen Kidneys, bladder are healthy. Antemortem blood clots are found adherent in and around the sides of the injuries. Injuries are antemortem. In the opinion death was due to haemorrhage and shock as a result of injuries sustained. 8. On the same day, he also performed postmortem examination on the dead body of Hajira Khatoon, a female child of 7 years being identified by Constable No. 758 Sri Dimbeswar Bhuyan and one Mustafa Ahmed. He found the following injuries on her person: One female human cadaver average build, rigor mortis present. Injury No. 1 - One incised wound on the right upper neck, 2"×1"×½" bisecting muscles and great vessels and nerves. Injury No. 2 - One incised wound at the right parietal region of scalp measuring 2"×1"×brain deep. Cranium and Spinal canal described already. Thorax-healthy, Heart-empty, other organs healthy, stomach-empty, other organs healthy. Liver, Spleen, Kidneys, Bladder healthy. Antemortem blood clots wound firmly adherent in & around the sides of injuries. Injuries are antemortem. In the opinion, death is due to shock and haemorrhage as a result of the injuries sustained. 9. P.W. 6 Dr. Jaiuddin Ahmed examined the injured Jakir Hussain and Md. Mustafa Ahmed and found the following injuries on their person: Jakir Hussain 1) There was vertical cut injury over the lip. Size 2"×½". 2) There are six cut injuries over the scalp each about 2"×½" in size. 3) Left little finger was served at the bone of the proximal phalange. 4) There is swelling and tenderness over the right hand. 5) There were two cut injuries over the back, on each side. There was multiple cut injury with blunt injury of the right hand with sharp cutting. Wounds were dangerous in nature. Md. Mustafa Ahmed 1) Penetrating injury of the right leg with sharp pointed weapon. Seize 1/3"×½". The injury is fresh and margins were irregular. 2) Simple cut injury by sharp pointed object. 10. The evidence of P.W. 1 Dr. Madhusudhan Dev Goswami establish the death of Sahera Khatoon, Bimala Khatoon and Hajira Khatoon. They died due to shock and haemorrhage from the ante-mortem and homicidal injuries sustained by them. The evidence of PW 6 Dr. The injury is fresh and margins were irregular. 2) Simple cut injury by sharp pointed object. 10. The evidence of P.W. 1 Dr. Madhusudhan Dev Goswami establish the death of Sahera Khatoon, Bimala Khatoon and Hajira Khatoon. They died due to shock and haemorrhage from the ante-mortem and homicidal injuries sustained by them. The evidence of PW 6 Dr. Jiauddin Ahmed prove that both Jakir Hussain and Mustafa Ahmed sustained injuries on their person. 11. Of the seven witnesses examined by the prosecution, P.W. 1 and 6 are medical officers and, P.W. 7 is the Investigating Officer. The prosecution relied upon the evidence of P.Ws. 2, 3 and 4 to bring home the charges framed against the Appellants. 12. P.W. 2 Md. Taheruddin is the complainant. He has lost his wife and two children. According to him, the occurrence took place on 14th December, 1992. It was moonlit night. He was guarding his harvested paddy on the western side of his house. In one of the houses, his son Musstafa, Hanifa, Jakir and a young boy were sleeping. In the other house, his wife Sahera Khatoon, Hazera Khatoon. Jahanara Begum and Samana Khatoon were sleeping. Around 10 P.M., he saw a group of 10/12 men proceeding from the north towards his homestead and another group of 10/12 from the south. They entered their housing complex. Gopal was one of them. Gopal called this witness shouting his name. The witness moved forward. He heard a commotion and ran ahead to see what was happening. His eldest son Mustafa shouted--"Father don't come house. People are being cut here". Out of fear, Mustafa ran towards west. The witness went closer to the house. He saw a group of people striking the wall of his house with dao, lathi etc. He saw a few youths running towards the west. Accused Rahna Gour shot an arrow at him. It hit him on the right hand. He sat down and saw the accused persons moving towards the road blowing whistles. The road is 2/½ nals away from the house. After they left, he came to his house and raised alarm. He saw Bimala and Hajera lying dead. He lifted the dead body of Bimala on his shoulder and stood by the road side. He found his wife lying injured in the middle of the paddy field. She died immediately after taking water. After they left, he came to his house and raised alarm. He saw Bimala and Hajera lying dead. He lifted the dead body of Bimala on his shoulder and stood by the road side. He found his wife lying injured in the middle of the paddy field. She died immediately after taking water. Mustafa and Zakir sustained injuries caused by daos. At that time Army personnel arrived along with police. They shifted the injured to Nagaon Civil Hospital and the dead bodies to Daboka Police Station. The occurrence took place after the demolition of Babri Masjid. A day after, he lodged the ejahar (Ext. 1) written by one Jabbar Jaffar. Ext. 1(1) is his signature. The evidence further shows that his son P.W. 3 told him about the occurrence. From this witness, we find that he has made incriminating statements against accused Gopal and Rahna. 13. P.W. 7 Shri B.N. Kalita, the Investigating Officer proved certain contradictions. According to him, P.W. 2 did not tell him that he had seen two groups of people attacking his house from two different directions; that Gopal had called him by name and that he had recognized the accused persons. We have cross-checked this piece of evidence with the statement recorded under Section 161 Code of Criminal Procedure This witness did not name Gopal at all before the Investigating Officer and that Gopal called him by name. That Rahna Gour shot him with an arrow on his right hand is not supported by any medical evidence. It was a foggy winter night. The witness did not speak of any torch light in his possession with which he had identified Gopal and Rahna. It is, therefore, highly doubtful whether he could have seen the accused persons properly as claimed by him. The witness was with the police from immediate after the occurrence. Omission on his part to tell the I.O. about the names of Gopal, who apparently took the leading part and Rahna who had shot an arrow, render his evidence highly suspicious. This suspicion is reinforced by P.W. 3 Md. Mustafa Ahmed, the star witness of the case who told that he had a discussion with this witness about the names of probable assailants. 14. P.W. 3 Mustafa Ahmed is the son of P.W. 2 Taheruddin. At the time of occurrence, he was 15/16 years old. This suspicion is reinforced by P.W. 3 Md. Mustafa Ahmed, the star witness of the case who told that he had a discussion with this witness about the names of probable assailants. 14. P.W. 3 Mustafa Ahmed is the son of P.W. 2 Taheruddin. At the time of occurrence, he was 15/16 years old. He has stated that on 14th December, 1992, around 10 P.M., he was preparing for his annual examination. He was reading in his room in the light of a lamp. His father (PW-2) was guarding the paddy in a filed 50 metres away. Accused Gopal came calling his father "Munshi, Munshi". The witness could recognize him by voice who was his neighbour. He told Gopal that his father was not at home and that he was guarding the paddy in the field. Then Gopal and 12/14 persons who came along with him started thrusting daggers, spears, etc. on the wall. They opened the bamboo door and saw Gopal, Hari Singh and Kailash standing at the door. Gopal assaulted him with a spear on his leg. He pulled it out. He recognized them in the light of the lamp. He was dragged out and then he saw Haren Sarkar and Rahna Gour. They were armed with daos, daggers, arrows etc. PW 3 ran towards the field. Hearing hue and cry, his father (PW 2) was coming forward. PW 2 forbade him not to come and he ran towards the field. Inside the house, his mother and two sisters Bimala and Hajera were being hacked. He did not recognize the persons who had assaulted them. Returning home about 15 minutes later, he found his mother lying in a critical condition. He called the villagers and with their help brought his mother back home. His sisters were lying dead. Their bodies were also taken to the house. By that time, his mother died. They saw a CRPF vehicle approaching the place of occurrence. The witness and his father carried the dead bodies to the road. The CRPF personnel came to their house. Police came and took him and their labourer Jakir to the police station first and therefrom to the civil hospital. Zakir and he had sustained injuries. This witness claims to have seen Gopal, Hari Singh, Kailash, Haresh Sarkar and Rahna Gour. 15. The CRPF personnel came to their house. Police came and took him and their labourer Jakir to the police station first and therefrom to the civil hospital. Zakir and he had sustained injuries. This witness claims to have seen Gopal, Hari Singh, Kailash, Haresh Sarkar and Rahna Gour. 15. P.W. 7, the Investigating Officer proved an important contradiction with regard to the statement of P.W. 3 to the effect that P.W. 3 did not tell him about any lamp and about Gopal calling his father by name. The Investigating Officer also proved another contradiction which shows that P.W. 3 did not tell him that after opening the door, he found Gopal, Hari Singh and Kailash and that Gopal stabbed him with a spear. 16. P.W. 4 Md. Hanif Ahmed is the son of P.W. 2 Md. Taheruddin. At the time of occurrence, he was in the kitchen along with his brother Jakir Hussain. His brother Mustafa (PW 3) was in the southern house along with his younger brother Rahim. In the western house, his mother Sahara Khatoon and his six sisters were staying. His father was in the paddy field at a distance of 8 nals. Around 10 PM, the accused persons attacked their house from all sides. He woke up and heard the crying of his brother Mustafa. Accused Kailash, Hari Singh and Ratan entered his room and took away Jakir. P.W. 4 took shelter behind the banana trees from where he saw the occurrence. His mother came out of the house. Accused Gopal', Kailash, Ghandul, Krishna and Haren doctor dealt with blows on his mother. His mother died on the spot. His sister Hazira aged 10 years came out. She was also assaulted by Budhuram, Tinu, Hari Singh and Rahna. His other three sisters escaped. His younger sister Bimala aged about 4/5 years came out. She was also assaulted by accused Gopal, Ratan and Haren Doctor. The accused persons also assaulted Jakir. After the accused persons left, his father came to the house from the paddy field. The Army personnel also came there. He saw the dead body of Hazira and Bimala. His mother was in a critical condition. She died within ten minutes. They recovered Jakir from the field in an injured condition. Jakir and Mustafa were sent to Nagaon Civil Hospital for treatment. The three dead bodies were sent to Nagaon. The Army personnel also came there. He saw the dead body of Hazira and Bimala. His mother was in a critical condition. She died within ten minutes. They recovered Jakir from the field in an injured condition. Jakir and Mustafa were sent to Nagaon Civil Hospital for treatment. The three dead bodies were sent to Nagaon. He further claimed that he could recognize the accused persons in the moon light as they were from the same place. 17. P.W. 7, the Investigating Officer, proved the contradictions with regard to P.W. 4 to the effect that he did not tell him that Kailash and Ratan dragged him out and inflicted injuries on him or that he has been able to recognize the accused persons by moon light. These contradictions proved by P.W. 7 in respect of P.Ws 3 and 4 have been cross-checked by us with the statement recorded under Section 161 Code of Criminal Procedure P.W. 4 has named Ratan before the Court who had allegedly entered his room and took out Jakir. But Ratan has not been named before the Investigating Officer. Therefore, from this witness, we find evidence against accused Kailash, Ghandul, Krishna, Haren, Budhuram, Tinu, Hari Singh and Rahna. There is nothing said about Ratan by PWs 2 and 3. Therefore, there is doubt about his presence as claimed by the P.W. 4. So far Ghandul and Budhuram are concerned, we find that it is only P.W. 4 who had stated about their presence and participation in the alleged crime. He is not supported by P.Ws 2 & 3 in this regard. In our considered opinion, there is doubt about the presence of Ratan, Ghandul and Budhuram at the time of occurrence. In so far Krishna Gour, Kailash Gour, Hari Singh, Haren Sarkar end Rahna are concerned, we find that P.Ws 3 and 4 have been indicted them as their assailants. P.Ws 3 and 4 were inside the house and had the opportunity to see the actual occurrence. In the process, they could recognize Kailash Gour, Krishna, Hari Singh, Haren Sarkar and Rahna. P.W. 3 was reading inside the room and he could recognize them in the light of a lamp. After opening the door, he also saw Gopal (since deceased), Hari Singh, Krishna, Haren and Rahna. Therefore, his evidence against these five persons cannot be discarded. In the process, they could recognize Kailash Gour, Krishna, Hari Singh, Haren Sarkar and Rahna. P.W. 3 was reading inside the room and he could recognize them in the light of a lamp. After opening the door, he also saw Gopal (since deceased), Hari Singh, Krishna, Haren and Rahna. Therefore, his evidence against these five persons cannot be discarded. The evidence of P.W. 4 against Gopal (dead), Kailash, Krishna and Haren is also reliable. He had identified them in the moon light from a close proximity. The other accused Ghandul, named by P.W. 4, is entitled to benefit of doubt since he has not been named by P.Ws. 2 and 3. 18. From this discussion, it appears that the prosecution has succeeded in establishing the charge against Kailash Gour, Krishna Gour, Harendra Sarkar, Hari Singh Gour and Rahna Gour. The other three Appellants, namely Ratan Das, Gundulu Gour and Budhu Timang are entitled to acquittal on benefit of doubt. 19. Mr. Choudhury, learned senior counsel for the Appellant argued that the witnesses were in close proximity of the police and they did not name the accused persons immediate after the occurrence. In his opinion, there was deliberation amongst the witnesses and eventually the names of the accused persons were mentioned. In our opinion, non-disclosure of the accused persons immediate after the occurrence cannot be faulted with. Dead bodies of three near and dear persons were lying scattered in the courtyard. P.W. 2 was busy with treatment of his son (PW. 3) and postmortem of the dead bodies of his wife and" two daughters. They were in a state of great shock. In such a situation, the delay in mentioning the names cannot be fatal. 20. Mr. Choudhury, learned senior counsel raised doubt about the impartiality of the investigating agency. The entries in the case diary show that on the following morning of the occurrence, accused Gopal and four others were brought to the police station for interrogation. It was around 9.15 A.M. The Investigating Officer recorded the statement of the witnesses (PWs 2, 3 and 4) at 11.10 A.M. onwards. The witnesses, however, did not implicate the aforesaid five persons except Gopal, since deceased. We do not find any reason to hold that the Appellants have been prejudiced by this action of the police. 21. Mr. It was around 9.15 A.M. The Investigating Officer recorded the statement of the witnesses (PWs 2, 3 and 4) at 11.10 A.M. onwards. The witnesses, however, did not implicate the aforesaid five persons except Gopal, since deceased. We do not find any reason to hold that the Appellants have been prejudiced by this action of the police. 21. Mr. Choudhury also raised grievance on the ground that there was delay in lodging the ejahar. The ejahar was filed on the next day i.e. 15.12.1992 at 11 P.M. wherein the names of the accused persons were reflected. There was obviously delay. P.W. 2 lodged the ejahar. He had lost his wife and two minor daughters. His son Mustafa was also injured in the occurrence. P.W. 2 was busy with the dead bodies and injured Mustafa and his servant Md. Jakir. A man placed in such a situation may not be able to lodge the ejahar at the first brush. This delay in our opinion stand explained in view of the barbarous attack launched by the assailants in which three precious lives were lost. The state of mind of a person in such a situation can be well guessed and it would be unreasonable to expect him to act like a prudent man and to lodge the ejahar without loss of time. That apart, a G.D. entry was already there with the investigating Officer. There was no urgency to have a written ejahar from the complainant for the purpose of investigation of the case. 22. The argument that no identification parade was held by the police for identification of the accused persons has no significance since the evidence disclose that the accused persons were known to the witnesses from before. In the given circumstances, the identification parade would have been a futile exercise. 23. From discussion above, we are of the view that the conviction and sentence imposed upon Kailash Gour, Krishna Gour, Harendra Sarkar, Hari Singh Gour and Rahna Gour are liable to be sustained, while Ratan Das, Gundulu Gour and Budhu Timang are entitled to acquittal on benefit of doubt. 24. In the result, we partly allow the appeal affirming the conviction and sentence of Kailash Gour, Krishna Gour, Harendra Sarkar, Hari Singh Gour and Rahna Gour and acquitting Ratan Das, Gundulu Gour and Budhu Timang on benefit of doubt.