JUDGMENT Aftab H. Saikia, J. 1. Since correctness and justification of imposition of the death sentence to Sonahar Ali @ Sunur Ali, the Appellant in the jail appeal being Criminal Appeal No. 82(J)/08 preferred by the Appellant from jail and the Respondent in Criminal Death Sentence Reference No. 1 of 2008 (hereinafter referred to as 'the Appellant'), by the learned Additional Sessions Judge, (FTC) Karimganj (for short the learned Judge) by judgment and order dated 13.5.2008 in Sessions Case No. 94/03, have been questioned in both the Criminal Jail Appeal as well as death reference above noted and both the cases having carried common questions of law structured on exactly identical and similar facts situation, they are being taken up together for analogous hearing. 2. We have heard Mr. Z. Kamar, learned Public Prosecutor, Assam appearing on behalf of the State as well as Mr. A.K. Goswami, learned Senior Advocate, appointed as Amicus Curiae keeping in view the seriousness and importance of the jail appeal, assisted by Ms. B. Sarma the learned Counsel on behalf of the Appellant from jail. Having given our thoughtful consideration to the comprehensive arguments canvassed on behalf of the Appellant and the State, both the appeal and the death reference are being disposed of by this common judgment and order. 3. The Appellant herein was convicted by the learned Judge under Sections 302, IPC read with Section 149, IPC as he was found guilty of commission of offences of killing of as many as nine persons, out of which seven including four children were from the same family and two rescuers, in a most diabolic, dastardly and barbaric manner by forming unlawful assembly. All those precious lives had been taken way when their house was set on fire by confining them inside the house. Having found the incident being fallen in the category of rarest of the rare cases, the learned Judge sentenced the Appellant with death. 4. Being highly aggrieved by such conviction and sentence, the Appellant preferred the appeal from jail being Criminal Appeal No. 82(J)/08 as already indicated above. The matter has also been placed before us as Death Sentence Reference being 1/08 for confirmation of the sentence of death as recorded herein above. 5. 4. Being highly aggrieved by such conviction and sentence, the Appellant preferred the appeal from jail being Criminal Appeal No. 82(J)/08 as already indicated above. The matter has also been placed before us as Death Sentence Reference being 1/08 for confirmation of the sentence of death as recorded herein above. 5. The prosecution case in brief as unfolded in the FIR that was lodged at about 3.30 p.m. on 16.12.1999 with Ratabari Police Station in the district of Karimganj by one Najafat Ali who died during the trial, is that at around 11.00 p.m. at night on 15.12.1999 a gang of 10-15 miscreants all armed with guns, pistols, dao, 'bhojali' etc., trespassed upon his house confining his step son, daughter-in-law, children and their mother, set the house on fire. When he came out and raised a commotion, they spared him because of his old age, however, pointing a 'bhojali' at him, they asked him to keep mum. The fire ravaged the house while his step son, daughter-in-law, mother and children were crying for help. When the neighbouring people came there to help them, the miscreants fired their guns preventing them from coming near. When Atar Ali and Makaddas Ali, (PW 11) both being sons of neighbour Abdul Mannaf, came to offer resistance, the miscreants attacked them by firing by their guns and hacked them. Atar Ali, a man of 36 years died on the spot and Makaddas Ali (PW 11) sustained grievous injuries. After the fire completely ravaged the house and killed the inmates, the miscreants went away towards Paschim Pahar. From among the miscreants, he recognized co-villager late Kakai Mian's two sons namely Sunur Ali (the Appellant) and Anowar Ali @ Kuty Sona and Rais Ali's son Ustar Ali @ 'Gane'. Sunur, Anowar and others caused the incident out of previous grudge. The fire destroyed the furniture, paddy, rice goats chickens etc. in the house. 6. In the FIR, the names of those killed by the fire were mentioned and they were as follows: (1) Surman Ali @ Kuty (40 years), S/o Lt. Ilash Ali, (2) Joban Ali (50 yrs), S/o Lt. The fire destroyed the furniture, paddy, rice goats chickens etc. in the house. 6. In the FIR, the names of those killed by the fire were mentioned and they were as follows: (1) Surman Ali @ Kuty (40 years), S/o Lt. Ilash Ali, (2) Joban Ali (50 yrs), S/o Lt. Ilash Ali, (3) Sabejan Bibi (70 yrs), wife of Ilash Ali, (4) Ashiya Begum (35 yrs), wife of Surman Ali, (5) Najma Begum (14 yrs), daughter of-do-, (6) Roshna Begum (12 yrs) daughter of-do-, (7) Hafsa Begum (7 yrs) daughter of-do-, (8) Ayesha (minor) 2 yrs daughter-do- 7. Initially the following accused persons were charge-sheeted namely (1) Sonahar Ali @ Sunur Ali, (the Appellant) son of Late Nimar Ali @ Kolai Miyan of village Betubari under Ratabari PS of Karimganj district, (2) Anowar Ali @ Kuti Suna, son of Late Nimar Ali @ Kolai Miyan of village Betubari under Ratabari PS of Karimganj district. (3) Rois Ali, son of Late Mozeer Ali of village Betubari under Ratabari PS of Karimganj district. (4) Ustar Ali @ Gane, son of Md Rois Ali of Betubari under Ratabari PS of Karimganj district (5) Muslim Uddin @ Islam Uddin, son of Late Rosman Ali of village Andurpar under Ratabari PS of Karimganj District and (6) Nizam Uddin @ Nazim Uddin, son of Haji Aftab Ali of village Manikband under Patharkandi PS of Karimganj district. 8. However out of those six persons, four accused, namely Ustar Ali © Gane, Anowar Ali, Rois. Ali and Nizam Uddin @ Nazim, on being granted bail after their arrest, jumped bail and absconded. They were declared proclaimed offenders. 9. The Appellant along with one Muslim Uddin © Islam Uddin Talukdar faced the trial. 10. On completion of the trial and on having appreciated and evaluated the testimony of as many as 21 witnesses so produced by the prosecution to prove its case, the learned Judge found Muslim Uddin not guilty as there were no incriminating materials available against him on record to rope him in for the offences under Section 302, IPC read with Section 149, IPC and accordingly he was acquitted. However, learned Judge was of the clear view that the Appellant was guilty of offences under Sections 302/149, IPC and keeping in view the barbaric act of brutal killing of 9(nine) innocent persons, awarded the death sentence to him. 11. However, learned Judge was of the clear view that the Appellant was guilty of offences under Sections 302/149, IPC and keeping in view the barbaric act of brutal killing of 9(nine) innocent persons, awarded the death sentence to him. 11. Basically the prosecution case was founded, as has been submitted by the learned Public Prosecutor on the evidence of 4 (four) eye-witnesses namely PW1 Musst Saifa Bibi, PW 12-Abdul Khalique, PW 15 Musst. Misba Begum and PW 17-Abdul Karim whose depositions were found to be reliable and trustworthy by the trial Court. The prosecution also relied upon the testimony of Akaddas Ali (PW 3), Makaddas Ali (PW 11), Sunahar Ali (PW 16) and Asab Ali (PW 18). Three witnesses namely PW 2, Mustt. Raimun Nessa, PW 6, Musstt. Mayajan Bibi and PW 7 Musstt. Phulcha Bibi were declared 'hostile' by the prosecution. 12. In support of the jail appeal and impugning the conviction and capital punishment, it is argued on behalf of the Appellant from jail that (i) all the four so-called eye-witnesses, so examined by prosecution so as to prove the case on the basis of their ocular evidence, were totally unbelievable, unauthentic and unreliable because their depositions do not inspire any confidence for the impugned conviction and sentence of the Appellant and had the same been taken into consideration in its totality, the Appellant would have certainly been acquitted, (ii) That apart, it is also contended representing the Appellant that there were major discrepancies and inconsistencies in the evidence of those eye-witnesses i.e. PW 1, PW 12, PW 15 and PW 17 and the same would be candidly apparent if those are read conjointly with testimony of other witnesses namely PW 11 Makaddas Ali, who was also injured in the incident, PW 2 Musstt. Raimun Nessa, PW 9 Shri Haridas Sinha and PW 18 Md. Asab Ali, General Secretary of VDP. Raimun Nessa, PW 9 Shri Haridas Sinha and PW 18 Md. Asab Ali, General Secretary of VDP. Both PW 9 and PW 18 were projected by the prosecution as independent witnesses, (iii) In fact, the testimony of all those four eye-witnesses suffered from serious infirmities and as such the same cannot be relied upon, (iv) More importantly, there is no sufficient evidence to show that the Appellant acted as a leader as hinted by PW 17, Abdul Karim and incited any of the co-accused to set the house on fire killing all those innocent nine persons nor has any evidence been brought out to establish that the incident took place in prosecution of common object, (v) It is also placed on record on behalf of the Appellant that the medical evidence adduced by PW 20, Dr. Homes-war Sarma also indicated that one late Joban Ali of Pashim Betubari, who was reported to be fired by the Appellant by gunshot, as per deposition of PW15, Musstt. Musfa Begum, one of the four eye-witnesses, did not carry any bullet injury in his person. Should the testimony of this witness, the Doctor, including the four eyewitnesses is taken into consideration in its entirety, it would go to prove outright that the Appellant was not involved in killing of the deceased persons, (vii) Besides, it is also stated that there is no unlawful assembly to rope in the Appellant under Section149, IPC inasmuch as if the evidence of PW 1 Musstt. Saifa Bibi, being key witness, is minutely scrutinized, it would candidly reveal that except accused Ustar Ali, Anowar Ali and the Appellant, she did not see any other men at the place of occurrence and also did not attribute any incriminating evidence against the Appellant, (vii) It is also submitted that although the Police Station did situate only at a distance of 6 km from the place of occurrence and when the incident itself took place at about 11.00 p.m. on 15.12.1999, the FIR was lodged only at 3.30 p.m. on 16.12.1999 after a delay of 28-1/2 hours that gave enough time for improvement of the case. 13. 13. That being the position, urged by the learned senior counsel, if the deposition of all the witnesses including the four witnesses as mentioned above is meticulously analysed and properly evaluated in its entirety, there is no scope to implicate the Appellant under Section 302 read with Section 149, IPC and to convict and sentence him to death accordingly. As per Mr. Goswami, the learned Amicus Curiae, in absence of any evidence, the crime for which the Appellant is charged with, cannot be termed as a rarest of the rare cases calling for the extreme penalty of death even though admittedly 9 persons had lost their valued live. Rather it is a clear and fit case where the Appellant is entitled to get acquittal on benefit of doubt. 14. Per contra, Mr. Z. Kamar, the learned Public Prosecutor, has vehemently argued that having considered the entire facts situation basically relying on the four eye-witnesses, the trial Court was totally convinced and highly impressed to hold that the case at hand would definitely fall within the category of rarest of the rare cases. It is forcefully contended that even there was no material to sentence the Appellant for imprisonment for life and the learned Judge was wholly justified and absolutely correct in imposing the death sentence having found him guilty under Section 302, IPC read with Section 149, Code of Criminal Procedure. 15. The basic thrust of the learned Public Prosecutor is that it is a case that falls exactly under Section 149, IPC. Out of the named six accused persons, although four had jumped bail after having been granted bail and they were since declared to be absconders, all those accused persons formed unlawful assembly and committed the offence in prosecution of the common object. The Appellant, being a member of unlawful assembly, committed the crime of killing all those nine persons amongst them eight persons were family members, putting them inside the house that was set on fire. 16. The Appellant, being a member of unlawful assembly, committed the crime of killing all those nine persons amongst them eight persons were family members, putting them inside the house that was set on fire. 16. Learned Public Prosecutor has strenuously submitted that although there is no such direct evidence to be found from the testimony on the basis of ocular evidence of PWs 1, 12, 15 and 17 that the Appellant took active part in committing the offence, his presence itself is, as proved by all the prosecution witnesses, enough and sufficient to rope him in under Section 149, IPC read with Section 302, IPC and there is no option, keeping in view the crime committed by him, to award him any other sentence other than the death sentence and the extreme penalty as handed down by the trial Court may, therefore, be confirmed. It is further submitted by the learned Public Prosecutor that the evidence of those four witnesses cannot be said to be uncorroborated and unreliable. Even other remaining prosecution witnesses who were also examined, wholly corroborated the statements made by those four witnesses and consequently they supported the case of the prosecution. The same would go to clearly reveal that the Appellant, being the named accused in the FIR itself, was involved in the charged offence. The evidence of PW16 Sunahar Ali and PW18 Md. Asab Ali is also categorically indicative that along with other accused, the Appellant was very much present in the commission of the instant brutal crime and he accordingly cannot escape his conviction under Section149, IPC. 17. In support of his submission as regards involvement of the Appellant in the crime along with other accused under Section 149, IPC, the learned Public Prosecutor has strongly relied upon the following judicial authorities: (1) Bikau Pandey and Ors. v. State of Bihar reported in (2003) 12 SCC 616 : AIR 2004 SC 997 and (2) Bishna alias Bhishwadeb Mahato and Ors. v. State of West Bengal reported in (2005) 12 SCC 657 . 18. Careful consideration has been given to the extensive submissions so advanced on behalf of the parties. We have also thoroughly evaluated and meticulously analysed the evidence of the witnesses so examined by the prosecution more particularly the set of evidence so testified by the eye-witnesses namely PW 1 Mustt. Saifa Bibi, PW 12 Abdul Khalique, PW 15 Musst. 18. Careful consideration has been given to the extensive submissions so advanced on behalf of the parties. We have also thoroughly evaluated and meticulously analysed the evidence of the witnesses so examined by the prosecution more particularly the set of evidence so testified by the eye-witnesses namely PW 1 Mustt. Saifa Bibi, PW 12 Abdul Khalique, PW 15 Musst. Misba Begum and PW 17 Abdul Karim including the testimony of PW 2 Musst. Raimun Nessa (declared hostile), PW 3 Akaddas Ali and PW 9 Sri Haridas Sinha, PW 11, Makad-das Ali, (injured), PW 16 Sunahar Ali and PW 18-Md. Asab Ali. 19. Now let us critically examine what the eye-witnesses stated in their ocular evidence. PW 1, Musstt Saifa Bibi in chief deposed as under: I know the accused persons present (at the dock today). I also knew complainant Nazafat Ali. He is my sister's husband. Najafat Ali died some 5 months ago. Around 11 p.m. one day some 3½-4 years ago I had been at home. It was the sixth day of the month of Ramadan. At that time I was busy cooking. Hearing the sound of gunshot, I came out of my house. I heard accused Sunur Ali asking Surman Ali to come out of the eastern house in our homestead. When Surman Ali refused to come out, the accused persons namely Sunur Ali, Ustar Ali and Anowar Ali set Surman Ali's living house on fire. At that time Surman Ali's wife Asiya Begum, their four daughters namely, Nazma Begum, Roshna Begum, Ayesha Begum now I cannot recall the name of the fourth were, inside the house. Asiya Begum was pregnant at that time. After their house had been set on fire, they cried out from inside in order to get saved. But they failed to come out of the house. The entire house was burnt down within a short time and Surman Ali and his entire family were charred to death, Surman Ali's elder brother Joban Ali came out to save Surman Ali and his family. But some one from among them shot him and killed him by hacking with a dao. Surman Ali's mother Sobejan Bibi was there is a room of the house. The accused persons shot her as well and she was also charred to death. But some one from among them shot him and killed him by hacking with a dao. Surman Ali's mother Sobejan Bibi was there is a room of the house. The accused persons shot her as well and she was also charred to death. A little after the occurrence I found her neighbour Atar Ali lying dead near their house with bullet injuries. I also saw Atar Ali's brother Makram Ali lying near their house in an injured state. I was bleeding wounds in his head, hands, shoulders and back. Najafat Ali was Surman's step father. I gave statements before a Magistrate and police in connection with the incident. In her cross-examination this witness narrated the incident in the following terms: My husband's house is at Kalibari. It takes about 1-1/2 hours by bus to reach there from my paternal house. I have been living in the house where the occurrence took place since my husband's death 16 years ago. After my husband's death I did not go back to his house. Nor did I raise any demand for his properties. I purchased 1 powa of land near the P.O. and built his house thereon. My daughter and her husband live with me in the same plinth, albeit in a separate room. Surman Ali's house would be about a nal away from that of mine. A courtyard in the middle separates us. Surman Ali's house had a thatched roof. So is mine. The distance of 1 nal was measured in terms of 7 cubits. Surman Ali's house and that of mine are situated atop of hillock. My land has no boundary fencing. From my house the people on the road can be seen. Coming out of my house, I had seen smoke of gunfire. I can't say if the accused persons had spotted me. At that time nobody was with me. After the gunfire Joban Ali had come running towards the P.O. when Joban Ali had been coming, the fire had been ravaging the house. The accused persons had called out for some time and then set the house on fire. Accd Ustar Ali and Anowar Ali had started the fire. Except the three mentioned above, I had not seen any other man at the place of occurrence. None came to extinguish the fire. The accused persons had stayed at the P.O. for about half an hour. Accd Ustar Ali and Anowar Ali had started the fire. Except the three mentioned above, I had not seen any other man at the place of occurrence. None came to extinguish the fire. The accused persons had stayed at the P.O. for about half an hour. Accused Sonahar's house is close to the P.O. in the north. But he does not live there. Accused Sonahar had disputes with Surman Ali over landed properties. I had not tried to take out the belongings of my house since there was no chance of the fire spreading over to my house. Accused Ustar Ali had a flambeau in his hand. Anowar Ali had pulled out thatch from the roof of the house and by sitting fire to the thatch with the flambeau had set the house ablaze. All the three accused persons had been wearing half pants and vests. Sonahar and others had left our village two years before the occurrence. Arjan Ali's house is atop a hillock in the south of his house. Arjan Ali has five grown-up sons. Sakaot Ali's house is in the west. His family comprises 15 members including adults and minors. It is not true that in my statement to the police I did not say that Ustar Ali and Anowar Ali has set the house on fire. It is not true that I had not seen the accused persons at the P.O. and that they had not fire to the house. It is not true that I had not been at the P.O. at that time. I had heard the sound of four gunshots. It is not true that I did not tell the police about accused Sumur Ali's calling Surman. I did not tell the villagers about my recognizing the accused persons. Out of fear I had. gone into a jungle taking with me my grandchildren. My daughter too had gone out of the house. But I cannot say where she had gone. We had hidden into the jungle because the accused persons had gone to our house looking for us. We had come out of the jungle only after the accused persons had left. The night was still on. After the accused persons had left, my daughter Paimum Nessa came home with her six months old daughter. After my return home from the jungle I had stayed home till the police arrived the next morning. We had come out of the jungle only after the accused persons had left. The night was still on. After the accused persons had left, my daughter Paimum Nessa came home with her six months old daughter. After my return home from the jungle I had stayed home till the police arrived the next morning. It is not true that I did not tell the police that I had come out of the house on hearing the sound of gun shot. It is not true that she had not seen accused Sunur Ali at the P.O. Between the occurrence and arrival of the police I had not visited anybody else's house. From the time of his leaving our village till before the occurrence I had not seen Sunur Ali. Late Joben Ali was my son-in-law. It is not true that I have adduced false evidence against the accused persons for the sake of my son-in-law. It is not true that I had not known accused Sunur Ali from before. After the occurrence the accused person went towards the west. 19(a). This witness who claimed to have seen the entire incident herself was very specific in deposing that the basically saw three accused persons namely Sonur Ali (Appellant), Ustar Ali and Anowar Ali. She reinforced and reiterated her such claim in her cross stating that except those three persons she did not see any other man at the place of occurrence. According to this witness, it was the Appellant Sonur Ali who asked Surman Ali (one of the deceased) to come out to the eastern house in their housestead and when Surman Ali refused to come out, all those three accused persons set fire at Surman Ali's living house. But this piece of evidence appears to have been demolished by the deposition of PW 21, Kanti Bhusan Deb, Investigating Officer (IO) who in his cross straightly said that PW 1 did not tell him that Sunahar Ali called Surman Ali to come out of the house and that Sunahar Ali put fire in the house. 19(b). There is no single word from this witness as regards possession of any weapon in the hands of any of the three accused persons. 19(c). 19(b). There is no single word from this witness as regards possession of any weapon in the hands of any of the three accused persons. 19(c). She also deposed that Surman Ali's elder brother Joban Ali, who was her son-in-law, came out to save Surman and his family but some one from amongst them shot him and killed him by hacking with a dao. She did not name anybody who shot Jaban Ali, her son-in-law or who killed him by hacking with a dao. 19(d). She also specifically stated that coming out from her house she was smoke of gunfire and at that time nobody was with her. It would manifestly show that she was alone when she happened to see the incident although there were other witnesses who also claimed to witness the occurrence. 19(e). She also clearly testified that it was accused Ustar Ali and Anowar Ali who started the fire. She directly implicated both Ustar Ali and Anowar Ali by stating that accused Ustar Ali had a flambeau in his hand and Anowar Ali pulled out thatch from the roof of the house and by putting fire to the thatch with the flambeau he set the home ablaze. 19(f). According to her all three accused persons were wearing half pant and vest. 19(g). It was also her evidence that Sonar Ali (Appellant) and others had left their village two years before the occurrence. 19(h). She also stated that she did not tell the villagers about recognizing the village persons. 19(i). Out of fear, as evidenced by her, she went into a jungle taking with her grand children and although her daughter too had gone out of the house, she could not say where her daughter had gone. She told that they had hidden into jungle because the accused person had gone to their house looking for them. They came out from the jungle only and after accused persons had left. 19(j). Pertinent to mention herein that if the testimony of this eye-witnesses is to be believed and accepted, since her deposition is loud and clear as regards involvement of the accused persons in the offence confined to only three accused persons namely Appellant, Ustar Ali and Anowar Ali, the application of Section 149, IPC in the instant case does not arise at all. 20. 20. PW 12, Abdul Khalique in his examination-in-chief and also in cross stated as follows: I know accused Sonahar Ali who is present today. I also know accused Ustar, Anowar Ali, Moslemuddin and Rais Ali who are absent today. I do not know the rest of the accused persons. Around 11 p.m. one day about five years ago, I had been at home. About that time I heard the sound of gunshots coming from their neighbouring village Paschim Betubari. I came out from home to my courtyard. About that time Mullah Salimuddin, who lived in Kuty Mians house at Paschim Betubari came running to my house and told me that a gang of dacoits had attacked Kuty Mian's house and that they had set Kuty's house on fire and had been firing guns. On receipt of that information, I went to Kuty Mian's house and found his dwelling house being ravaged by fire. The fire was so intense that from a considerable area round it could be seen as celery as in the day light. I saw accused Sonahar Ali, Ustar Ali, Rias Ali, Anowar Ali and Moslemuddin standing in Kuty Mian's courtyard. Accused Sonahar was armed with a gun while accused Anowar was holding a pistol. The other accused persons were also armed with deadly weapons. I heard the wailing of children and grown up people coming form inside Kuty Mian's house which was on fire. Kuty Mian's wife Asiya Begum was his consanguine sister. Asiya, her husband, children and her mother-in-law all were burnt alive inside that house. I saw Kuty Mia's elder brother Joban Ali lying dead in the varandah of Kuty Mian's fire ravaged house and courtyard. In presence of police I later identified the body parts and skulls of the deceased persons. X X X From my house that of Kuty Mian is visible to the bare eyes. There was a 5 bigha plot situated length wise between the two houses. It is not true that my house is about 1½ kms away from that of Kuty Mian. At the time of occurrence there were seven members in my house. Coming out on to the courtyard I found Kuty Mian's house on fire. Immediately on receipt of the information from Salimuddin, I started for Kuty Mian's house. In the south of my house are the houses of Sadhan Dev and Sukuman Dev. At the time of occurrence there were seven members in my house. Coming out on to the courtyard I found Kuty Mian's house on fire. Immediately on receipt of the information from Salimuddin, I started for Kuty Mian's house. In the south of my house are the houses of Sadhan Dev and Sukuman Dev. In the east are the houses of Sashi Mohan Singha and Mani Singha. Other people's houses are there a little further on. Mullah Salimuddin told me that the dacoits had shot at Joban Ali. Mullah Salimuddin told me to have seen the dacoits conspiring to close the door to Kuty Mian's house and to set it on fire. It is not true that one requires about 15 minutes to walk to Kuty Mian's house from that of mine. It had taken me a couple of minutes or so to reach Kuty Mian's house. People (sic police) recorded my statement. There is only one road by which one can go to Kuty Mian's house from that of mine. Kuty Mian's house is in the plain. I had seen the accused persons from a distance of 6 or 7 nals. One nal is equivalent to seven cubit. On receipt of the information I alone had run along. I had not called any of my neighbours. The accused persons had been facing me. I had seen them from the cover of a plantain bush and for that reason they did not see me. The road running between my house and that of Kuty Mian can be seen from Kuty Mian's house. I had seen the occurrence from the southern side of Kuty Mian's house. His house stretches north-south. The dacoits had been in the courtyard and all around (the house). I had seen accused Sunur Ali, dressed in black trousers and black shirt, standing on the courtyard in front of Kuty Mian's door. I had noticed accused Sunur Ali turning his head this way and that and observing the surroundings. I had seen accused Anowar in the south of the window to the house. I had also noticed accused Rais Ali and Moslemuddin wondering about. Apart from the five mentioned above, I did not recognize any other man. It is not true that I did not tell the police about my seeing pistol in accused Anowar's hand. I had seen accused Anowar in the south of the window to the house. I had also noticed accused Rais Ali and Moslemuddin wondering about. Apart from the five mentioned above, I did not recognize any other man. It is not true that I did not tell the police about my seeing pistol in accused Anowar's hand. I had stood there for about half an hour and saw the incident. Someone had killed accused Sonahar Ali's father before the occurrence. A case had been instituted over that incident. I was named an accused in that case. I had summoned some 15/16 villagers to the place of occurrence. I had summoned Sirajud-din, Nena Mian, Iman Ali, Mannan Ali, Farizuddin, Moinuddin, Afsaruddin, Rajab Ali, Abdur Rouf, Sonahar Ali and others. It was around 4 O'clock in the morning when I came to Kuty Mian's house with other people. I told VDP Secretary, Sonahar Ali and others about my recognizing the accused persons. The people named above are my neighbours and while calling them out to the RO. I had told them my recognizing the accused persons. I myself and three others were named accused in the case arising out of accused Sunur Ali's father's murder. The names of those accused persons are Abdul Matin, Farizuddin, Surman Ali and myself Abdul Khalique. It is not true that I did not see the occurrence and that I have adduced false evidence against the accused persons because of my animosity with them. In the morning on the day after the occurrence I told my wife and other members of my family about his recognizing the accused persons. Accused Moslem was armed with a 'bhojali' while accused Rais had a spear in his hand. It is not true that I did not tell the police about my hearing the cries of people from inside the burning house of Kuty Mian. I did not lodge any ejahar. It is not true that I had not seen accused Sonahar Ali at the P.O. Kuty Mian's house was still burning when I left the place of occurrence in order to call people. Court: Q: How many days before this incident did accused Sonahar Ali's father's murder take place? Ans. The said murder had taken some 8/9 years before the instant incident. Q. Were you punished or acquitted in Sonahar Ali's father's murder case? Ans. We were acquitted. Court: Q: How many days before this incident did accused Sonahar Ali's father's murder take place? Ans. The said murder had taken some 8/9 years before the instant incident. Q. Were you punished or acquitted in Sonahar Ali's father's murder case? Ans. We were acquitted. 20.(a) PW 12, Abdul Khalique had projected a different story in his evidence as quoted hereinabove. According to him, it was one Mulla Salimuddin who came running to his house and told him that a gang of dacoit attacked Kuty Mian's house and they set fire at Kuty Mian's house and had been firing gunshot. In cross, also he reiterated that Mulla Salimuddin told him that the dacoits (without naming any of the accused) had shot at Joban Ali. Mulla Solimuddin also told him that he saw the dacoits conspiring to close the door of Kuty Mian's house and set it on fire. Significantly the said Mulla Salimuddin who informed,, this eyewitness about the dacoits and their conspiracy to close the door to Kuty Mian's house and set the house on fire, was not examined by the prosecution for the reasons best know to it. 20(b). According to this witness, on receipt of such information from Salimuddin, he alone had run along and he had not called any of his neighbours. Here also, this witness, like PW 1, went alone to the place of occurrence and that too without calling any neighbours. 20(c). He was also specific in his testimony by stating that when he went to Kuty Mian's house, he found his dwelling house being ravaged by fire and the fire was so intense that from a considerable area round, it could be seen as clearly as in the day light. There he saw Sonahar Ali (Appellant), Ustaf Ali and Rois Ali, Anowar Ali and Moslemuddin standing in Kuty Mian's courtyard. He stated that accused Sonahar (Appellant) was armed with a gun while Anowar was holding a pistol and other accused persons were also armed with deadly weapons. In cross, this witness explicitly deposed that accused Moslem was armed with a bhojali while accused Rais had a spear in his hand. 20(d). This witness was absolutely silent as regards any gun shot fired by gun or use of pistol in killing of those people. In cross, this witness explicitly deposed that accused Moslem was armed with a bhojali while accused Rais had a spear in his hand. 20(d). This witness was absolutely silent as regards any gun shot fired by gun or use of pistol in killing of those people. He also did not mention who set fire the house of Kuty Mian's except the information he received from one Mulla Salimuddin. 20(e). This witness had given different facts as regards wearing of dress. According to him, the Appellant Sonahar Ali dressed black trousers and black shirt and not half pant and vest as deposed by PW1. 20(f). In cross, he also stated that before the occurrence some one killed the father of the Appellant Sonar Ali and a case was instituted over the said incident and he was also a named accused in the said case. Answering to a question put by the Court, this witness told that the father of the Appellant was murdered 8/9 years ago before the instant incident and they were all acquitted. 20(g). It is also seen from the evidence of this witness that when he came to the house of Kuty Mian with other people it was around 4 O'clock in the morning which would go to show that this witness did not come immediately around 11 p.m. when Kuty Mian's house was set on fire. He also stated that in the morning on the day of occurrence he told his wife and other members of his family about recognizing of the accused persons. 20(h). According to this witness, he told VDP Secretary, (PW 16) and others about recognizing the accused persons. 20(i). He also informed that he along with Abdul Matin, Fariz Uddin, Sorman Ali (one of the deceased killed in the incident) were named accused in the case of Sonahar Ali's father's murder. 20(j). According to him, he saw five persons only named above including the Appellant in the courtyard without mentioning anything regarding their overt act of omission or commission. 20(k). It is to be carefully noticed that this witness in one place testified that on receipt of information from one Salimuddin, he came alone without calling any, neighbour, but contradicting his own statetment, in cross, he deposed that when he came with other people to the house of Kuty Mian, it was 4 O'clock in the morning. 21. PW 15, Mustt. 21. PW 15, Mustt. Misba Begum in her evidence both in chief and cross testified as follows: I know accused Sonahar who is present today. I also know accused Ustar Ali, Moslemuddin @ Islamuddin, Anowar Ali, Rais Ali and Nizamuddin. Late Surman Ali @ Kuty Mian was the younger brother of my late father Joban Ali. Around 11 p.m. one day some six years ago, I had been at home. My father and late Surman, who was my paternal uncle, used to live in the said compound, albeit in separate houses. Around the time as mentioned above, the accused persons named above caused a commotion. Hearing the commotion, I woke up from sleep. My father Joban Ali came out of his house. So did I. Hearing Surman Ali @ Kuty Mian shouting for help from his house, my father went in that direction. But accused Sunur Ali shot at him. I saw fire on all sides of Kuty Mian's house. I heard the sound of gunshot in his house. At the time of occurrence I saw accused Sunur Ali, Ustar Ali, Anowar Ali and two others in our courtyard. In order to save our lives my mother Ramna Bibi, my Sibling and I myself took shelter in the jungle. Returning home the next morning, I found my paternal uncle Kuty Mian's dwelling house and cowshed destroyed by the fire. Kuty Mian, his wife Asiya Begum, Kuty Mian's four daughters namely Najma Begum, Rumna Begum, Hafsa Begum and Ayesha Begum and my grandmother Syeda Bibi had all been burnt to death. Deceased Asia Begum was pregnant at that time. I saw my father's burnt dead-body lying on the verandah near the door of Kuty Mian's burnt house. Cattle and goats had all died by burning inside the cowshed. The next day I saw Atar Ali's dead body lying on the ridge in the west of our house. I saw piercing injuries in his head and chest. I saw Makaddas Ali in an injured state in his house. x x x I have studied upto Class-IV. I stopped attending school some six years ago. I had witnessed the occurrence, standing at the doorway. Our house was some 7 or 8 cubits behind that of Kuty Mian. Our courtyard was in the backside of Kuty Mian's house. Kuty Mian's courtyard was in front of his house. x x x I have studied upto Class-IV. I stopped attending school some six years ago. I had witnessed the occurrence, standing at the doorway. Our house was some 7 or 8 cubits behind that of Kuty Mian. Our courtyard was in the backside of Kuty Mian's house. Kuty Mian's courtyard was in front of his house. No other person had come out when father and I had come out of our house on hearing the commotion. My father had been shot in the chest. He had also been hacked in his abdomen. At first I had heard the voice of accused Sunur. Sunur asked Kuty Mian "Where the your 500 men? Now come and beat me." All the inmates of Kuty Mian's house had been shot. We had taken shelter in Ebar Ali's house for the night. Father had been shot at when he had gone near Kuty Mian's house. I could not recognize five dacoits. I cannot say if there were other people with them. Accused Ustar Ali had set the house on fire from all sides. Police interrogated me. I told the police about one of the dacoits asking Kuty Mian to open the door. I also told the police about the dacoits kicking the door. It is not true that I did not tell the police about my coming out of the house with father. It is not true that I had not come out of the house and had not seen father being shot at. It is not true that I had not seen accused Sunur Ali. I told my mother and my grandmother Saifa Bibi about her seeing Sunur Ali. Accused Sunur had been dressed in black. All the people had been dressed in black. It is not true that I had not recognized the people who had killed my father and paternal uncle. We had not raised any shout during the incident. I told Ebar Ali about accused Sunur's and Ustar's killing my father and paternal uncle. Sunur had a pair of boots on. It is not true that I have adduced false evidence against the accused Sunur out of grudge. It is not true that accused Sunur was not involved in the incidents of dacoity and murder that took place in our house. My maternal uncle Khaleque came to the P.O. the day after the occurrence. Sunur had a pair of boots on. It is not true that I have adduced false evidence against the accused Sunur out of grudge. It is not true that accused Sunur was not involved in the incidents of dacoity and murder that took place in our house. My maternal uncle Khaleque came to the P.O. the day after the occurrence. He asked me as to who had committed the incident. I told him the names of accused persons then. First my father and grandmother had been shot dead and then the house had been set on fire. It is not true that I had not seen the occurrence. 21(a). This witness, PW 15 was the daughter of late Joban Ali, the deceased who was said to be killed by gunshot being fired by some one amongst those three persons namely the Appellants, Ustar Ali and Anowar Ali as deposed by PW 1 already as quoted above. From above appreciation of the evidence of this Court would reveal as under: 21(b). That on the day of occurrence around 11 p.m. hearing a commotion she woke up from the sleep and her father Joban Ali came out from the house. She also accordingly came out. 21(c). Hearing Surman Ali @ Kuty Mian shouting help from his house, her father went to that direction but the Appellant Sunhar Ali shot at him. She saw fire on all the sides of Kuty Mian's house. 21(d). That apart, interestingly this witness also said in cross that no other persons came out when her father (deceased Joban Ali) and she came out of her house on hearing the commotion. According to her, her father was shot in the chest and he was also been hacked in his abdomen but she did not mention who shot her father in chest and who hacked her father in his abdomen. 21(e). She also went to tell that all the inmates of Kuty Mian's house had been shot. However, there was no whisper who shot those persons. She did not mention as regards any weapons like gun, pistol etc. being in possession of any of the accused persons. 21(f). At the time of occurrence she saw accused Sonur Ali (Appellant), Ustar Ali and Anowar Ali and two others (without mentioning their names) in their courtyard. However, there was no whisper who shot those persons. She did not mention as regards any weapons like gun, pistol etc. being in possession of any of the accused persons. 21(f). At the time of occurrence she saw accused Sonur Ali (Appellant), Ustar Ali and Anowar Ali and two others (without mentioning their names) in their courtyard. As per this witness, she mentioned specifically the names of three persons and those were the Sonur Ali (Appellant), Ustar Ali and Anowar Ali and she did not mention the name of other two persons. 21(g). She also stated that she told her mother, PW 2 and grand mother Saifa Bibi (PW 2) about her seeing Sonur Ali, who was dressed in black. 21(h). As regards the taking shelter in jungle she contradicted herself in her own examination-in-chief and cross-examination with that of PW 1, her grand mother, Sofia Bibi. According to this witness, in-chief, she clearly deposed that in order to save her life, her mother Ramna Bibi (PW 2), her sibling and herself took shelter in the jungle without naming her grand mother (PW 1). However at the same breath, in cross, she stated that they took shelter in the house of one Ebar Ali for the night. 21(i). She also stated that she would recognize 5(five) dacoits. She failed to say if there were other people with them. 21 (j). She was specified in deposing that it was accused Ustar Ali who set the house at fire from all sides. 21(k). She told that they had not raised any shout during the incident. 21(1). Most importantly, apart in her story is that her maternal uncle Khaleque (PW 12) came to the P.O. day after the occurrence which wholly corroborated with the evidence of PW 12 Khaleque himself who clearly deposed that it was around 4 O'clock in the morning when he came to Kuty Mian's house with other people. 21(m). She further developed a new story by evidencing that it was her father and grandmother (PW 1) who had been shot dead first and then the house was set on fire. 22. Having considered the testimony of these witnesses along with evidence of PW 12 we have no hesitation to hold that PW 12 cannot be the eye-witness to the occurrence. 22. Having considered the testimony of these witnesses along with evidence of PW 12 we have no hesitation to hold that PW 12 cannot be the eye-witness to the occurrence. Even we are unable to persuade ourselves to rely on the evidence of this witness PW 15 as trustworthy and genuine as an eye-witness. Another significant aspect of her evidence is that in the penultimate sentence of her cross-examination, she testified that first her father and grandmother was shot dead and then the house was set on fire which is directly in contradiction with her own evidence in chief as well as PW 1 who testified that when they came out, they saw fire in all sides of Kuty Mian's house and Joban Ali was shot dead when he came to save the family of Surman Ali who was inside the house and PW 1 never said anywhere that she was ever shot. The entire evidence of PW 15 casts doubt on its credibility and reliability. Even her presence at the place of occurrence itself is questionable. 23. PW 17, Abdul Karim deposed in examination-in-chief saying as follows: I know accused Sonahar Ali who is present (at the dock) today. I also know the absent accused persons namely Rais Ali, Moslemuddin @ Islamuddin, Ustar Ali and Nizamuddin. Around 11 p.m. one day some six years ago, I had been in Kala Mian's house. About that time we heard a commotion arising from towards Kuty Mian @ Surman Ali's house. Coming out from the house we saw a fire blazing in that direction. That was a moonlit night in the month of Ranadan. I alone went towards Surman Ali's house and from above the hillock of Arjan Ali saw Surman Ali @ Kuty Mian's house on fire. I, too, raised a commotion. In the glow of the fire I saw accused Sonahar Ali and 15/16 others in Surman's house. They were standing near the fire. When I shouted, one of the accused Sonahar's accomplices said, "Fire at Karim". They fired guns at me, but the bullets missed the mark. When they started firing, I went away from that place out of fear. The next morning I went to Kuty Mian's house and found that his dwelling house and cowshed had been completely ravaged by the fire. They fired guns at me, but the bullets missed the mark. When they started firing, I went away from that place out of fear. The next morning I went to Kuty Mian's house and found that his dwelling house and cowshed had been completely ravaged by the fire. Kuty Mian and the members of his family had been burnt to death inside the house. I saw the charred remains of the dead bodies. I saw the dead body of Kuty Mian's brother Joban Ali lying on the verandah of Kuty's burnt house. I noticed holes in Joban Ali's chest. The goals, paddy poultry, utensils etc. in the house had all been reduced to ashes. I saw Atar Ali's dead body lying in a drain in the west of Kuty Mian's house. Kuty Mian's step father Najafat Ali told that accused Sonahar and his group had closed the door and windows to Kuty Mian's house from the outside and had set the house on the fire from all sides. I also came to know from Najafat Ali that because of the fire Kuty Mian, his mother, wife and his four daughters had been burnt to death inside (the house). In cross, the witness adduced the following evidence: The said Kala Mian is my cousin. He is of my same age. I cannot say if Kala Mian was an accused in the case arising out of the murder of accused Sonahar's father. Mr. mother used to live in the adjacent west of Kala Mian's house. That night I had gone to see my mother. In course of that visit I went to Kala Mian's house. On receipt of the news of my mother's illness, I had come home from Sonahar (Meghalaya) five days before the incident. My mother had been suffering from old age related fever and body-ace. We are two brothers. The other brother is elder than him. Rais Ali had given me the letter which contained information on my mother's illness. Rais works there in a coal mine. I am an illiterate man. Safirudin read the letter over to me. The letter bore mother's name but not the name of its writer. I had my mother treated by Doctor Iman Ali. Mother is still alive. On the right of occurrence, I had procured medicine from Dr. Sindas (sic) of the village for mother. I am an illiterate man. Safirudin read the letter over to me. The letter bore mother's name but not the name of its writer. I had my mother treated by Doctor Iman Ali. Mother is still alive. On the right of occurrence, I had procured medicine from Dr. Sindas (sic) of the village for mother. I had gone to Kala Mian's house on my own. His mother, daughter and brother were present in his house. The P.O. was about 70/80 nals away form Arjan Ali's hillock. The inmates of Arjan Ali's house were at home but they did not come out. Accused Sonahar had been wearing black dress. From the hillock I returned home. I told Kuty Mian, about my recognizing the accused. The next day Kala Mian, too went to the P.O. I found Najafat Ali crying. When asked Najafat Ali said that accused Sonahar, along with his accomplices, had burnt the house. It is not true that I did not tell the police about Najafat Ali's telling me that accused Sonahar, along with his accomplices had set fire to Kuty Mian's house. I could not recognize the remaining 15/16 persons. I did not see anybody other than accused Sonahar and members of his group at the P.O. It was not true that I had not seen any occurrence. It is not true that Najafat Ali had not told him about the incident. I heard about the murder of one of the cousins of accused Sonahar Ali. Kala Mian was an accused in the related murder case. It is not true that being a brother of Kala Mian, I have adduced false evident out of grudge. 23(a). The evidence of this witness Abdul Karim, (PW17) needs outright rejection. He, in our opinion, did not see the occurrence himself and cannot be accepted as eye-witness. 23(b). The witness went to the extent of deposing that having heard the commotion from the house of Kuty Mian @ Surman Ali, they came out and saw from the house a fire blazing in that direction. 23(c). Then this witness reiterated that he alone went towards Surman Ali's house and from the above hillock of Arjan Ali he saw the house of Surman Ali on fire. 23(d). He further deposed that in the glow of the fire, he saw the Appellant and 15/16 persons in Surman's house and they were standing near the fire. 23(c). Then this witness reiterated that he alone went towards Surman Ali's house and from the above hillock of Arjan Ali he saw the house of Surman Ali on fire. 23(d). He further deposed that in the glow of the fire, he saw the Appellant and 15/16 persons in Surman's house and they were standing near the fire. When he shouted one of the Appellant's accomplices ordered to fire at him. They fired guns at him but bullet missed the mark. When they started fire he went away the place out of fear. Giving a new twist to the events, this witness, in his evidence, brought a set of 15/16 persons including the Appellant as participants in the incident but there was no word at all pertaining their next act except that he saw all those persons including the Appellant standing near the fire. 23(e). His statement was that the next morning again he went to Kuty Mian's house and found that the dwelling house and cowshed were completely ravaged by fire. Kuty Mian and members of his family were burnt to death inside the house. 23(f). He saw the charred body of the dead body and he also saw the dead body of Kuty Mian's brother Joban Ali lying in the barandha of Kuty Mian. He was specific in deposing that he noticed hole in Joban Ali's chest. 23(g). At the same time he also evidenced that Kuty Mian's step father Nazafat Ali (complainant and since deceased) told him that the accused Sunhar (Appellant) and his group had closed the door and window to the Kuty Mian's house from outside and had set the house by fire from all sides. He also came to know from Nazafat Ali that because of fire, Kuty Miya, his mother, wife and his four daughters were burnt to death inside. 23(h). Such evidence basically indicated that PW 17 did not see the incident personally as he came to know all about from Najafat Ali. 23(i). In cross, this witness said that P.O. was about 70/80 nals away from Arjan Ali's hillock but the inmates of Arjan Ali's house, although they were at home, did not come out. 23(j). He pinpointedly said that he did not see anybody other than the accused Sonahar and members of his group at the place of occurrence. 23(i). In cross, this witness said that P.O. was about 70/80 nals away from Arjan Ali's hillock but the inmates of Arjan Ali's house, although they were at home, did not come out. 23(j). He pinpointedly said that he did not see anybody other than the accused Sonahar and members of his group at the place of occurrence. This witness did not mention the name of any other accused except the Appellant. This piece of evidence for the first time intended to exhibit the Appellant as the leader of the group in the commission of the charged offences. 23(k). He also stated that Kala Mian was an accused in the murder case of one of the cousin of the Appellant Sonahar Ali. 23(1). This witness was the only witness who named only the Appellant and gave the numbers of persons present in such act as 15/16 which also tallied with the FIR lodged by Nazafat Ali, the complainant, who told this witness about the incident. In the FIR which was filed by Nazafat Ali (since deceased) it was mentioned that it was about 10/15 miscreants arms with gun, pistal, bhojali etc. trespassed his house and burnt to death all those 9 persons named in the FIR itself. Save and except this witness as well as that FIR nobody ever mentioned that it was a gang of 10/15/16 persons. 23(m). From the minute survey of the testimony of PW 17, it can be inferred that he was informed by Najafat Ali, the complainant but was not a eye-witness and as such it is easily said that it was wholly a hearsay evidence. 24. It is amazing to notice that all the 4 (four) so called eye-witnesses were in agreement to depose that each of them came to the place of occurrence alone only and described the incident independently without being noticed or seen by others among them. It is, indeed, a peculiar fast situation as well as absurd. 25. Scrutiny of evidence PW 11 would be necessary as he was examined by the prosecution being an injured in the incident. He stated in his examination-in-chief that he knew the Appellant and other two accused Anowar and Ustar but he did not know the rest of other accused persons. On the day of occurrence hearing the commotion, he heard that Kuti Miya @ Surman Ali's house had caught fire. He stated in his examination-in-chief that he knew the Appellant and other two accused Anowar and Ustar but he did not know the rest of other accused persons. On the day of occurrence hearing the commotion, he heard that Kuti Miya @ Surman Ali's house had caught fire. As his elder brother Akkadas Ali, (PW 3) and younger brother Atar Ali ran towards Kuti Miya's house, he too ran after them. He heard the sound of gun shot from the direction of Kuti Miya's house. After he had gone a distance of 15/16 nals, he found his younger brother Atar Ali lying on the road. When he tried to run Kuty Miya's house from there, the accused persons namely Sonur Ali (Appellant), Ustar Ali and Anowar Ali and few others had surrounded and hacked him with a bhojali and as a result he sustained bleeding injury in his right hand, right shoulder and hand. He ran away from their but fell unconscious near the house. In cross, however, he emphatically said that he told police that a dacoit had hacked him with a bhojali. He saw 10/15 persons but he could not recognize the dacoit who had attacked him with bhojali. According to him, the dacoits were dressed in black trousers and black shirts. It has already been noticed from the deposition of PW 12 that the accused Moslem was armed with a 'bhojali' while accused Rois had a spear in his hand. Therefore, it can be easily inferred that the dacoit who hacked PW 11 with a bhojali and whom PW 11 could not recognize, might be the accused Muslimuddin who was armed with a bhojali. On one hand, this witness said that he could not recognise the dacoit who hacked him but on the other hand, he stated that he could recognize accused Sonahar, Ustar and Anowar by their voices. However, he did not tell any one about his recognizing three persons by their voices. Bearing in mind his statement in-chief as regards hacking him with a 'bhojali' by three accused persons above named alongwith few others as well as hacking him by a 'bhojali' by a dacoit, as told by him to the police, the medical evidence of PW 13 Dr. Dilip Ray who examined the injured, PW 11 may be discreetly noticed. Bearing in mind his statement in-chief as regards hacking him with a 'bhojali' by three accused persons above named alongwith few others as well as hacking him by a 'bhojali' by a dacoit, as told by him to the police, the medical evidence of PW 13 Dr. Dilip Ray who examined the injured, PW 11 may be discreetly noticed. According to the Doctor, having examined PW 11 he found the following injuries: (1) Incised wound over right deltoid muscle of shoulder joint measuring 5 cm × 2 cm × muscle deep. (2) Incised would over right scapula measuring 6 cm × 2 cm × muscle deep. (3) Incised wound over right scapula between above injuries measuring 3 cm × 2 cm × skin deep. (4) Penetrating wound over right fore-arm measuring 1 cm × 1 cm × muscle deep. (5) Diffused swelling of back muscle and (6) Diffused swelling of right thigh. The Doctor opined as under: In my opinion all the injuries were simple in nature and caused by sharp cutting, blunt and pointed object. Injuries No. 1, 2 and 3 were caused by sharp object. Injury No. 4 was caused by pointed object and injuries No. 5 and 6 were caused by blunt object. 26. Having considered those injuries as found by the Doctor, PW 13 and taking into account the deposition of PW 11 as regards hacking him by a 'bhojali' by unidentified dacoits as well as also considering the testimony of PW 12 as regards the accused Muslimuddin being armed with a 'bhojali', we do not find any sufficient material to implicate the Appellant in causing any such injuries upon PW 11. Even there was no whisper in the evidence of any other witness including those four eye-witnesses that bhojali was in possession of any other dacoits save and except Muslimuddin who was only armed with a 'bhojali' as deposed by PW 12. 27. Discrepancies as regards gunshot inflicted upon Jaban Ali, one of the deceased in the incident, have also been noticed from the testimony of PW 1 and PW 15. 28. Close scrutiny of the testimony of PW 1 and PW 15 would reveal that PW 1 in her evidence stated that some one from the accused persons shot Joban Ali and killed him by hacking a dao. 28. Close scrutiny of the testimony of PW 1 and PW 15 would reveal that PW 1 in her evidence stated that some one from the accused persons shot Joban Ali and killed him by hacking a dao. But PW 15, in her evidence, who was the daughter of late Joban Ali, evidenced that it was accused Sumur Ali who shot at him. However, the medical evidence proved to the contrary. The doctor's medical evidence did not suggest any such gunshot injury. According to Dr. Homeswar Sarma, PW 20 who conducted the autopsy on the dead body of late Jaban Ali, found as follows: On 18.12.1999 I performed the P.M. Examination on the dead body of Joban Ali a male Muslim aged about 45 years son of Lt. Illas Ali of Pashim Betubari under Ratabari P.S. being identified and produced by police constable No. 211 Akhil Das and one Nazrul Haque and I found as follows: External appearance.-The deceased was found in a burnt condition of sixth degree severity with blackening and charring of the burnt areas. The right fore arm and hand and both legs were missing following burnt injuries. Missing of the scalp following burnt, the teeth jaw and skull bones were burnt. The tissues were pinkish in colour along with the blood. The penis were partly burnt. Burnt remnants of straw present over the body surfaces. The abdominal and thoracic organs and visceras were hardened and disciceted. The doctor in his opinion held that death was due to ante mortem burnt injuries of 6th degree seventy involving 100% body surface. 29. This opinion negates the testimony of PW 1 and PW 15 as regards killing of Jaban Ali by gunshot as doctor did not record any gun injury as being found on the dead body as testified by PW 15. This medical evidence also dislodged the evidence of PW 17 Abdul Karim, who deposed that he noticed hole in the Jaban Ali's chest when he saw Joban Ali lying in the varnadha of Kuty Miya's house. It is also pertinent to mention that the Doctor PW 20, who conducted the autopsy over the dead body of all the 9 (nine) deceased including Jaban Ali, did not find any bullet injury anywhere in the dead bodies of those killed. It is also pertinent to mention that the Doctor PW 20, who conducted the autopsy over the dead body of all the 9 (nine) deceased including Jaban Ali, did not find any bullet injury anywhere in the dead bodies of those killed. According to him, the death of all those persons were due to ante mortem burnt injuries of 6th degree severity involving 100% body surface. Therefore the story of firing of several gun shots by any of the accused including the Appellant as deposed by all those witnesses mentioned above, appears to be incorrect and the same cannot be accepted. It is very much on record that all those witnesses, admittedly, had not seen anybody firing on the spot from any gun or pistol except PW 1 and PW 15 whose evidence itself is under cloud. 30. The Investigating Officer (IO) PW 21, Sri Kanti Bhushan Deb stated that while investigating the case he recorded statement of witnesses. He mentioned that Raimum Nessa, PW 2 told before him that dacoits were abusing and firing and she could recognize the voice of Sunur Ali the Appellant and another witness PW 6 Musst. Mayajan Bibi told before him that on the day of incident she heard sound of 2/3 round of firing in the house of Kuty Mian and on that night PW 2 along with her children took shelter in her house. Dacoit shot her husband (Jaban Ali the deceased) and she kept hiding herself in her house. However both PW 2 and PW 6 they were declared hostile by the prosecution. The Investigation Officer in cross emphatically deposed that PW 1 did not tell him that the Appellant called Surman Ali to come out of house and he Appellant put the fire in the house. According to us, testimony of this witnesses does not require further scrutiny. 31. Bearing in mind the statement made by PW 12, Abdul Khalique to the effect that he told VDP Secretary Sunahar Ali (PW 16) and other about recognizing the accused persons, it is necessary to put the evidence of PW 16 on discreet scanning. According to us, testimony of this witnesses does not require further scrutiny. 31. Bearing in mind the statement made by PW 12, Abdul Khalique to the effect that he told VDP Secretary Sunahar Ali (PW 16) and other about recognizing the accused persons, it is necessary to put the evidence of PW 16 on discreet scanning. This witness PW 16 in his evidence, mentioned that it was not PW 12 but one Abdul Manaf (not examined by the prosecution) who around 2.30 on the very night came to him and woke him up telling him that the accused Sunur, the Appellant and his brothers and others had, in a body, burnt Kuti Miya's house and as a result of that the inmates of the house had all been charred to death. Hence it is crystal clear that the testimony of PW 12 was at all reliable and the same requires to be discarded. 32. As already discussed above, the evidence of the witnesses has been examined in great detail and subjected their testimony to critical scrutiny in view of the fact that the Appellant has been charged with a ghastly offence of killing 9 persons and has been sentenced to death. Having considered the entire facts and circumstances in its totality, we entertain a serious doubt as regards the genuineness, correctness and veracity of all the witness so examined by the prosecution particularly those so called eye-witnesses PWs 1, 12, 15 and 17. Taking the evidence of PWs 1, 12, 15 and 17 as a whole into account, according to us, save and except PW 1, others are not eye-witnesses to the incident of assault and setting fire on the house. We are of the considered opinion that there was no clear and direct evidence against the Appellant as regards his involvement in the offence under Section 302 read with Section 149, IPC. In our view, PW 1 can be said to be a key witness and if we accept her evidence, there were only three persons namely, the Appellant, Ustar Ali and Anowar Ali whom she found to be a present in the place of occurrence and except those three she did not see any other person in the place of occurrence. She also did not tell anything about the weapon held by any of these persons. She also did not tell anything about the weapon held by any of these persons. She categorically stated, in her cross, that accused Ustar Ali and Anowar Ali had started the fire. Accused Ustar Ali had flambeau in his hand and it was Anowar Ali who pulled out thatch from the house and by setting fire to the thatch with the flambeau, he set the house ablaze. It is on the evidence that some years ago of the present incident, the Appellant's father was killed and the deceased Surman Ali and Abdul Khaleque PW 12, including some Abdul Matin, Farzuddin were all accused in that murder case and they were later on acquitted. In his examination on the sentence under Section 235(2), Code of Criminal Procedure, the Appellant also in answering against question No. 8 i.e. he was found guilty in an offence in a Sessions Case No. 12/2001 under Section 302/34, IPC and given life imprisonment with a fine of Rs.5000/-, stated that the appeal was pending before the High Court. Against question No. 10 that is as to why he left the house which was situated near that of Surman Ali one of the deceased killed in the incident, he answered that Kala Muliala, Late Surman Ali and witness Abdul Khaleque murdered his father and cousin Syeb Ali and because of that he left his house out of fear apprehending that he too might be killed and against question No. 10, he expressed remorse saying that except him there was none in the family to look after his family and his daughter had attained the age of marriage. 33. We have also thoroughly gone thorough the authorities cited by learned PP as regards the application of Section 149, IPC. Law stands settled as regards applicability of Section 149, IPC to the effect that it is not necessary that there should be a pre-concert by way of a meeting of the persons of the unlawful assembly consisting of five or more persons as to the common object and if a common object is adopted by all the persons and shared by them, it would serve the purpose. 34. The expression "unlawful assembly" has been defined under Section 141, IPC as follows: 141. 34. The expression "unlawful assembly" has been defined under Section 141, IPC as follows: 141. Unlawful assembly.-An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is- First.-To overawe, by criminal force, or show of criminal force, the Central or any State Government or Parliament or the legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or Second.-To resist the execution of any law, or of any legal process; or Third.-To commit any mischief or criminal trespass, or other offence; or Fourth.-Be means of criminal force, or show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right at way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth.-Be means of criminal force, or show of criminal force to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation.-An assembly which was not unlawful when it assembled may subsequently become an unlawful assembly. 35. Section 142, IPC reads as under: 142. Being member of unlawful assembly.-Whoever, being aware of facts which render any assembly an unlawful assembly intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. 36. Section 149, IPC provides: Every member of unlawful assembly guilty of offence committed in prosecution of common object. If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. 37. 37. The essential ingredients of Section 149, IPC are: (a) There is an unlawful assembly, (b) A member of the assembly commits an offence, (c) The offence committed-(i) is in prosecution of the common object of the assembly, or (ii) is such as members of the assembly know to be likely to be committed in prosecution of that object, (d) in such a case, every person who at the time of commission of the offence, is a member of the same assembly, is punishable. 38. The Supreme Court in a case of Masalti v. State of U.P. AIR 1965 SC 202 , had the occasion to explain the scope and purport of Section 149, IPC. In Masalti's case (supra) an argument on the basis of an authority reported in AIR 1956 SC 181 Batadin v. State of U.P. ruling that it was well-settled that mere presence in an assembly did not make a person, who was present, a member of an unlawful assembly unless it was shown that he had done something or committed to do something which would make him a member of an unlawful assembly, that an overt act was mandatory, was repelled by the Apex Court holding that such observation was made in the peculiar fact of the case. In paragraph 17 of Masalti's case (supra) it was held that: ...What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with other members of the assembly the common object as defined by Section 141, IPC. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of Section 141, is unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matte of idle curiosity without intending to entertain the common object of the assembly. ...In fact, Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly know to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that empathically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawfully assembly.... 39. In paragraphs 10, 11 and 12 of Bikau Pandey's case, (supra), as cited by the learned Public Prosecutor, the Apex Court observed as follows: 10. A plea which was emphasized by the Respondents relates to the question washer Section 149, IPC has any application for fastening the constructive liability which is the sina qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of 3 those set out in Section 141. Where common object of an unlawful assembly is proved the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more person and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the act which fall within the purview of Section 141. The word "object" means the purpose or design and, in order to make it "common", it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur with it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression "in prosecution of common object" as appearing in Section 149 has to be strictly construed as equivalent to "in order to attain the common object". It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to a certain point beyond which they may differ in their objects and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequences of this the effect of Section 149, IPC may be different on different members of the same assembly. 11. "Common object" is different from a "common intention" as it does not require a prior concert and a common meeting of minds before the attack. 11. "Common object" is different from a "common intention" as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The "common object" of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must, be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one, comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words, it can develop during the course of incident at the spot eo instanti. 12. Section 149, IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one, which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members; an they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a metal attitude, no direct evidence can be available and, like intention, has generally to be from the act which the person commits and the result therefrom. Though no hard and fast rule can be Laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of incident. The word "knew" used in the second branch of the section implies something more than a possibility and it cannot be made to bear the sense of "might have been know". Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be case which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. That, however, does not make the converse proposition true; there may be case which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as he members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the first, offences committed in prosecution of the common object, (which) would be, generally committed in the prosecution of the common object. 40. Having regard to the proposition of law Laid down in the above quoted authorities and after in-depth consideration of the evidence of the witnesses, we find no essential ingredients as defined and provided in Section 141, IPC and Section 149, IPC respectively are being present in the case at hand to attract the same to convict the Appellant under Section 149, IPC. The evidence as a whole, as discussed above, is clear indicative of the fact that there was no unlawful assembly and the alleged act was not committed in prosecution of common object. It is also found on the basis of testimony of those witnesses that the Appellant has been solely and wholly indicated on the instant offence out of sheer animosity and previous grudge. It transpires that even according to the prosecution case, there was considerable doubt as to the role played by the Appellant in the incident in question and he, therefore, cannot be roped in with the aid of Section 149, IPC. 41. In the instant case not a single witness, although the Appellant was named by them, had ever placed sufficient materials whatsoever to indict Appellant's involvement in the alleged crime. As already meticulously examined herein above, those witnesses mentioned that the Appellant was present in the courtyard of Kuty Mian's house but nobody indicated his participation in the offences charged rather had pin pointedly mentioned the names of Ustar Ali and Anowar Ali as regards the part played by them in setting the house in question on fire. No satisfaction direct evidence was placed on record to support the presence and contribution of the Appellant. No satisfaction direct evidence was placed on record to support the presence and contribution of the Appellant. As regards mentioning the numbers of accused persons present at the time of commission of the offence, the witnesses fumbled and were confused. PW 1's testimony was specific confining only to 3 (three) persons. PW 12 named all those five accused above stated when PW 15 told that he saw the Appellant, Ustar Ali and Anowar Ali with two others. According to PW 17, it was the Appellant along with 15/16 persons present near the place of occurrence. Surprisingly, although all of those witnesses told the name of the Appellant in common, they maintained total silence in describing the role played by the Appellant. The witnesses so examined by the prosecution, hence, failed to impress upon the Court to hold them as reliable, truthful and credible witnesses. Their evidence was not cogent, trustworthy and they appeared to be interested witnesses. In the premises aforesaid, we are of the firm opinion that the Appellant's conviction cannot be sustained. 42. In so far the question of delay of lodging the FIR, as suggested by the learned Amicus Curiae, is concerned, it is found on record that the incident took place at about 11 p.m. on the night of 15.12.1999. FIR was lodged by one Nazafat Ali at 3.30 p.m. on 16.12.1999 with the Ratabrari Police Station which was at a distance of 6 kms. west to the place of occurrence. In the process of the filing of FIR, there was a delay of more than one day. This delay was not properly explained. It is correct that delay in lodging an FIR would not be fatal in every case if the ocular version of the eye-witness is reliable and trustworthy and factum of delay requires the Court to scrutiny the evidence adduced with greater degree of care and caution. But in the instant case, we have already noticed above that the delay was of 28-1/2 hours and that too, without any plausible explanation for such delay. But in the instant case, we have already noticed above that the delay was of 28-1/2 hours and that too, without any plausible explanation for such delay. Hence considering the peculiar circumstances of the case and in the light of totality of the evidence, we are inclined to accept the submissions made by the learned Amicus Curiae that the FIR was lodged causing an unexplained delay with a purpose to make necessary improvement of the case only to implicate the Appellant along with other two accused Ustar Ali and Anowar Ali so as to settle old scores against them. 43. In the result, we do find that the Appellant is entitled to get benefit of doubt and accordingly he is acquitted from the charges under Section 302, IPC read with Section 149, IPC. In view of what has been stated, discussed and observed, we are inclined to interfere with the impugned conviction and sentence so rendered by the learned Judge in the impugned judgment and consequently the same stands quashed and set aside so far the Appellant is concerned. 44. The Appellant be set at liberty forthwith if he is not connected with any other case. 45. Before parting with the case, we; would like to put on record our appreciation to Mr. A.K. Goswami the learned senior counsel and Amicus Curiae and Ms. B. Sarma, the learned Counsel assisting Mr. Goswami for rendering their valuable help and assistance towards arriving at the decision above mentioned. At this stage Mr. Goswami, learned Amicus Curiae is, in his usual fairness, disinclined to accept his professional fees. Having appreciated his such gesture, we do order that Ms. B. Sarma, the learned Counsel assisting the learned Amicus Curiae be entitled to her professional fees which is fixed at Rs.5,000.00 (Rupees five thousand) only. 46. Send down the LCR forthwith. 47. The Criminal Appeal (J) No. 82(J)/08 stands allowed and the Criminal Death Reference No. 1/08 is answered accordingly. Appeal allowed.