P.K. Musahary, J.- Whodunnit. 12 offenders came; 2 of them with an axe and dao, some with lathis and some bare handed; caused death to 3 inmates of the family. All the perpetrators, being co-villagers, were identified and named in the FIR. One of them inadvertently mentioned as ac­cused, was discharged. He was a relation of the informant and the victim families. But all the other 11 accused have been convicted and sentenced. This appeal has been preferred against the judgment and order dated 14.09.2006 ren­dered by the learned Additional Sessions Judge, West Tripura, Sonamura in Case No. ST 8(W.T.S,)/05 convicting all the accused appellants under Sections 148/448/302 read with Section 149 IPC, sentencing each of them to suffer R.I. for 2 years for the offence punishable under Section 148 IPC, to suffer R.I. for 1 year for the offence punishable un­der Section 448 IPC and to suffer R.I. for life and to pay a fine of Rs.3,000/- each, in default, to suffer imprisonment for a further period of 6 months for the offence punish­able under Section 302 IPC read with Sec­tion 149 IPC with a direction that the sub­stantive sentences of imprisonment shall run concurrently. 2. We have heard Mr. H. Debnath, learned counsel appearing for the convict appellants and Mr. R. Debnath, learned Special Public Prosecutor for the State of Tripura. 3. The story as told by the prosecution, in brief, is that on 14.04.2003, at about 21:45 hrs, one Sub-inspector of Police of Jatrapur Police Station, received a telephonic infor­mation to the effect that there was a chaos at Tulatali Bari. He made an entry of the said information in the General Diary vide No. 564 and he, along with another Sub-Inspector and other staff rushed to the spot. On their ar­rival, one Lilmani Noatia orally lodged a com­plaint about the incident which was reduced to writing by S.I. Sri S. Dasgupta. The com­plaint was to the effect that at about 20:15 hrs, on that day, the accused appellants along with another accused Sri Deb Choudhury, armed with deadly weapons like dagger, lathi and chheni, attacked the house of the infor­mant at Tulatali Bari. After the attack, they caused fatal injuries to Nityamohan Noatia, Sonadhan Noatia and Nityalila Naotia; father, younger brother and uncle of the informant respectively. As a result of such attack, all of them died on the spot. After the attack, they caused fatal injuries to Nityamohan Noatia, Sonadhan Noatia and Nityalila Naotia; father, younger brother and uncle of the informant respectively. As a result of such attack, all of them died on the spot. The complaint having revealed a cognizable offence, a crime being Jatrapur Police Station Case No. 09/2003 was registered. The investigation commenced and on completion of the investigation, a prima-facie case having been found against all the accused appellants, except Deb Choudhury, a charge-sheet was submitted against them under Sections 148/448/302 IPC read with Section 149 IPC. The learned Sub-Divisional Judicial Magistrate, Sonamura, West Tripura, after taking cognizance of the aforesaid offence against the accused appel­lants, committed the case to the Court of learned Additional Sessions Judge, West Tripura, Sonamura, for disposal, who, in his turn, framed charges under Sections 148/448/302 IPC read with Section 149 IPC against all the accused appellants who pleaded not guilty and claimed to stand trial. 4. In order to prove the charges against the accused appellants, the prosecution ex­amined as many as 14 witnesses including the informant and 2(two) Investigating Offic­ers who submitted the charge sheets and in­vestigated the matter till collection of medical report. No witness was examined by the ap­pellants for their defence. They took the plea of total denial to the prosecution case. After conclusion of the trial, the learned trial Court, on consideration of the evidence and materi­als available on record and also after hearing the learned counsel appearing for the parties, convicted and sentenced the accused appel­lants, as stated earlier. 5. Mr. H. Debnath, learned counsel ap­pearing for the convict appellants, made the following submissions: (1) The deceased Nityamohan Noatia and Nityalila Noatia were exorcists (Oojha) who used to treat the serious ail­ments of the village people and in doing so, they caused death of many persons and thereby, they earned wrath of the relatives of those persons whose dear-and-near ones were killed and the said exorcists were killed by the aggrieved persons in which the accused appellants had no role to play. (2) Amongst 14 witnesses examined by prosecution, PW 5, PW 6, PW 9, PW 10, PW 12 and PW 13. are related and interested witneses. PW-5 (informant), PW 12 and PW 13 were examined by the investigating officer under Section 161 of Cr.P.C. after one month and seven days without any explanation for such delay. (2) Amongst 14 witnesses examined by prosecution, PW 5, PW 6, PW 9, PW 10, PW 12 and PW 13. are related and interested witneses. PW-5 (informant), PW 12 and PW 13 were examined by the investigating officer under Section 161 of Cr.P.C. after one month and seven days without any explanation for such delay. In fact there is not a single independent eye­witness and as such, the conviction and sentence, as awarded, are not sustainable under the law. Moreover, PW 1, PW 2 and PW 7, who are co-villagers/neighbours of the informant, did not sup­port the prosecution case rather they cor­roborated the version of the defence. The abovementioned PW 1, PW 2 and PW 7, were declared as hostile witnesses and no reasonable ground is available in the evidence on record to disbelieve their evi­dence. (3) There are number of omissions and/or vital contradictions in the earlier state­ments made under Section 161 Cr.P.C. and depositions of the aforesaid related and interested witnesses rendering their evidence unreliable and unbelievable. As per decision in Harchand Singh & Anr. Vs. State of Haryana reported in AIR 1974 SC 344 , if two views can be taken, it is possible to take a view in favour of the accused appellants acquitting them of the charges. 6. According to learned counsel for the appellants, the occurrence took place in the night time but the so-called eye-witnesses namely PW 5, PW 6, PW 9, PW 10 and P W13, nowhere stated how they could rec­ognize the miscreants inasmuch as they did not mention the existence of electric light in their statements recorded under Section 161 Code of Criminal Procedure, 1973, by the Investigating Officer and as such, although they stated in their deposition before the Court that they could recognize the accused appellants in the electric light, amounts to contradiction of their earlier statements and due to such con­tradictions, their evidence cannot be relied upon for conviction of the accused appellants. PW-9, who claimed to be an eye-witness, clearly stated in his examination-in-chief that he does not know who killed the deceased persons. PW-9, who claimed to be an eye-witness, clearly stated in his examination-in-chief that he does not know who killed the deceased persons. Again from Ext.-C during cross-ex­amination, he stated that at the time of occur­rence, he was at Nidaya Market at a distance of 1 mile from the place of occurrence and on receiving the information about the attack on their house, he went to the place of occur­rence and found the dead bodies of his fa­ther, uncle and cousin. From his own state­ment, it has been proved that he was not an eye-witness of the occurrence but the learned trial Court failed to appreciate the same. Simi­larly, PW 5, who claims to be an eye-witness to the occurrence, contradicted himself in his the learned counsel appearing for the parties, convicted and sentenced the accused appel­lants, as stated earlier. 5. Mr. H. Debnath, learned counsel ap­pearing for the convict appellants, made the following submissions: (1) The deceased Nityamohan Noatia and Nityalila Noatia were exorcists (Oojha) who used to treat the serious ail­ments of the village people and in doing so, they caused death of many persons and thereby, they earned wrath of the relatives of those persons whose dear-and-near ones were killed and the said exorcists were killed by the aggrieved persons in which the accused appellants had no role to play. (2) Amongst 14 witnesses examined by prosecution, PW 5, PW 6, PW 9, PW 10, PW 12 and PW 13-are related and interested witneses. PW-5 (informant), PW 12 and PW 13 were examined by the investigating officer under Section 161 of Cr.P.C. after one month and seven days without any explanation for such delay. In fact there is not a single independent eye­witness and as such, the conviction and sentence, as awarded, are not sustainable under the law. Moreover, PW 1, PW 2 and PW 7, who are co-villagers/neighbours of the informant, did not sup­port the prosecution case rather they cor­roborated the version of the defence. The abovementioned PW 1, PW 2 and PW 7, were declared as hostile witnesses and no reasonable ground is available in the evidence on record to disbelieve their evi­dence. (3) There are number of omissions and/or vital contradictions in the earlier state­ments made under Section 161 Cr.P.C. and depositions of the aforesaid related and interested witnesses rendering their evidence unreliable and unbelievable. As per decision in Harchand Singh & Anr. Vs. (3) There are number of omissions and/or vital contradictions in the earlier state­ments made under Section 161 Cr.P.C. and depositions of the aforesaid related and interested witnesses rendering their evidence unreliable and unbelievable. As per decision in Harchand Singh & Anr. Vs. State of Haryana reported in AIR 1974 SC 344 , if two views can be taken, it is possible to take a view in favour of the accused appellants acquitting-them of the charges. 6. According to learned counsel for the appellants, the occurrence took place in the night time but the so-called eye-witnesses namely PW 5, PW 6, PW 9, PW 10 and PW 13, nowhere stated how they could rec­ognize the miscreants inasmuch as they did not mention the existence of electric light in their statements recorded under Section 161 Code of Criminal Procedure, 1973, by the Investigating Officer and as such, although they stated in their deposition before the Court that they could recognize the accused appellants in the electric light, amounts to contradiction of their earlier statements and due to such con­tradictions, their evidence cannot be relied upon for conviction of the accused appellants. PW-9, who claimed to be an eye-witness, clearly stated in his examination-in-chief that he does not know who killed the deceased persons. Again from Ext.-C during cross-ex­amination, he stated that at the time of occur­rence, he was at Nidaya Market at a distance of 1 mile from the place of occurrence and on receiving the information about the attack on their house, he went to the place of occur­rence and found the dead bodies of his fa­ther, uncle and cousin. From his own state­ment, it has been proved that he was not an eye-witness of the occurrence but the learned trial Court failed to apreciate the same. Simi­larly, PW 5, who claims to be an eye-witness to the occurrence, contradicted himself in his evidence in regard to use of weapon by the accused appellants inasmuch as he stated that accused Narayan Noatia assaulted him with a dao while some other witnesses stated that accused Narayan Noatia assaulted PW 5 with an axe causing bleeding injury on his head. There is no medical evidence that PW 5 received injury caused by an axe. There is no medical evidence that PW 5 received injury caused by an axe. More­over, the axe stated to have been used by accused Narayan Noatia, according to the evidence of PW 14 (I.O.), was produced by the informant PW 5 on 28.04.2003 i.e. after a gap of 14 days of the incident, which was seized by the Investigating Officer and marked as 'M.O.-2'. The said axe was not sent for chemical examination. It is not even stated by the Investigating Officer as to whether the said axe was found stained with blood or not. The other weapons alleged to have been used by the accused appellants, although seized by the Investigating Officer, were not sent for chemical examination to determine as if the said weapons were stained with human blood, but the learned trial Court without applying its mind and giving any importance to such lapse of the prosecution, convicted the ac­cused appellants. Moreover, PW 12 and PW 13, who also claimed themselves to be eye­witnesses of the occurrence, were examined by the Investigating Officer only on 22.05.2003 i.e. after a lapse of 1 month and 7 days of the incident and no explanation has been offered by the I.O./prosecution as to why there was so much of delay in examining them and recording their statements under Section 161 Code of Criminal Procedure, 1973. The prosecution did not examine the Medical Officer who conducted the post­mortem examination and thereby, the defence have been denied the opportunity of cross-examination of this vital witness to ascertain as to whether the injuries found on the per­sons of the deceased, could be caused by the said seized weapons or as to whether the said injuries were sufficient to cause death in the ordinary course. 7. Mr. R.C. Debnath, learned special P.P., State of Tripura, submits that delay in exami­nation of some witnesses by the investigating officer and some minor contradictions in the earlier statements and the evidence of the prosecution witnesses cannot be ground for discarding the entire prosecution case. Non-examination of the medical officer who con­ducted the post-mortem examination would not, in any way, affect the prosecution case inasmuch as the post-mortem reports have been exhibited and the same can be used as valid pieces of evidence. As regards the mode of contradicting previous statements, the learned special P.P. relies on Tahsildar Singh & Anr. Vs. Non-examination of the medical officer who con­ducted the post-mortem examination would not, in any way, affect the prosecution case inasmuch as the post-mortem reports have been exhibited and the same can be used as valid pieces of evidence. As regards the mode of contradicting previous statements, the learned special P.P. relies on Tahsildar Singh & Anr. Vs. State of U.P., reported in AIR 1959 SC1012 and submits that there is no material contradiction. According to him, evi­dence of PW 12 is enough to corroborate the evidence of other prosecution witnesses. Further, the ruling in Harchand Singh (supra) is not applicable to the present case. Relying on State of U. P. Vs. Satish, reported in 2005 Cr. L.J. (SC) 1428, Mr. Debnath, also sub­mits that delay in examination of witnesses by the investigating officer is not fatal and infact, reason of delay is not required to be given by the prosecution. 8. The order of conviction and sentence is based chiefly on the oral evidence of PW 5, PW 6, PW 9, PW 10, PW 12 and PW 13, who claimed themselves as eye-witnesses. We would, therefore, like to appreciate their evidence. 9. PW 6, Sri Rabidhan Noatia, brother of the informant, stated to have seen the occurrence at the beginning, deposed that the ac­cused appellants armed with dao, lathi, axe, etc. came to their house and at first, the ac­cused Narayan Noatia assaulted his brother Lilmani Noatia with an axe and then he some­how managed to pull his brother inside the room. The accused appellants then entered into the North vity hut. The accused Narayan Noatia, Sakhi Kumar Debbarma, Sakhiram Debbarma and Krishnabashi Noatia, as­saulted his uncle Nityalila Noatia who was in their house at that time. He was killed by the said accused appellants. By that time, his brother Sonadhan Noatia came home and he was also assaulted by accused Narayan Noatia, Sakhiram Debbarma and Manoran-jan Noatia. This PW 6, being afraid, ran away from the scene to call the police. He met the police at Nidaya Market and informed them about the incident. He has stated that he re­turned home at about 9 pm with the police and he was told by his mother i.e. after his father, uncle and brother-in-law were killed. When he returned home at about 9 pm, he could recognize the accused appellants in the electric light. He has stated that he re­turned home at about 9 pm with the police and he was told by his mother i.e. after his father, uncle and brother-in-law were killed. When he returned home at about 9 pm, he could recognize the accused appellants in the electric light. According to him, there was moon light also at the time of incident. 10. P W 9, Sri Chandradhan Noatia, is the son of deceased Nityalila Noatia. He deposed that on the day of occurrence at about 08.30 pm, when he reached near the house of his uncle Nityamohan Noatia, he found the ac­cused appellants assaulting his father Nityalila Noatia. When he asked the accused as to why they were assaulting his father, accused Krishnabashi Noatia and Manoranjan Noatia attempted to attack him and he could witness the incident from a little distance. He categori­cally stated that accused Narayan Noatia as­saulted his father with a dao on his shoulder and legs while some of the accused appellants hit his father with lathi on his head. This PW 9, on seeing the blood, became scared and ran to his house and got fainted. Accord­ing to him, his father died as a result of assault by the accused appellants. Subsequently, he heard that his uncle Nityamohan Noatia and Sonadhan Noatia were also killed by the ac­cused appellants. However, he does not know who killed them. He found the accused ap­pellants namely Krishnabashi Noatia, Manoranjan Noatia, Brindakesh Noatia, Santi Kumar Noatia, Raju Mog, Sakhiram Debbarma, Sajal Noatia and many others. In cross-examination, he stated that the Daroga Babu questioned him regarding the incident and he stated to him whatever he knew about the incident. On being questioned, he denied to have made any statement before the in­vestigating officer that on receiving informa­tion, he went to his locality and found the dead bodies lying on the road. He was then con­fronted with his earlier statement, marked as Ext.-C, recorded under Section 161 Code of Criminal Procedure, 1973, wherein it is found that he, in fact, made statement before the investigating officer (Daroga Babu) as contained in Ext.-C. He also stated that he regained consciousness at about 11 am on the following day. However, he denied the sug­gestion that he was not present when his fa­ther was assaulted. 11. PW 10, Smti. However, he denied the sug­gestion that he was not present when his fa­ther was assaulted. 11. PW 10, Smti. Rupa Rani Noatia, w/o deceased Nityamohan Noatia, stated in her deposition that the accused appellants came to her house at about 8/8.30 pm and started making noise. When her son Lilmani Noatia asked them why they were making noise, accused Narayan Noatia hit his son on his forehead with an axe causing bleeding injury. At that time, his other son Rabidhan Noatia pulled Lilmani Noatia inside the house and at the same time, she herself and her husband Nityamohan Noatia were staying in the North Vity Hut. The accused appellants entered their North Vity hut and assulted and pushed her away. They held her husband and started as­saulting him left and right. As a result of as­sault, her husband died. When her brother-in-law Nityalila Noatia came and objected, the accused Manoranjan Noatia and Narayan Noatia assaulted him with an axe and as a result, her brother-in-law also died. They pulled the dead bodies on the road and by that time, her son Sonadhan Noatia (not ex­amined as witness) who was not at home at that moment, came and told the accused ap­pellants that if anything wrong was done, it should be dealt with as per the law of the country. The accused Manoranjan Noatia then assaulted her son with an axe while accused Narayan Noatia stabbed him as a result of which her son SonadhanNoatia also died and by that time, the police who were called by her son Rabidhan Noatia, arrived. The po­lice apprehended accused Padmamani Noatia and Narayan Noatia in her house but the other accused appellants ran away. In the cross-examination, she has stated that she cannot remember what she stated before the police. She, however, told the Daroga Babu that her son Lilmani asked the accused appellants as to why they were making noise only to be assaulted by accused Narayan Noatia with an axe. She told the investigating officer that both accused Manoranjan Noatia and Narayan Noatia assaulted her brother-in-law with an axe. She denied the suggestion that accused Narayan Noatia did not assault Lilmani with an axe. She also denied the sug­gestion that accused Narayan Noatia and Manoranjan Noatia did not assault her brother-in-law with an axe. She told the investigating officer that both accused Manoranjan Noatia and Narayan Noatia assaulted her brother-in-law with an axe. She denied the suggestion that accused Narayan Noatia did not assault Lilmani with an axe. She also denied the sug­gestion that accused Narayan Noatia and Manoranjan Noatia did not assault her brother-in-law with an axe. She further denied the suggestion that accused appellants, above named, did not assault her husband Nityamohan Noatia with a dao, axe, lathi, etc., and did not cause his death and the dead bodies of the deceased persons were not dragged to the road. She categorically de­nied the suggestion of the defence that she stated falsely that the police apprehended Padmamani and NarayanNoatia in her house. The suggestion that accused appellants did not go to her house armed with dao, lathi, axe, etc. was also denied by her. 12. PW 12, Sri Gobinda Noatia, brother of informant (PW 5) who claims to be an eye­witness, stated in his exarnination-in-chief that on the day of occurrence at about 8 pm, the accused appellants armed with lathi, dao, axe, dagger, etc. came to their house, raising noise. The accused Narayan Noatia assaulted his brother Lilmani Noatia with an axe and there­after, all the accused appellants entered into the North vity hut and started assaulting his father Nityamohan Noatia. His father was pulled to the courtyard by the accused ap­pellants and then, brutally assaulted by them. At that time, his uncle Nityalila Noatia came to the scene, resisted them but he was also assaulted by them brutally as aresult of which, his father and uncle died. At that time, his brother Sonadhan Noatia came and told them that if his father did something wrong, the law would punish him. Immediately, the accused appellants started assaulting his brother and due to such assault, his brother Sonadhan Noatia also died. The accused appellants left all the three dead bodies in the courtyard and went away. PW-12 further stated that ac­cused NarayanNoatia and Krishnabashi tried to assault his mother Puspa Rani Noatia (PW 10) and brother Rabidhan Noatia (PW 6) who ran away and reported the matter to police. The accused appellants left all the three dead bodies in the courtyard and went away. PW-12 further stated that ac­cused NarayanNoatia and Krishnabashi tried to assault his mother Puspa Rani Noatia (PW 10) and brother Rabidhan Noatia (PW 6) who ran away and reported the matter to police. The police came to their house and arrested accused Narayan Naotia and Padmamani Noatia In cross-examination, this witness was suggested by the defence that the accused appellants did not come to their house armed with dao, lathi, axe, dagger, etc., and they did not assault his brother Lilmani Noatia with an axe; the accused appellants did not enter the North vity hut and did not assault his father Nityamohan Noatia and the accused appellants did not drag his father to the courtyard and did not assault him bru­tally. He denied all those suggestions. He stated clearly that till the police came, he was with his mother at his home. According to this witness, as stated in the cross-examination, the incident took place in the moonlit night. Moreover, there was electricity in their house. He told the Daroga Babu that there was elec­tricity in their house in the night of occurrence. He was confronted with his statement under Section 161 Code of Criminal Procedure, 1973, but no such statement was found therein. This witness again stated that there were 14/15 houses near their house and the neighbouring people did not come to their house at the time of incident. He voluntarily further stated that the neighbouring people came but the accused appellants threatened and asked them not to come. Suggestion was put to the effect that he falsely stated that neighbouring people did not come due to threat of the accused appellants and there was no electricity in their house. He denied the same. He stated that his father and uncle were not exorcists. He was suggested that since some patients died due to wrong treatment by his father and uncle exorcists, the local people being enraged, attacked their house and killed his uncle, father and brother but he denied the same. He also denied the suggestion that he deposed falsely against the ac­cused appellants as tutored by his brother Lilmani Noatia. 13. PW13, Smti. Bharati Noatia, w/o in­formant (PW 5) also claims to be an eye­witness. According to her, at about 8 pm, the accused appellants armed with dao, lathi, axe, etc. He also denied the suggestion that he deposed falsely against the ac­cused appellants as tutored by his brother Lilmani Noatia. 13. PW13, Smti. Bharati Noatia, w/o in­formant (PW 5) also claims to be an eye­witness. According to her, at about 8 pm, the accused appellants armed with dao, lathi, axe, etc. came to their house and alleged that her father-in-law was an exorcist and due to his 'false treatment', the father-in-law of her sis­ter-in-law had been suffering. When her hus­band came forward, accused Narayan Noatia assaulted him with an axe and then all the ac­cused appellants entered their North vity hut where his father-in-law was present and as­saulted him brutally till his death and when her uncle-in-law objected, he was also as­saulted by the accused appellants to death. Her brother-in-law Sonadhan Noatia came and objected to the act of the accused ap­pellants but he was also assaulted to death. As informed by her brother-in-law Rabidhan Noatia, the police came and took away the dead bodies of her father-in-law, uncle-in-law and brother-in-law. Accused Narayan Noatia and Padmamani Noatia were arrested by the police. During cross-examination, she stated that she told the investigating officer about the assault committed upon her husband Lilmani Noatia with an axe by accused Narayan Noatia. Her attention was drawn to the state­ment recorded under Section 161 Code of Criminal Procedure, 1973, but no such spe­cific statement was found therein. She stated that till the police came, her mother-in-law was at home. She denied the suggestion that she made false statement that the accused appellants armed with dao, lathi, axe, etc., entered into their house and killed her father-in-law, uncle-in-law and brother-in-law. She also denied the suggestion that accused Narayan Noatia did not assault her husband with an axe. She denied the further sugges­tion that her father-in-law and uncle-in-law were exorcists by profession and the people of the locality attacked their house in the dark night and killed the deceased persons as the people were enraged as they used to give false treatment and killed many patients. Sig­nificantly, the defence made a suggestion to this witness that her father-in-law, uncle-in-law and brother-in-law were Congress work­ers and as the accused appellants are CPI(M) workers, they have been implicated falsely in this case by her husband due to political ri­valry. The said suggestion was denied by her. Sig­nificantly, the defence made a suggestion to this witness that her father-in-law, uncle-in-law and brother-in-law were Congress work­ers and as the accused appellants are CPI(M) workers, they have been implicated falsely in this case by her husband due to political ri­valry. The said suggestion was denied by her. She also denied that she deposed falsely against the accused appellants as tutored by her husband. 14. PW-5, Lilmani Noatia, is the informant and son of deceased Nityamohan Noatia. As per his deposition, the accused appellant along with others armed with dao, lathi, dagger, etc., attacked their house. When he enquired why they had attacked their house, he was assaulted by the accused appellant Narayan Noatia with a dao in the right hand corner of his forehead. His uncle Nityalila Noatia tried to obstruct the accused appellants but they assaulted his father brutally and then dragged him outside the hut and killed by axe. His younger brother deceased Sonadhan Noatia who came to enquire about the matter, was also assaulted by accused Sakhi Kumar Debbarma and Narayan Noatia as a result of which he died. His uncle Nityalila Noatia also died due to the assault. After killing the de­ceased persons, the accused appellants ex­pressed their happiness and left the place. Ac­cording to him, the accused appellants killed his father, uncle and brother, as they were active members of the Congress Party. He produced one axe stained with blood before Daroga Babu who seized the same by pre­paring a seizure list (Ext.-7) which was signed by him as a witness. The axe was marked as Ext.-M.O.-2. In the cross-examination, he deposed that the said axe was produced by him after 14 days of the incident. FIR named accused Deb Choudhury is his brother-in-law and the name of Deb Choudhury was included in the FIR as an accused inadvertently. PW-5 further stated that accused Narayan Noatia is a younger brother of Deb Choudhury. He reiterated his statement that accused Narayan Noatia assaulted him with dao and he stated the same before the Daroga Babu. But when the defence counsel confronted him with his earlier statement made before the investigat­ing officer under Section 161 Code of Crimi­nal Procedure, 1973, no such statement is found. He claimed there was electricity in their house at the time of the incident. But when the defence counsel confronted him with his earlier statement made before the investigat­ing officer under Section 161 Code of Crimi­nal Procedure, 1973, no such statement is found. He claimed there was electricity in their house at the time of the incident. He denied the suggestion that there was no electric line in their area at the time of incident. He also denied the suggestion that it was dark at the time of the incident. According to him, while lodging the FIR, he did not state before the Daroga Babu that his father used to work as an exorcist. He was then confronted by the defence counsel that it was infact stated by him before the police which was marked as Ext.-B subject to confirmation by the Inves­tigating Officer. He denied the suggestion that his father and uncle, were exorcists and they used to treat various types of patients coming from different places including Bangladesh and many patients died due to wrong treat­ment by his father and uncle and the villagers being enraged attacked their house and killed his father, uncle and brother. 15. From the evidence of above eye-wit­nesses, it is found that accused Narayan Noatia, Manoranjan Noatia, Sakhiram Debbarma, Sakhi Kumar Debbarma and Krishnabashi Noatia, took active role in as­saulting and killing the deceased persons. As per the evidence of PW 5, informant, accused Narayan Noatia used dao in assaulting him and deceased Nityalila Noatia. But accord­ing to evidence of PW 6, PW 10, PW 12 and PW 13, accused Narayan Noatia used an axe in assaulting Lilmani Noatia, deceased Nityamohan Noatia and Lilmoni Noatia (P W 6). There is, therefore, a contradiction to the use of weapon by accused Narayan Noatia. As per the evidence of PW 10, accused Manoranjan Naatia used an axe in assaulting the deceased Nityamohan Noatia. The other PW 5, PW 6, PW 9, PW 12 and PW 13, in their evidence, stated that accused Manoranjan Noatia used dao in assaulting the victims. As per the evidence of P W10, both accused Manoranjan Noatia and Narayan Noatia assaulted deceased Nityalila Noatia and Nityamohan Noatia with an axe in her house. Her evidence, in this regard, has not been corroborted by other eye-witnesses namely PW 5, PW 6, PW 9, PW 12 and PW 13. As per the evidence of P W10, both accused Manoranjan Noatia and Narayan Noatia assaulted deceased Nityalila Noatia and Nityamohan Noatia with an axe in her house. Her evidence, in this regard, has not been corroborted by other eye-witnesses namely PW 5, PW 6, PW 9, PW 12 and PW 13. The Investigating Officer (PW 14) who conducted the investigation at the initial stage, seized one axe only when it was pro­duced by the informant (PW 5) on 28.04.2008 i.e. after 14 days from the date of incident. There is no mention in the evidence of PW 14 as to whether the said axe was sent for chemical examination to confirm whether it bore human blood. There is also no conclu­sive proof as to the use of 2 axes by the ac­cused appellants. 16. It is to be noted that all the accused appellants belong to the same village. The in­formant in his FIR clearly meantioned that his father used to indulge in exorcism/sorcery and used his charms and incantations and the ac­cused appellants killed his father, brother and uncle, for no fault of theirs. In the cross-ex­amination, PW 5, however, stated that his deceased father and uncle were not working as exorcists. In this respect, it may also be noted that PW 1, Sadhan Noatia, a distant relative of deceased Nityalila Noatia, during cross-examination, stated that Nityamohan Noatia and Nityalila Noatia used to work as exorcists. He came to know from the radio news that they were killed by the enraged people thinking them to be fem (diani)'. People of the locality and even from Bangladesh used to come to them for various works of exor­cists and a number of people died due to their wrong treatment and as such, people were angry with them. The above evidence of PW 1, has been corroborated by PW 2, Sri Dhan Kumar Noatia. Another witness PW 8, Sri Jatin Hari Noatia, co-vilalger, whose house is situated in the western side of the deceased Nityamohan Noatia, intervened by one house only, testified that deceased Nityamohan Noatia and Nityalila Noatia were working as exorcists at the time of incident for which the local people were angry with them as lot of patients died due to their wrong treatment. From their evidence, it has become clear that at least some people of the locality were against the deceased persons as they were indulging in acts of exorcism. No witness has been examined to testify the fact of any death due to alleged wrong treatment of exorcists late Nityamohan Noatia and Nityalila Noatia. It could not be ascertained from this P W 8 as to whether among the accused appellants, any family member or relative lost life due to wrong treatment by the deceased exorcists for which they became inimical and wanted to take re­venge on the deceased. Had there been such death due to wrong treatment of the exor­cists or their misdeed, it can easily be inferred that they had common intention to take re­venge offfnem. There is no evidence to the effect that there was an incident of death due to misdeed of the deceased exorcists few days before the alleged incident due to which the entire villagers or a group of villagers came out to attack the family members, mainly the deceased Nityamohan Noatia and Nityalila Noatia. 17. The prosecution initially projected a case of revenge or enragement of the people of the locality as the deceased Nityalila Noatia and Nityamohan Noatia were practising ex­orcism and they were responsible for the death of several people due to their misdeed. But if it is so, then a question arises as to why only a group of 11 members from the same village would indulge in such criminal act of attacking the house of the deceased and kill­ing them. 18. It is noteworthy that, the prosecution, on the basis of evidence of PW 5, PW 6, PW 9, PW 10, PW 12 and PW 13 (herein­after referred to commonly as eye-witnesses) has been able to prove the presence of all the accused appellants at the place of occurrence but it is not enough to hold all of them guilty or vicariously liable. It is to find out if they came to the place of occurrence in further­ance of common intention to kill the de­ceased. 19. It is to find out if they came to the place of occurrence in further­ance of common intention to kill the de­ceased. 19. Now we shall deal with the most im­portant aspect relating to act done by several persons in furtherance of common intention of all and the constructive or vicarious liabil­ity for such act within the meaning and pur­port of Section 34 of I.P.C. The meaning of common intention under Section 34 of I.P.C. is to be understood in contrast to common object under Section 149 IPC. There may be "similar intention" or "same intention" amongst a group of people who have gath­ered and committed same crime attracting of­fence under Section 149 I.P.C. but it would not necessarily attract Section 34 I.P.C. if "common intention" is lacking. This position has been explained in Mohan Singh Vs. State of Tripura reported in AIR 1963 SC 174 , wherein, it has been held that common inten­tion which is the basis of Section 34 IPC is different from common object which is the basis of composition of an unlawful assem­bly. The common intention denotes action in concert and necesarily postulates the exist­ence of a pre-arranged plan and that must mean aprior meeting of minds. Cases to which Section 34 IPC can be applied disclose an element of participation in action on the part of all the accused persons. The acts may be different, may vary in their character, but they are all actuated by the same common inten­tion. The common intention required by Sec­tion 34 IPC is different from the same inten­tion or similar intention. In the classic case of Mahbub Shah Vs. Emperor reported in 1945 PC 118 which has been followed in many subsequent cases, held that to invoke the aid of Section 34 IPC successfully, it must be shown that the criminal act complained against was done by one of the accused persons in furtherance of common intention of all; if this is shown, then liability for the crime may be imposed on anyone of the accused persons in the same manner as if the acts were done by him alone. Following this law laid down by the privy council, the Apex Court held that though direct proof of common intention is seldom available, to bring home the charge of common intention, the prosecution has to establish, by evidence, whether direct or circumstaiitial, that there was a plan or meeting of minds of all the accused persons to com­mit the offence for which they are charged with the aid of Section 34 IPC. Again in Anil Sharma & Ors. Vs. State of Jharkand re­ported in (2004) 5 SCC 679 , it has been held further that although direct proof of common intention is seldom available, such intention can be inferred from the circumstances ap­pearing from the proved facts and circum­stances. However, in order to bring home the charge of common intention, the prosecution has to establish, by evidence, whether direct I or circumstantial, though there was a plan or meeting of minds to all the accused persons to commit the offence for which they are charged with aid of Section 34 IPC. Yet in another case of Noor Vs. State of Karnataka reported in (2007) 12 SCC 84 , it has been held that a common intention may be developed on the spot and although a per­son may not be held guilty for having a com­mon object which, in a given situation, he may be held guilty for having a common intention, but such common intention must be shared with others. Further, it was held therein that prosecution may succeed in obtaining a con­viction against the appellant for commission of offence under Section 34 IPC if the names of the other accused persons and the roles played by them are known and the specific over the act of the accused is not only known but also proved. 20. The prosecution, in the present case, could not adduce any evidence to prove com­mon intention of the accused appellants although it tried to prove the same through P W 1, PW 2, PW 7 and PW 8 as independent witnesses and co-villagers but they did not support the prosecution and at least 3 of them (P W 1, PW 2 and P W 7) have been declared hostile witnesses. This being the position, there is no scope for convicting the accused appel­lants Santiranjan Noatia, Brindakesh Noatia, Raju Mog, Padmamani Noatia, Santi Kumar Noatia and Sajal Noatia by operation of Sec­tion 34 IPC. This being the position, there is no scope for convicting the accused appel­lants Santiranjan Noatia, Brindakesh Noatia, Raju Mog, Padmamani Noatia, Santi Kumar Noatia and Sajal Noatia by operation of Sec­tion 34 IPC. Not much time is to be devoted by this Court on the point of possibility of identification of the accused appellants who came to the house of the deceased and com­mitted assault and murder. The accused ap­pellants were co-villagers. The time of oc­currence is around 8/8.30 P.M. Therefore, accused and the deceased were familiar to each other. The people in the rural areas, un­like the urban people, often meet and talk each other and therefore, they become familiar with the voice, body movement, manner of talk­ing, etc. It is, therefore, possible for them to recognize each other even without sufficient light in the evening like the time of alleged occurrence. There is nothing to disbelieve the evidence of the witensses about the identity of the accused appellants. The evidence of the eye-witnesses in this regard, is accept­able and the same are exhibited by the pros­ecution. 21. In the instant case, the Medical Of­ficer who conducted the autopsy on the dead bodies was not examined by the prosecution. However, the post-mortem reports were proved and marked as Exhibits-18,19, and 20. Ext. 18 is the post-mortem report of de­ceased Nityalila Noatia The detailed descrip­tion of the injury has been recorded therein, as under: "Right temporal bowl is fractured and un­derlying brain matter is penetrated and sharp and heavy penetrating instrument. Membranes are also cut with injuring adjacent blood ves­sels. Intracravial haemorrhage is present, more on right side". In the opinion of the Doctor, the victim died of severe head injury caused by heavy and sharp penetrating instrument which are homi­cidal in nature. Ext.-19 is the post-mortem report of de­ceased Sonadhan Noatia. The detailed de­scription of the injury has been recorded therein, as under: " 1) Laceration of scalp over left parietal bone with fracture on the underlying bowl with pro­truding brain matters, 2 such injuries were found side by side. (2) 3 small injuries- over left maxilla at the infra orbital margins. Deep about 3" each." In the opinion of the Doctor, the victim died of severe head injury causing dead and inju­ries are homicidal in nature by both heavy, sharp and blunt weapons. Ext.-20 is the post-mortem report of de­ceased Nityamohan Noatia. (2) 3 small injuries- over left maxilla at the infra orbital margins. Deep about 3" each." In the opinion of the Doctor, the victim died of severe head injury causing dead and inju­ries are homicidal in nature by both heavy, sharp and blunt weapons. Ext.-20 is the post-mortem report of de­ceased Nityamohan Noatia. The detailed description of the injury has been recorded therein, asunder: "Soft detached brain matters are found com­ing through scalp injuries. Fracture of the un­derlying bones are found as described. On open­ing of crevice, intracravical haemorrhage is found with ruptured membrane." In the opinion of the Doctor, the victim died of severe head injuries which are homicidal in nature and injuries are caused by heavy and blunt weapon. 22. From the post-mortem reports, it is clear that all the deceased persons received injuries by sharp and heavy weapon and blunt weapon as well, inflicted on their heads and due to such injury, brain matters protruded resulting into their death. These injuries very well fit in the usual/normal injury that might be caused by an axe, a weapon having both sharp and blunt edge. An axe is normally a heavy weapon. According to the evidence of wit­nesses, such heavy weapon like an axe was carried by the accused appellants Narayan Noatia and Manoranjan Noatia. According to the said eye-witnesses, amongst the named 11 accused appellants, only these 2 accused appellants took the active role in assaulting the deceased persons by the axe and dao they carried. It has been, therefore, proved by the prosecution that it was the accused appel­lants, Narayan Noatia and Manoranjan Noatia and none else, who actually used the axe and the dao and gave the fatal blow by the axe and dao in killing the deceased per­sons and they are direct'y liable for the death of the deceased persons. 23. The accused Narayan Noatia and Manoranjan Noatiahave been in possession of dangerous weapon like the axe and dao whereas some other accused appellants were carrying lathis only which are not considered to be dangerous weapons. The post mortem report, as discussed, earlier, clearly shows the mark of injury caused by sharp weapons. There is no medical evidence showing the in­juries on the deceased caused by lathis. This belies the evidence of the eye-witnesses that some accused appellants assaulted the de­ceased with lathis. The post mortem report, as discussed, earlier, clearly shows the mark of injury caused by sharp weapons. There is no medical evidence showing the in­juries on the deceased caused by lathis. This belies the evidence of the eye-witnesses that some accused appellants assaulted the de­ceased with lathis. They might have carried the lathis but as per the medical evidence, they have not used the same. This raises a ques­tion as to whether the other accused appel­lants participated in the act of assault on the deceased persons. If the medical evidence is taken into account, there is no scope for hold­ing a view that other accused appellants par­ticipated in the assault. The next question arises is as to whether the accused appellants constructively participated in the assault with common intention to kill the deceased. To make one constructively or vicariously liable under Section 34 of IPC, it requires a pre­arranged plan or what is called prior meeting of minds or prior concert of mind. Direct proof of common intention is seldom available but such intention can be inferred from the cir­cumstances appearing from the proved facts and circumstances of the case and/or from the conduct of the offenders unfolding itself during the course of action, hi respect of ac­cused appellants Narayan Noatia and Manoranjan Noatia, who, by holding sharp and dangerous weapon like axe and dao by which they grievously hit the deceased, have shown the common intention of killing the deceased. There is a direct proof and it needs no further proof to establish their common intention. In respect of other accused appel­lants who were carrying lathis only, it is diffi­cult to hold a similar view that they had com­mon intention to kill the deceased in partici­pation with the aforesaid 2 main accused ap­pellants. As the other accused appellants are also co-villagers, it was not unsual on their part to gather themselves, out of curiosity without any common intention, at the time of attack by accused appellants Narayan Noatia and Manoranjan Noatia on the deceased per­sons. Of course, common intention can be developed and manifested on the spur of the moment but again in such cases, there must be evidence to show that such common in­tention had developed among themselves in furtherance of such common intention. 24. Of course, common intention can be developed and manifested on the spur of the moment but again in such cases, there must be evidence to show that such common in­tention had developed among themselves in furtherance of such common intention. 24. In the instant case, from the conduct of accused appellants Narayan Noatia and Manoranjan Noatia, it has been amply es­tablished that they had common intention to kill the deceased persons. The other accused appellants who were holding lathis only, had common intention just to teach a lesson or assault the deceased by lathis without any in­tention to take their lives, hi fact, there is no medical evidence of assult by lathis or griev­ous injury caused due to assault by lathis. From the evidence of all the eye-witnesses, it is, however, found that some accused appel­lants were not seen with any weapon although they were present at the time of the occur­rence. There is no evidence as regards their participation in the assault. From the evidence of the eye-witnesses, it has not been estab­lished that they had common intention with the first category of accused appellants (Narayan Noatia and Manoranjan Noatia who were holding axe and had common in­tention to kill the deceased) and the second category of accused appellants who were holding lathis with common intention to as­sault the deceased. The third set of accused appellants who were without any weapons, cannot be put, without any cogent evidence, in either of the above two categories of as­sailants having common intention with either of them. 25. In our considered opinion, the third category of assailants viz. accused appellants Sri Sakhiram Debbarma, Sri Krishnabashi Noatia and Sri Sakhi Kumar Debbarma, without any arms and evidence of participa­tion in the alleged offence, cannot be con­victed under Section 302 of IPC in aid of Section 34 of IPC and they are entitled to get the benefit of doubt and acquittal. We order accordingly. 26. The second category of assailants who were present and found armed with lathis only, without any proof of participation in the crimi­nal act, in our considered view, had no com­mon intention to kill the deceased unlike the common intention stored by accused appel­lants Narayan Noatia and Manoranjan Noatia inasmuch as these 6 accused appellants viz. We order accordingly. 26. The second category of assailants who were present and found armed with lathis only, without any proof of participation in the crimi­nal act, in our considered view, had no com­mon intention to kill the deceased unlike the common intention stored by accused appel­lants Narayan Noatia and Manoranjan Noatia inasmuch as these 6 accused appellants viz. Santiranjan Noatia, Brindakesh Noatia, Raju Mog, Padmamani Noatia, Santhi Kumar Noatia and Sajal Noatia, had common intention only to assault the deceased by lathis without any intention to actually kill the de­ceased persons. This being the position, the aforesaid 6 accused appellants could not be fastened with vicarious or constructive liabil­ity so as to award the same conviction and sentence as could be awarded in case of ac­cused appellants Narayan Noatia and Manoranjan Noatia (first category of assail­ants). The common intention of killing and their participation in the criminal act by using the lathis having not been proved beyond rea­sonable doubt by the prosecution, we are in­clined to give the benefit of doubt and acquit the accused appellants Sri Sakhiram Debbarma, Krishnabashi Noatia, Sakhi Kumar Debbarma, Santiranjan Noatia, Brindakesh Noatia, RajuMog, Padmamani Noatia, Santhi Kumar Noatia and Sajal Noatia. Accordingly, we order acquittal of accused appellants Sri Sakhiram Debbarma, Krishnabashi Noatia, Sakhi Kumar Debbarma, Santiranjan Noatia, Brindakesh Noatia, Raju Mog, Padmamani Noatia, Santhi Kumar Noatia and Sajal Noatia and they shall be set at liberty forthwith if their further detention is not required in connec­tion with any other case. The bail bonds in respect of the aforesaid accused appellants shall stand discharged. 27. However, in respect of accused ap­pellants No. 1 Sri Narayan Noatia and No.4 Sri Manoranjan Noatia, we uphold and con­firm the conviction and sentence as awarded by the learned trial Court vide impugned judg­ment and order dated 14.09.2006 rendered by the learned Additional Sessions Judge, West Tripura, Sonamura, in Case No. ST 8(S.T.S.)/05. 28. This appeal accordingly stands al­lowed in part as stated and indicated above. 29. Send down the LCRs to the Court below forthwith.