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2015 DIGILAW 1527 (GAU)

Sorhab Ali (Md) v. State of Assam

2015-12-15

P.K.SAIKIA, RUMI KUMARI PHUKAN

body2015
ORDER P.K.Saikia, J. (CAV) - This appeal is directed against the Judgment dated 22.02.2012 rendered by the learned Sessions Judge, Goalpara in Sessions Case No.85/2007 convicting the appellants herein, namely, 1). Md. Sorhab Ali, 2) Md. Majibar Rahman and 3) Md. Baharul Islam @ Bharat Ali under Sections U/s. 148/302/149 of the IPC and sentencing them to imprisonment for life and also to pay a fine of Rs.2,000/- each, in default, R.I. for another 2(two) months for the offence U/s. 302 r/w Section 149 of the IPC and R.I. for 2(two) months for offence U/s. 148 of the IPC. 2. It may be stated that other 12 (twelve) persons along with the present appellants were acquitted of offence u/s 323 IPC on benefit of doubt. 3. Being aggrieved by and dissatisfied with the aforesaid judgment, the appellants have preferred this appeal citing several infirmities in the judgment under challenge. 4. We have heard Mr. A.K. Bhattacharyya, learned Senior Advocate assisted by Mr. H.A.Sarkar, Mr. A.K. Choudhury and Mr.D.K. Bhattacharyya, learned Advocates for the appellants. Also heard Ms. S.Jahan, learned Addl. P.P.Assam, appearing for the State respondent. 5. The facts, which are projected during investigation and trial and which are necessary for disposal of the present appeal, in short, are that on 25.12.2003 at about 10.30 p.m. while the informant, Md. Salahuddin Ahmed along with his uncle (deceased Moslemuddin Ahmed), Md. Moinuddin Ahmed, Jamir Ali, Nazmul Hoque, Fazar Ali were returning home from Soukatola Village, the appellants along with 12 other persons, namely 1) Sorhab Ali, 2) Mazibor Rahman 3) Abdul Rofique 4) Billal Hussain 5) Abul Hussain 6) Javen Ali, 7) Abed Ali 8) Hayat Ali, 9) Sayed Ali, 10) Nazimuddin, 11) Azimuddin, 12) Kalachan Ali, 13) Nidan Mollah 14) Baharul Islam and 15) Moktar Hussain had restrained the informant and others on the road and assaulted them with lathi, dagger etc near Salbari Badengdonga Tinali. 6. Being so assaulted, the informant and others fled the scene. His uncle Moslemuddin (since deceased) also tried to flee the scene in a bid to escape the attempt on his life. However, accused persons followed him and ultimately, inflicted injuries on him with daggers and other weapons which caused his death. Thereafter, the body of the deceased was thrown into the nearby river Ghagua. The body of the victim was, however, seen floating in the aforesaid river next day. 7. However, accused persons followed him and ultimately, inflicted injuries on him with daggers and other weapons which caused his death. Thereafter, the body of the deceased was thrown into the nearby river Ghagua. The body of the victim was, however, seen floating in the aforesaid river next day. 7. An FIR to that effect was lodged by One Md. Salahuddin Ahmed with the Officer-in-charge of Lakhipur Police Station on 26.12.2003. On receipt of the said FIR, the Officer-in-charge of the aforesaid Police Station registered a case vide Lakhipur P.S. Case No.192/2003 U/s. 120B/147/148/149/302/325 IPC and ordered one Sri Dhiren Baishya, SI of Police to investigate the case. 8. Being so entrusted with the investigation of the case, Sri Dhiren Baishya (I.O.) visited the place of occurrence, sent the dead body to hospital for post mortem examination, examined the witnesses, arrested the accused persons and did other things needful and on conclusion of investigation, he submitted charge sheet U/s. 302 IPC against 17 (Seventeen) accused persons U/s.120B/147/148/149/341/323/302 IPC and forwarded them to the Court to stand their trial for the offences aforesaid. 9. The learned Magistrate, before whom charge sheet was so laid, committed the case to the Court of Session since the offence U/s 302 IPC is exclusively triable by Court of Session. The learned Sessions Judge, Goalpara, on receipt of the case on commitment and on hearing the learned counsel for the parties, framed charge U/s 148/149/323/302 IPC against 15 accused persons including the appellants herein and the charges, so framed, on being read over and explained to the accused persons, they pleaded not guilty and claimed to be tried. 10. During trial, the prosecution side had examined as many as 15 (fifteen) witnesses including the informant, Medical Officer (M.O. in short) and the Investigating Officer (I.O. in short) of the case. The statements of the accused persons were also recorded U/s. 313 CrPC. Their pleas were also of total denial. In support of their pleas that they were innocent, they also adduced evidence of one defence witness. 11. On conclusion of the trial and on hearing the arguments, advanced by the learned counsel for the parties, the learned Sessions Judge, Goalpara while acquitting as many as 12 (Twelve ) accused persons was pleased to convict the present appellants of offences U/s. 148/302/149 IPC and sentenced them punishment as aforesaid. 11. On conclusion of the trial and on hearing the arguments, advanced by the learned counsel for the parties, the learned Sessions Judge, Goalpara while acquitting as many as 12 (Twelve ) accused persons was pleased to convict the present appellants of offences U/s. 148/302/149 IPC and sentenced them punishment as aforesaid. It is that judgment which has been assailed in the present appeal. 12. Mr. A.K.Bhattacharyya, learned Senior counsel appearing for accused persons arduously contends that the judgment rendered by the learned Trial Court cannot be sustained for reasons more than one. In that connection, it has been stated that while the learned Sessions Judge, Goalpara rendering the verdict of guilt against accused persons had overlooked some serious infirmities in the prosecution case. 13. According to Mr. Bhattacharyya, the story projected by the prosecution in the FIR and the story, it divulged before the Court during trial are so inconsistent that none of the stories rendered during the course of aforesaid case could be believed. In that context, it has been contended that in the FIR, nothing has been stated about the presence of the police personnel at the PO. 14. Equally importantly, the FIR also did not disclose that the incident in question took place at the paddy field. Nor did it state that one Md. Majibar Rahman had assaulted the victim with a dagger. However, on all those aspects, PWs gave different versions while rendering their evidence before the Court during trial. 15. It has also been contended that statements of some witnesses were recorded by the learned Magistrate U/s. 164 CrPC during the course of investigation. However, barring PW 8, MD. Moinuddin Ahmed, no other witnesses uttered any word about their having seen the incident in question in the light of torches which they reportedly carried to such place on the night in question. 16. However, while rendering evidence before court during trial, all of them deposed that they saw the incident under consideration in the light of torches which they carried to the PO on the aforesaid night. Such an episode is nothing but improvement of the statements they made before the Magistrate during investigation which makes the testimonies of all witnesses totally unreliable. The fact that the IO had seized only one torch during the course of investigation makes such a conclusion inevitable. 17. It has also been contented that Md. Such an episode is nothing but improvement of the statements they made before the Magistrate during investigation which makes the testimonies of all witnesses totally unreliable. The fact that the IO had seized only one torch during the course of investigation makes such a conclusion inevitable. 17. It has also been contented that Md. Jamir Ali (PW 9) did not disclose before the Magistrate as well as before the IO during investigation that Majibor and Bharat gave dagger blows on the head Muslim Uddin, since deceased. Similarly, Md. Moinuddin Ahmed, (PW 8) did not disclose before the IO that accused Sorhab punched his dagger on the back of his father. Such omissions on the part of those witness amounted to contradictions which again make their testimonies on a very vital point quite unreliable. 18. It has also been stated that the incident in question was reported to the police on the night in question and on the basis of such information, a G.D. entry was made and police thereafter came to the PO to take action in accordance with law. Said G.D. Entry was proved as Ext 13. However, a regular FIR was lodged next day which was proved as Exbt. 1. Since the FIR, Exbt. 1 was lodged during the course of investigation, same is hit by section 162 CrPC making Exbt. 1 an inadmissible document which, in turn, administers a fatal blow to the prosecution case. 19. It has also been also contended that there is drastic difference between the story told in the Exbt. 13 and story told in the FIR (Exbt. 1). Such drastic difference does not augur well to advance the cause of the prosecution case. In fact, such drastic differences, in the stories in the Exbt 1 and Exbt. 13 make the entire prosecution case unreliable. 20. It has also been contended that the person who gave the information regarding the incident in question to the police on the basis of which G.D. Entry (Exbt. 13) was made had never been called as witness although Exbt. 13 clearly disclosed the identity of such a person as well as the place where he resides. Such a failure too comes down heavily upon the prosecution case according to Mr. A.K. Bhattacharjee. 21. 13) was made had never been called as witness although Exbt. 13 clearly disclosed the identity of such a person as well as the place where he resides. Such a failure too comes down heavily upon the prosecution case according to Mr. A.K. Bhattacharjee. 21. It has also been argued by the learned counsel for the appellants that there were some serious discrepancies between the evidence of ocular witnesses and that of the Doctor on the point of injuries on the victim. In that connection, it has been stated that the Doctor had found one deep cut injury on the neck of the victim although he found two other cut injuries on the left wrist joint and right elbow joint. But if one believes the evidence of ocular witnesses, he would find that the assailants had inflicted too many injuries on the victim and such discrepancies again makes the prosecution case even more unreliable. 22. It has also been alleged that though the appellants were convicted of offence U/s. 302 IPC with the aid of Section 149 IPC, there is no evidence on record to show that there was any unlawful assembly of 5 or more persons at the place of occurrence, the object of whose was to kill the victim aforesaid. The fact that the learned Trial Court had to acquit as many as 12 accused persons and convicted only 3 persons of offence u/s 148/302/149 IPC is a clear proof of the same. 23. Since the prosecution could not establish that there was unlawful assembly of 5 (five) or more persons at the PO on the night in question with the object of killing the victim, the learned Trial Court ought to have concluded that the prosecution could not prove the charge u/s 148/302/149 IPC against the present appellants as well. 24. In support of such claims, the prosecution had relied on following decisions rendered by the Apex Court:- (1) Muthu Naicker And Ors. v. State of Tamil Nadu, reported in (1978) 4 SCC 385 . (2) Kuldip Yadav And Ors v. State of Bihar, reported in (2011) 5 SCC 324 . (3) Bharat Soni And Ors. v. State of Chhattisgarh, reported in (2012) 12 SCC 657 . (4) Chandra Prakash v. State of Rajasthan, reported in (2014) 8 SCC 340 . 25. v. State of Tamil Nadu, reported in (1978) 4 SCC 385 . (2) Kuldip Yadav And Ors v. State of Bihar, reported in (2011) 5 SCC 324 . (3) Bharat Soni And Ors. v. State of Chhattisgarh, reported in (2012) 12 SCC 657 . (4) Chandra Prakash v. State of Rajasthan, reported in (2014) 8 SCC 340 . 25. In Muthu Naicker (Supra), Apex Court held as follows :- "Para 6 Where there is a melee and a large number of assailants and number of witnesses claim to have witnessed the occurrence from different places and at different stages of the occurrence and where the evidence as in this case is undoubtedly partisan evidence, the distinct possibility of innocent being falsely included with guilty cannot be easily ruled out. In a faction ridden society where an occurrence takes place involving rival factions it is but inevitable that the evidence would be of a partisan nature. In such a situation to reject the entire evidence on the sole ground that it is partisan is to shut one's eyes to the realities of the rural life in our country. Large number of accused would go unpunished if such an easy course is charted. Simultaneously, it is to be borne in mind that in a situation as it unfolds in the case before us, the easy tendency to involve as many persons of the opposite faction as possible by merely naming them as having been seen in the melee is a tendency which is more often discernible and is to be eschewed and, therefore, the evidence has to be examined with utmost care and caution. It is in such a situation that this Court in Masalti v. State of U.P., adopted the course of adopting a workable test for being assured about the role attributed to every accused. To some extent it is inevitable that we should adopt that course. "Para 33. Under charge 4, the High Court has convicted accused 11-15, 18, 21-27 for an offence under Section 326/149, I.P.C. observing that these accused at least must have known that an offence under Section 325 (see original), I.P.C. was likely to be committed in prosecution of the common object of the unlawful assembly, particularly in view of the fact that Gajarajan was attacked and beaten by accused 1, 2, 3, 4, 5, 6, 7 and 19. After holding that these accused must have known that at least an offence of grievous hurt was likely to be committed in prosecution of the common object of the unlawful assembly and after referring to Section 325, I.P.C the High Court convicted the aforementioned accused under Section 326/149, I.P.C. Apart from that, once the High Court after holding that accused Nos. 8, 9, 10, 16, 17 and 20 were members of the unlawful assembly though they were not shown to have participated in the assault on Gajarajan, ought to have logically convicted them under Section 326/149, I.P.C. consistent with its finding in para. 65. That having not been done and the acquittal of accused 8, 9, 10, 16, 17 and 20 for the offence under Section 326/149, I.P.C. having become final, accused 3, 6, 7 and 19 would have to be acquitted of the same charge for the reasons hereinbefore mentioned. It would thus not only be unfair but self-contradictory to sustain the conviction of accused 11-15, 18 and 21-27 for the offence under Section 326/149, I.P.C. That would be an unequal treatment and, therefore, even though as members of the unlawful assembly they could have been fixed with vicarious liability, in view of: the situation obtaining on the finding of the High Court, we have no option but to acquit them for the offence under Section 326 /149, I.P.C. Accordingly, the conviction of accused 11-15, 18, and 21-27 for the offence under Section 326/149, I.P.C. as recorded by the High Court and the sentence imposed upon them for the same, are set aside. 26. In Kuldip Yadav (Supra), Apex Court held as follows:- "Para 38. "...Therefore, in order to fasten vicarious responsibility on any member of an unlawful assembly the prosecution must prove that the act constituting an offence was done in prosecution of the common object of that assembly or the act done is such as the members of that assembly knew to be likely to be committed in prosecution of the common object of that assembly. Under this section, therefore, every member of an unlawful assembly renders himself liable for the criminal act or acts of any other member or members of that assembly provided the same is/are done in prosecution of the common object or is/are such as every member of that assembly knew to be likely to be committed. Under this section, therefore, every member of an unlawful assembly renders himself liable for the criminal act or acts of any other member or members of that assembly provided the same is/are done in prosecution of the common object or is/are such as every member of that assembly knew to be likely to be committed. This section creates a specific offence and makes every member of the unlawful assembly liable for the offence or offences committed in the course of the occurrence provided the same was/were committed in prosecution of the common object or was/were such as the members of that assembly knew to be likely to be committed. Since this section imposes a constructive penal liability, it must be strictly construed as it seeks to punish members of an unlawful assembly for the offence or offences committed by their associate or associates in carrying out the common object of the assembly. What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was one which the members knew to be likely to be committed. There must be a nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object every member of the assembly will become liable for the same. Therefore, any offence committed by a member of an unlawful assembly in prosecution of any one or more of the five objects mentioned in Section 141 will render his companions constituting the unlawful assembly liable for that offence with the aid of Section 149, IPC ...." "Para 39. It is not the intention of the legislature in enacting Section 149 to render every member of unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to attract Section 149, it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly and it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object, they would be liable for the same under Section 149 IPC. "Para 40. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object, they would be liable for the same under Section 149 IPC. "Para 40. In Rajendra Shantaram Todankar v. State of Maharashtra and others (2003) 2 SCC 257 =2003 SCC (Crl.) 506, this Court has once again explained Section 149 and held as under: "14. Section 149 of the Indian Penal Code provides 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 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. The two clauses of Section 149 vary in degree of certainty. The first clause contemplates the commission of an offence by any member of an unlawful assembly which can be held to have been committed in prosecution of the common object of the assembly. The second clause embraces within its fold the commission of an act which may not necessarily be the common object of the assembly, nevertheless, the members of the assembly had knowledge of likelihood of the commission of that offence in prosecution of the common object. The common object may be commission of one offence while there may be likelihood of the commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. In either case, every member of the assembly would be vicariously liable for the offence actually committed by any other member of the assembly. A mere possibility of the commission of the offence would not necessarily enable the court to draw an inference that the likelihood of commission of such offence was within the knowledge of every member of the unlawful assembly. It is difficult indeed, though not impossible, to collect direct evidence of such knowledge. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime. Unless the applicability of Section 149 - either clause is attracted and the court is convinced, on facts and in law, both, of liability capable of being fastened vicariously by reference to either clause of Section 149 IPC, merely because a criminal act was committed by a member of the assembly every other member thereof would not necessarily become liable for such criminal act. The inference as to likelihood of the commission of the given criminal act must be capable of being held to be within the knowledge of another member of the assembly who is sought to be held vicariously liable for the said criminal act...." 27. In Bharat Soni (Supra), Apex Court held as follows:- "Para 15. Section 149 IPC, therefore, engrafts a principle of vicarious or constructive liability inasmuch as a person would be guilty of an offence, though he may not have directly committed the same if as a member of an unlawful assembly he had shared a common object with the other members to commit such an offence or if he knew that such offence was likely to be committed in prosecution of the common object of the assembly of which he was a member. "Para 16. The purport and effect of the provisions of Section 149 IPC has received the consideration of this court on more than one occasion. Without referring to any particular or specific precedent available on the point, it would suffice to say that determination of the common object of an unlawful assembly or the determination of the question whether a member of the unlawful assembly knew that the offence that was committed was likely to be committed is essentially a question of fact that has to be made 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 and a host of similar or connected facts and circumstances that cannot be entrapped by any attempt at an exhaustive enumeration. 28. In Chandra Prakash (Supra), Apex Court held as follows :- "Para 68. 28. In Chandra Prakash (Supra), Apex Court held as follows :- "Para 68. The next aspect which needs to be adverted to is non-framing of specific charge. On a perusal of the record, we find that the learned trial Judge has framed the charges specifically by putting the charges to the accused. The purpose of framing of charges is that the accused should be informed with certainty and accuracy of the charge brought against him. There should not be vagueness. The accused must know the scope and particulars in detail. In this context, we may refer to decision in Santosh Kumari v. State of Jammu and Kashmir and others , wherein it has been held as follows: - "17. Like all procedural laws, the Code of Criminal Procedure is devised to subserve the ends of justice and not to frustrate them by mere technicalities. It regards some of its provisions as vital but others not, and a breach of the latter is a curable irregularity unless the accused is prejudiced thereby. It places errors in the charge, or even a total absence of a charge in the curable class. That is why we have provisions like Sections 215 and 464 in the Code of Criminal Procedure, 1973. 18. The object of the charge is to give the accused notice of the matter he is charged with and does not touch jurisdiction. If, therefore, the necessary information is conveyed to him in other ways and there is no prejudice, the framing of the charge is not invalidated. The essential part of this part of law is not any technical formula of words but the reality, whether the matter was explained to the accused and whether he understood what he was being tried for. Sections 34, 114 and 149 IPC provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and as explained by a five-Judge Constitution Bench of this Court in Willie (William) Slaney v. State of M.P SCR at p. 1189, the charge is a rolled-up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable." "Para 69. In K. Prema S. Rao v. Yadla Srinivasa Rao, the Court opined that though the charge specifically under Section 306 IPC was not framed, yet all the ingredients constituting the offence were mentioned in the statement of charges. In that context, a three- Judge Bench of this Court ruled that mere omission or defect in framing of charge does not disable the criminal court from convicting the accused for the offence which is found to have been proved on the evidence on record. The said principle has been reiterated in Dalbir Singh v. State of U.P, State of U.P. v. Paras Nath Singh and Annareddy Sambasiva Reddy v. State of A.P. "Para 70. In the case at hand, as has been stated earlier, the charges have been framed and we do not find any vagueness. That apart, neither any prejudice has been caused nor has there been any failure of justice. Thus, the submission of Mr. Jain in this regard leaves us unimpressed". 29. The learned Senior counsel for the appellants further submits that one Mujaharul Islam was very much involved in the alleged crime. Mujaharul Islam belongs to Ujani community, a community to which deceased belong. However, though his name was there in the FIR, yet, no charge sheet was submitted against him indicating that the prosecution case based not on facts but on concoction. 30. On the other hand, Ms. S.Jahan, learned Addl. P.P.Assam submits that most of the contentions, raised from the side of the appellants, are without any substance. In regard to the contention that the story, narrated in the FIR and the story told and retold before the Court during trial are different, it has been stated that there are no major contradictions/inconsistencies between the story, recorded in the FIR and the story divulged before the Court during trial although there are some inconsistencies which are minor in nature, and under no circumstances, such inconsistencies can be allowed to be blown beyond their sizes to cause any damage to the prosecution case. 31. In regard to the contention that there are material contradictions between the statements, rendered by the witnesses before the Magistrate and the evidence rendered before the court during trial, it has been argued that some discrepancies do exist between the statements made before the Magistrate during investigation and the evidence rendered before the Court during trial. 32. 31. In regard to the contention that there are material contradictions between the statements, rendered by the witnesses before the Magistrate and the evidence rendered before the court during trial, it has been argued that some discrepancies do exist between the statements made before the Magistrate during investigation and the evidence rendered before the Court during trial. 32. But then, once again such discrepancies are too trivial to affect the credibility of the PWs or for that matter of the prosecution case. Being so, they are bound to be overlooked in ascertaining the charges levelled against the accused persons and having done so, learned Trial Court had done the right thing. 33. In regard to the contention that there are discrepancies in describing the PO, it has been stated that PO is situated not in one place as is evident from the materials on record. Rather such an incident occurred on the road as well as in the nearby field. Being so, the contention that PO is not properly described cannot be said to be correct proposition. 34. As far as allegation that no person from the neighbourhood of the PO was examined which makes the prosecution case doubtful is concerned, it has been stated that PO is situated in a thinly populated area and such incident occurred around 10.30 pm on a wintry December night meaning thereby that by that time, all the people living in the vicinity of the PO must have gone to sleep and in that view of the matter, non-examination of neighbouring people of the PO cannot be fatal. 35. In such a situation, the best witnesses would be those persons who were with the victim at the PO on that night and examination of such witnesses is, therefore, sine quo non in the facts and circumstances of the present case to prove the charges against the accused persons. Having examined those witnesses, the prosecution had done what it had to do under the aforementioned circumstances which, in turn, provide the prosecution case one more firm footing. 36. Having examined those witnesses, the prosecution had done what it had to do under the aforementioned circumstances which, in turn, provide the prosecution case one more firm footing. 36. In regard to the allegation that there were some discrepancies between the evidence of ocular witnesses and the evidence of the Doctor on the point of injuries, it has been argued that though some of the witnesses have stated that they saw the appellants planting several blows on the body of the victim, yet, on a reading the evidence of witnesses in between the line, one would find that such inconsistencies are not forceful enough to require the Court to hold that the prosecution case is required to be overthrown for such discrepancies. 37. In regard to the contention that the FIR (Exbt. 1) was lodged during the course of investigation, it has been stated that it is true that FIR Exbt. 1 was lodged during the course of investigation since the investigation in the case under consideration was initiated on the basis of information in the GD Entry dated 26.12.2003 (Ext. 13) and such, Ext. 1 is hit by the prohibition in Section 162 CrPC. 38. But then, according to learned Addl. PP, even one ignores the Ext.1 for it being inadmissible in law, yet then, in view of materials on record, it needs to be concluded that the charges against the appellants herein stand established beyond any shadow of doubt without the aid of Exbt. 1. Being so, the prosecution case cannot be thrown away only for Exbt. 1 becomes inadmissible in law. 39. As far as the allegation that the prosecution could not prove that there was an unlawful assembly of 5(five) or more persons at the PO on the fateful night with the object of killing the victim, it has been stated that there are undeniable testimonies to show that though all the miscreants who were present at the PO could not be recognised by the witnesses, yet, such materials make it abundantly clear that there were more than 5 miscreants at the PO on the night aforesaid and all of them converged at the PO, armed with deadly weapons. 40. What is equally important to note is that all of them in one or other participated in the crime in question. 40. What is equally important to note is that all of them in one or other participated in the crime in question. When one considers those facts, he would find that the appellants herein were part of an unlawful assembly, the object of which was to kill the father of PW 8 and in prosecution of common object of said unlawful assembly, some of those members of unlawful assembly had killed the person aforesaid. Being so, according to learned Addl. P.P., the appellants are liable to be convicted of offence u/s 302 IPC on the application provisions incorporated in section 149 IPC. 41. Coming to the allegation that since night in question was dark and frosty and in such a dark and frosty night, it was not possible for the witnesses to identify the miscreants who reportedly attacked and injured the victim at the place aforesaid, it has been submitted that such contention is also without any basis since there is indisputable evidence to show that most of the witnesses had seen the incident in the light of the torches which the parties to the case had carried to the PO on the night of 25.12.2003. 42. The learned Addl. P.P. Assam, therefore, urges this court to dismiss the appeal on affirming the judgment under challenge. 43. We have heard the learned counsel for the parties having regard to the evidence on record. However, before we proceed further, we find it necessary to have a look at the evidence of Dr. Joykanta Rabha (PW 13) who conducted autopsy on the body of the deceased. According to him, on 26.12.2003, he was working as M & HO at Goalpara Civil Hospital. 44. On that day, he conducted post mortem examination on the body of one Muslim Uddin Ahmed in connection with Lakhipur P.S. GD Entry No. 570 dated 26.12.03 and found the following:.- "External Appearance: A middle aged male deadbody with rigor mortis present all over the limbs. The body has a deep cut injury on upper end of the neck. The size of the wound was 7" x 4" x 5". The trachea also cut into pieces. The edge of the wound is fine. Cranium And Spinal Canal A cut injury on the left wrist joint. Size 2" x 5" x 1". Edge is find. Another cut injury on the right elbow joint 2" x 1" x 5" in size. The size of the wound was 7" x 4" x 5". The trachea also cut into pieces. The edge of the wound is fine. Cranium And Spinal Canal A cut injury on the left wrist joint. Size 2" x 5" x 1". Edge is find. Another cut injury on the right elbow joint 2" x 1" x 5" in size. Thorax - Healthy, Abdomen - Healthy, Opinion In my opinion, the cause of death is hemorrhage and shock due to cut injuries particularly in the neck. Ext.12 is the post mortem report and Ext 12(1) is my signature". 45. The evidence of Doctor clearly reveals that the victim died because of sustaining as many as 3(three) cut injuries which are anti-mortem in nature. In other words, the death of the victim was homicidal. 46. So situated let us see who caused the death of the victim? We have already found that according to the prosecution, PW 2, PW 5, PW 6, PW 8, PW 9 are the eye witnesses to the incident. Being so, let us first consider the testimonies of those witnesses. 47. PW 2, Md. Salah Uddin Ahmed deposes that days prior to the date of incident in question, the members of the Gour Nagar Gaon Panchayat and the VDP President Moslem Uddin held a meeting to discuss the call upon charge against accused Sorhab Ali who was the then Secretary of the aforesaid Gaon Panchayat. In the meeting aforesaid, a resolution was adopted against accused/appellant Sorhab Ali and the victim was requested to execute the same. 48. On the date of occurrence, there was a meeting in the house of one Md. Roshuluddin Ahmed @ Rashul (PW 10) of Soukatola village and such meeting was held to finalise the resolution against accused Sorhab Ali. On that night, PW 2 along with the victim and PW 4, Md. Rajab Ali, PW 5, Md. Nazmul Hoque, PW 6, Md. Fazar Ali, PW 8, Md. Moinuddin Ahmed and PW 9, Md. Jamir Ali @ Jamir Uddin were returning home from the house of PW 10. 49. At about 10.30 pm, they arrived at a place called Salbari Badengdonga Tinali. The moment they arrived at such place, a person in police facade flashed a torch light on them and inquired them as to the place they were coming from. PW 2 and other persons also flashed their torch light on him. 49. At about 10.30 pm, they arrived at a place called Salbari Badengdonga Tinali. The moment they arrived at such place, a person in police facade flashed a torch light on them and inquired them as to the place they were coming from. PW 2 and other persons also flashed their torch light on him. Soon thereafter the appellant Majibor hit on the head of victim by a khukuri. 50. Being so hit, the victim started fleeing towards the paddy field nearby. PW 2 also followed him but he fell down on the ground. Then he saw accused Majibor Rahman, Sorhab Ali, Rofique @ Maju, Baharul @ Bharat caught hold of the victim in the paddy field and some other persons also joined them by that time. Out of fear, PW 2 fled the scene and reached his house little later. 51. His brother Allauddin Ahmed reported the matter to the police and police came to the PO on that night itself and made a search for the victim but he could not be traced out. Next day in the morning at about 5 am, the dead body of the victim was found floating in the Ghagua river. Police lifted the dead body and thereafter, it conducted an inquest on such a dead body. 52. On 16.12.2003, PW 2 lodged an FIR with the O/C, Lakhipur P.S. which he proved as Ext.1. The inquest report, prepared in that connection, was proved as Ext. 2. During the course of investigation, police seized one coat, one blue colored half Sweeter, one blue colored Punjabi, one black vest, one paijama and a pair of khaki colored sock. He also seized one woollen Sadar, five pairs of hawai chapal, one lid of khukuri and one torch light on the strength of seizure list Ext.3 in presence of witnesses. 53. During the course of investigation, statement of PW 2 was recorded by the Magistrate which he proved as Ext.5. In his cross examination, PW 2 stated that the houses of Hasen, Mir Kuddus, Sayed Ali, Kalachan, Babur Ali, Sukur Ali and Nur Mahammad are situated in the vicinity of the PO. He also stated that the house of Kasin Uddin and Rajab Ali are situated at a place not far away from the PO. In his cross examination, PW 2 stated that the houses of Hasen, Mir Kuddus, Sayed Ali, Kalachan, Babur Ali, Sukur Ali and Nur Mahammad are situated in the vicinity of the PO. He also stated that the house of Kasin Uddin and Rajab Ali are situated at a place not far away from the PO. According to him, though there was hue and cry at the PO when the incident in question was going on, he could not say whether the nearby people came to the PO or not. 54. He also admitted in his cross examination that he could not recognise the dresses of the accused persons due to darkness. According to him, at the time of incident, he only saw 4(four) persons, namely, Sorhab Ali, Majibur Rahman, Rofique and Baharul @ Bharat. According to him, he saw persons in police dress at the PO when the incident took place. He denied the suggestion that due to ethnic clashes between the two communities, he lodged a false case against the appellants and others. 55. PW 5, Md Nazmul Hoque deposes that on the fateful day, he along with PW 2, Md. Salah Uddin, PW 6,Md. Fazar Ali, PW 8, Md. Moinuddin Ahmed and PW 9, Md. Jamir Ali, victim and other members of Gour Nagar Gaon Panchayat went to the house of PW 10, Md.Roshuluddin Ahmed to discuss the matter relating to finalisation of draft resolution adopted against the accused Sorhab Ali. They returned from the house of Roshul Uddin Ahmed (PW 10) at night. Around 10.30 pm, they reached the PO. 56. The moment they reached the PO, a person in police dress had flashed a torch on them and inquired them as to the place they were going to. They also flashed torch on such a person. Then he saw accused Sorhab, Majibar Rahman, Bharat and Rofique were also there along with some other persons in police dress. Those persons were armed with dagger and khukuri. 57. He saw that Majibor gave a blow on the head of the victim with a dagger. He, therefore, fled the scene out of fear raising hue and cry. He came back to the PO soon thereafter along with other persons but he did not find the victim there. The people, present there, therefore, made a search for the victim. 57. He saw that Majibor gave a blow on the head of the victim with a dagger. He, therefore, fled the scene out of fear raising hue and cry. He came back to the PO soon thereafter along with other persons but he did not find the victim there. The people, present there, therefore, made a search for the victim. In the meantime, police personnel also came there and started searching the victim but in vain. 58. Next day in the morning, the dead body of the victim was found floating in the nearby river Ghagua. In due course, police conducted inquest on the dead body in presence of the witnesses and prepared a report which is proved as Ext.2. During the course of investigation, his statement was also recorded by the Magistrate which he proved as Ext.6. 59. PW 6, Md. Fazar Ali is also a person who attended the meeting at the house of PW 10 (Md.Roshuluddin) on the night in question. According to him, on that night, he along with PW 2, PW 5 and PW 9 were returning home from the house of PW 10. At about 10.30 pm, they reached the PO. The moment they arrived at such place, a person appeared before them and inquired them as to the place they were coming from. 60. The victim flashed a torch and in the light of the torch, he could identify the accused Sorhab, Mojibor, Bharat and Maja. According to him, another 8/10 persons were also with them. Soon thereafter, Majibor gave a blow on the head of the victim with a khukuri or dagger like weapon. Seeing such incident, out of fear, he ran away from the PO raising hue and cry. Hearing hue and cry, nearby people came to the PO. 61. He could see Fajlur Rahman in the group of persons who arrived at the PO soon after the incident. Sometime later, police came to the PO and made a search for the victim but in vain. Following day in the morning, the dead body of the victim was found floating nearby Ghagua river. Police conducted inquest on the body of the victim and sent the same to hospital for post mortem examination. 62. Sometime later, police came to the PO and made a search for the victim but in vain. Following day in the morning, the dead body of the victim was found floating nearby Ghagua river. Police conducted inquest on the body of the victim and sent the same to hospital for post mortem examination. 62. His statement was also recorded by the Magistrate which he proved as Ext.7.In his cross examination, he admitted that his wife Moriom Nessa was the Vice President of Gour Nagar Gaon Panchayat at the time relevant. He also admitted that in their group, there were six persons and all of them were returning home from the house of PW 10 on the night in question. 63. PW 8, Md. Moinuddin Ahmed is the son of the victim (deceased). According to him, on the fateful night he along with his father, PW 2, PW 5, PW 6, PW 9 were returning home from the house of PW 10. At about 10.30 pm, they reached Salpara Badongdonga Tinali. The moment, they reached such place, a man in police dress flashed a torch on them. They also flashed their torches on that person. In the light of the torches, they could recognise accused Sorhab Ali, Majibar Rahman, Bharat and Rofique @ Maju amongst the miscreants present there. 64. Soon thereafter, accused Mozibor planted a blow with a dagger like weapon on the head of his father. Being so attacked, his father tried to escape from such attack by running towards the paddy field. As his father started running towards the field, accused Sorhab Ali punched his dagger on the back of his father. Thereafter 8/10 persons came there in order to attack them. Out of fear, they left the scene raising hue and cry which brought about 100/150 people of the locality to the PO. 65. Thereafter, he (PW 8) along with other persons made a search for his father but in vain. In the meantime, Alauddin and Abdul Mazid reported the matter to the O/C, Lakhipur P.S. Within hours of reporting the incident, police arrived at the PO and made a search for his father but in vain. Next day in the morning at about 5 am, the dead body of his father was found floating in the nearby Ghagua river. Police retrieved the same and conducted an inquest on the dead body. 66. Next day in the morning at about 5 am, the dead body of his father was found floating in the nearby Ghagua river. Police retrieved the same and conducted an inquest on the dead body. 66. Thereafter the dead body of his father was sent to hospital for post mortem examination. During the course of investigation, his statement was recorded by the Magistrate which he proved as Ext.9. In his cross examination, he admitted that he did not state before the police during investigation that Sorhab punched his father on his back with a dagger. He also admitted in his cross examination that he did not recognise dress worn by accused persons on the night in question. 67. PW 9, Md. Jamir Ali deposes that on the fateful night, they were returning home from the house of PW 10 and reached the PO at about 10.30 pm. When they reached the PO, a person flashed torch on them. The said person was in police dress. He inquired them as to the place they were coming from. Amongst the miscreants, he could identify accused Mazibor, Sohrab, Bharat and Maju, all of them were armed with Khukuri and dagger like weapons. 68. Soon thereafter accused Mazibor ordered to get hold of the victim. In the meantime, accused Majibor and Bharat gave dagger blow on the victim. The victim then tried to flee the scene but in the meantime, accused Sorhab Ali planted a dagger blow on his back. PW 9 and others were also threatened by the accused persons and ordered them to leave the PO. Being so threatened, they left the PO raising hue and cry. 69. Thereafter, Alauddin and Majid went to Lakhipur Police Station and reported the matter to police. Police came to the PO little later and tried to find out the victim but in vain. However, in the next day in the morning, the dead body of the victim was found floating nearby Ghagua river with cut injuries on his neck. Police conducted inquest on the dead body and made a report in that connection which he proved as Ext.2. 70. During the course of investigation, his statement was also recorded which he proved as Ext. 10. In his cross examination, he stated that the night in question was dark. Police conducted inquest on the dead body and made a report in that connection which he proved as Ext.2. 70. During the course of investigation, his statement was also recorded which he proved as Ext. 10. In his cross examination, he stated that the night in question was dark. In his cross examination, he confirmed that apart from him, PW 2, PW 5 and PW 9 had also torches with them. It is also in his evidence that he could not recognise what types of cloths were worn by the accused persons on the night in question. 71. PW 10, Md. Roshuluddin Ahmed deposes that on the fateful day, the victim came to his house at about 3/4 pm with an application in his hand and requested him to re-write it. The said application was against Sorhab Ali, the then president of Gaur Nagar Gaon Panchayat. He thereafter, finalised the application and handed it over to the victim. At about 7 pm, PW 2, PW 5, PW 8 and PW 9 came to his house. 72. At about 9/10 pm, all those persons left his house. Next day, he came to know that the victim was murdered and his body was found floating in the nearby Ghagua river. The suggestion that Moslemuddin (victim) did not visit his house on the eventful day was denied by him. He, however, admitted that he did not witness the incident in question. 73. PW 11, Md. Abdus Sattar deposes that since before the incident some persons of the village had some grievances against accused Sorhab Ali, the then president of G.P. for which a meeting was held which was presided over by PW 11. He advised the people that it is not their duty to remove the president of Gaon Panchayat and requested the people to leave it to the authority concerned to take action in accordance with law. Subsequently, he learnt that the victim was killed. 74. PW 7, Md. Hasan Ali deposes that on the night in question, he was in his house and on hearing hue and cry, he came out of his house and met PW 2, PW 9 at the PO. They told him that the victim had gone missing. Next day in the morning, the body of the victim was found floating in the nearby Ghagua river. They told him that the victim had gone missing. Next day in the morning, the body of the victim was found floating in the nearby Ghagua river. In that connection, he made a statement before the Magistrate which he proved as Ext.8. 75. PW 12, Dr. Khalid Hussain (MO) deposes that on 26.12.2003, he was working as Senior M and HO at Lakhipur PHC. On that day, he examined one Salauddin Ahmed on police requisition in connection with the Lakhipur P.S.Case No. 192/03 and found a lacerated wound over the little finger. 76. PW 14, Sri Dipak Kr.Das is a police officer. According to him, on 26.12.2003 he was working as O/C, Lakhipur P.S. On that day at about 12-10 am, he got a telephonic message from one Moinuddin Sheikh of Gosaidubi that on that night at about 10.30 pm when victim along with some other persons were returning home from Soukatula village, some miscreants attacked and kidnapped the victim. 77. Accordingly, he made a GD Entry No.570 dated 26.12.2003 and went to the PO and he reached the house of the victim. Sometime later, he made a search for the victim but in vain. Following day in the morning at about 6 am, he came to know from the people nearby that the body of the victim was found floating nearby Ghagua river. He went there and conducted an inquest on the dead body and prepared a report in that connection, which he proved as Ext.2. 78. Thereafter, he sent the body of the victim to hospital for post mortem examination. Next day, PW 2 lodged an FIR and on the basis of which he registered a regular case and ordered to investigate the case. In is cross-examination, he clarified that he conducted inquest on the dead body at about 6 am on 26.12.2003 whereas the formal FIR was lodged at about 10.30 am on 26.12.2003. 79. PW 15, Sri Dhiren Baishya, deposes that on 26.12.2003 he was working as I/C Jaleswar Police Out Post under Lakhipur P.S. On that day on receipt of an FIR from PW 2, O/C, Lakhipur P.S. registered a case and ordered him to investigate the case. Accordingly, he visited the PO, recorded the statement of the witnesses, seized some wearing apparels and other articles on the strength of seizure list Ext.3. 80. Accordingly, he visited the PO, recorded the statement of the witnesses, seized some wearing apparels and other articles on the strength of seizure list Ext.3. 80. During the course of investigation, he seized one full coat, one blue colored half sweater, one blue colored Punjabi, one black vest, one paijama and one pair of Khaki colored sock. He also seized one woollen sadar, five pairs of Hawai chapal, one lid of khukuri and one torch light on being produced by the informant Salauddin at the Jaleswar Police out Post on 30.12.03 on the strength of seizure list Ext 3. 81. He also deposes that the statements of some witnesses were also recorded by the Magistrate U/s. 164 CrPC. On conclusion of the investigation, he also submitted charge sheet under the various provisions of law against accused persons. In his cross examination, he admitted that PW 2 did not tell him during investigation that he saw accused Sohrab Ali, Rafique, Baharul and Mazibor inflicting injuries on the victim. 82. Now, let us see how far such evidence makes out the charges levelled against the appellants. A careful reading of evidence of PW 10 reveals that on the fateful day at about 3.30 pm, the victim came to his house and requested him to finalise the resolution against the accused Sorhab Ali which he accordingly did. At about 7 pm, PW 2, PW 5, PW 6, PW 8 and PW 9 came to his house and all of them left at about 9/10 pm. The next day, he learnt that the victim was attacked and killed. 83. PW 2, PW 5, PW 6, PW 8 and PW 9, they being eye witnesses, also deposes that on the fateful night, they were returning home after attending a meeting which was held in the house of PW 10. According to them, when they arrived at Salbari Badengdonga Tinali at about 10.30 pm, a person in police dress appeared at such place and inquired them as to the place they were coming from. As he appeared before them, he also flashed a torch on those PWs. 84. Their evidence again reveals that most of those witnesses had torches in their hands and they also flashed their torches on such person as well as on the persons who accompanied such a person in police dress. As he appeared before them, he also flashed a torch on those PWs. 84. Their evidence again reveals that most of those witnesses had torches in their hands and they also flashed their torches on such person as well as on the persons who accompanied such a person in police dress. Their evidence also demonstrates that they could recognise at least Sorhab Ali, Majibor Rahman and Baharul Islam @ Bharat Ali. According to those PWs, miscreants had attacked the victim with the weapons in their hands. 85. It is also in the evidence of PW8 and PW9 that accused Sorhab Ali hit the victim on his back with a dagger. The evidence, so tendered by PW-2, PW5, PW6, PW8 and PW9 finds nearly unfettered support from the statements which they rendered before the Magistrate during investigation and which they proved as Ext. 5, Ext. 6, Ext. 7, Ext. 9 and Ext. 10 respectively. 86. Though these PWs were cross examined at length and although they were suggested that due to some inter community clashes, PW 2 had lodged FIR against the appellants and others with some ulterior motive, yet, in our considered opinion, cross examination of the PWs or for that matter suggestion put to them could not make any dent to the evidence of those PWs. 87. It is worth noting here that the testimonies of PW7 show that as the incident in question was in progress, he heard hue and cry coming from the PO for which he came out of his house and found many people to have assembled at the PO and learnt from such people that the victim had gone missing after the incident. The evidence of PW7 shows that an incident as depicted by PW2, PW5 to PW 9 did occur at the PO on the night in question. 88. Similarly, it is found from the evidence of PW11 that some of the villagers want to remove accused Sorhab Ali from the post of President Gaon Panchayat. But he opposed the same stating that it was not the duty of villagers to do so and advised the matter to be taken care of by the appropriate authority. Despite the resistance from PW11, a process was initiated to remove accused Sorhab Ali. 89. But he opposed the same stating that it was not the duty of villagers to do so and advised the matter to be taken care of by the appropriate authority. Despite the resistance from PW11, a process was initiated to remove accused Sorhab Ali. 89. Such evidence of PW 11 also shows that the motive of the miscreants in committing the crime in question which, in turn, fortifies the case against the accused persons, more particularly against the appellants, namely, Sorhab Ali, Bahrul Islam and Mazibar Rahman, out of which Md. Sorhab Ali undoubtedly occupied the centre stage since he was sought to be removed from the post allegedly for his conducting himself in a way not befitting to the post he held during the time in question. 90. However, referring to the statements of the witnesses before the Magistrate learned Sr. counsel for the appellants contends that there are some fundamental discrepancies between the evidence, which PWs rendered before the Court and the statements they made before the Magistrate during investigation. Similarly, there are some serious discrepancies between the evidence, which PWs rendered before the Court during trial and the statements they made before the police during investigation. 91. Such discrepancies between the evidence of PWs and the statements of the witnesses U/S 164 CrPC on one side and the evidence of the PWs and the statements of witnesses recorded U/s 161 CrPC, on the other side, according to learned counsel for the appellants, firmly show that the evidence of prime prosecution witnesses could hardly be relied on in ascertaining the allegations against the appellants. 92. On making a comparison of statements of PW 8 and PW9 which they rendered before the police during investigation with the evidence they rendered before the Court during trial, it is found that said PWs did not utter before the police that accused Sorhab Ali inflicted a dagger blow on the victim. Again PW9 did not divulge before the police that accused Majibor and Bharat inflicted dagger blows on the victim. 93. We have also found that except PW8, other PWs , viz, PW2 , PW5, PW 6 and PW9 did not utter any word about their having torches with them at the time of incident or accused persons carrying torches to such place when they rendered statements before the Magistrate during investigation. 93. We have also found that except PW8, other PWs , viz, PW2 , PW5, PW 6 and PW9 did not utter any word about their having torches with them at the time of incident or accused persons carrying torches to such place when they rendered statements before the Magistrate during investigation. We have also found that those PWs also did not tell the I/O that they witnessed the incident in the light of torches which the parties carried to the place of occurrence on the night in question. 94. But then, such omissions hardly affects the prosecution case since in their evidence ,all those PWs very categorically depose that they saw the incident in question in the light of the torches which the parties carried to the place of occurrence and which they used when the incident in question was in progress. Being so, the failure of those PWs to state before the Magistrate that they witnessed the incident aforesaid in the light of the torches they had, same not being improvements to their earlier statements, is found to be too inconsequential in causing any damage to the prosecution case. 95. Similarly, in their evidence, all those PWs, namely, PW2, PW5, PW 6, PW8 and PW9 emphatically depose that they saw at the PO accused Sorhab Ali, Majibor and Bharat along with many others, whom they could not recognise for want of sufficient light. Their evidence further reveals that accused Sorhab Ali, Majibor and Bharat along with had assaulted the victim. Being so, the failure of PW8 and PW9 to disclose that they saw accused Sorhab Ali, Majibor and Bharat inflicting dagger blows on the victim is, in our opinion, not at all fatal. 96. In regard to the allegation that the FIR (Ext.1) is hit by section 162 of the CrPC , it needs to be stated that such an FIR come under the mischief of section 162 CrPC since there is undeniable evidence to show that the O/C of the concerned police station received the information about the incident in question on the night of incident itself and on the basis of such information, a GD entry was made which was proved as Ext. 13. 97. 13. 97. More importantly, there is also evidence to show that on the basis of such GD entry, police came to the PO soon after such incident and started searching the person who had allegedly gone missing. Being so, it needs to be concluded that Ext.13 is the FIR on the basis of which police swung into investigation on the night of incident itself. Situations being such, since the FIR Ext.1 was received by the police during the course of investigation, it is evidently hit by Section 162 CrPC and as such, same cannot be treated as FIR and for all purpose, same needs to be kept out of consideration. 98. Situation being such, it needs to be seen if Ext. 13 can provide the substratum of the prosecution case. However, Ext. 13 comes under sharp criticism mainly for two reasons. First, it was alleged that the incident, as unfurled during trial, is different from the story, so narrated in the Ext. 13. Secondly, the person who reported such incident on the basis of which Ext. 13 was made was not examined as witness, and that too, without assigning any reason whatsoever. But then, we have found that both such allegations are without any foundation. 99. Coming to the first allegation, we have found that Ext.13 was reported to the Police at 12.30 am when the incident was still in progress and the informant did not have the full information about such an incident. Being so, he was not in a position to provide the police the detailed information about the incident under consideration. Being so, not giving detail information of the incident aforementioned to the police, in our firm opinion, cannot be fatal. 100. In regard to second allegation that the person who first gave the information about the incident in question was not examined as witness, it needs to be stated that ordinarily, the person who first gave the information to the police is required to be examined inasmuch as it is he who sets the law in motion. However, it cannot be said that a prosecution case needs to be thrown away only for the inability of the prosecution to examine the informant as witness. 101. However, it cannot be said that a prosecution case needs to be thrown away only for the inability of the prosecution to examine the informant as witness. 101. Coming back to our present case, we have found that the person who gave the first information to the police seems to be a person who did not have first hand information about such incident. Rather all the materials available on record reveal that he derived the information of the incident from others. Being so, his non-examination, in our considered opinion, is also not fatal. 102. As far as discrepancies between the evidence of ocular witness and the evidence of doctor over the injuries found inflicted on the body of the deceased is concerned, it has been stated that though the doctor who conducted post-mortem examination had found only 3 cut wounds on the body of the deceased, yet, the ocular witnesses are found saying that several miscreants assaulted the victim with the weapons in their hand inflicting several injuries on him. 103. It has been stated that though PW 8 and PW 9 are found saying that a dagger blow was planted on the back of the victim, the doctor did not notice such injury on the back of the deceased. Similarly, evidence of some of the witnesses that the miscreants planted blows on the head of the victim was not supported by the doctor. Such inconsistencies, contends learned counsel for the appellants, raise serious doubt about the very veracity of the prosecution case. 104. We have considered such submissions and have found that such submission too does not have much substance. This is because of the fact that the incident occurred on a wintry and frosty December night at about 10.30. pm. We have also found that the witnesses who accompanied the victim had come under severe attack all on a sudden for which those persons had to run for cover to save them from the assault of the miscreants. 105. In such a situation, there may be some discrepancies between the evidence of doctor and the evidence of ocular witnesses and such discrepancies cannot cost the prosecution case unless it is shown that such discrepancies are of that nature which affects the very root of the prosecution case. 105. In such a situation, there may be some discrepancies between the evidence of doctor and the evidence of ocular witnesses and such discrepancies cannot cost the prosecution case unless it is shown that such discrepancies are of that nature which affects the very root of the prosecution case. The discrepancies, aforementioned, when considered, in the facts and circumstances, narrated above, one would find same to be quite minimal in nature and same could cause no harm to the prosecution case. 106. In regard to the allegation that there are discrepancies in describing the Place of Occurrence, it is found that incident in question first occurred on the road and thereafter it occurred on the field as well since being intercepted by the miscreants on the road, the victim and his companions started running helter and skelter. That being so, in our considered opinion incident occurred on the road and on the nearby field as well. Being so, there is no discrepancy in describing the PO. 107. Coming to the allegation that the story, narrated in the FIR, (Exbt 1) and story, told and retold before the court, during trial are drastically different, we have found that such allegation too could cause no harm to the prosecution case since the story told and retold before the court during trial are found to be very similar in substance with the story, narrated in the Ext. 1. 108. The appellants have also contended that the learned trial court had convicted the appellants without there being any material to conclude that the victim was killed in prosecution of common object of an unlawful assembly of which appellants were the members. In support of such contention, it has been stated that prosecution could not prove that there are 5 or more persons at the PO when the incident aforesaid was committed. 109. It has further been contented that even if there is an assembly of 5 or more persons, the learned trial court made no attempt to ascertain the object of such an assembly, much less, such assembly's entertaining a common object of killing the victim at such a place. In view of above, the conviction of appellants u/s 302 IPC on invoking the provisions of section 149 IPC is unsustainable. 110. In view of above, the conviction of appellants u/s 302 IPC on invoking the provisions of section 149 IPC is unsustainable. 110. We have also considered such submissions and have found that the prosecution has proved that on the fateful night there were more than 5 persons at the PO. The prosecution has also proved that all of them are armed with deadly weapons. More importantly, the prosecution has also proved that the armed members of such an assembly not only singled out the victim from the group of persons who accompanied him to such place but also chased him over a long distance beating and thrashing. 111. When one considers such episodes in the light of the fact that the appellants and others armed with various weapons intercepted the victim and his companion at the PO at a very unusual time, there cannot be any escape from the conclusion that all those miscreants, their number being more than 5 (five), assembled at the PO only with the object of killing the victim and nothing else. 112. In view of our forgoing discussion, we have found that the decision relied on by the appellants serves not the cause of appellants but the cause of the prosecution instead. 113. Being so, we have no hesitation in holding that the prosecution has proved the charge U/s.148/302/149 IPC against the appellants beyond all reasonable doubt and as such, there is no infirmity in the judgment under challenge. 114. Resultantly, the judgment relied on is found inapplicable to the case in hand since facts and circumstances in the present case and facts and circumstances in the cases relied on are found material different. 115. Consequently, the appeal is dismissed being found devoid of merit. 116. Return the LCR forthwith.