JUDGMENT AND ORDER : P.K. Phukan, J. These appeals are directed against the judgment and sentence dated 06.06.2014, passed by the learned Sessions Judge, Dibrugarh in Sessions Case No.128/2005 convicting the accused appellants u/s 143/148/427/302 of the IPC read with section 149 of the IPC and sentencing them to Rigorous Imprisonment for life and to pay fine of Rs.2000/- each under Section 302/149 of the IPC and Rigorous Imprisonment for 3 months under Section 143/148/427 of the IPC. 2. This is a case of brutal murder of 3 brothers of the same family. The deceased persons namely, Dilip Konwar, Tapan Konwar and Rajib Konwar were the sons of Mouzadar of No.2 Ghurania Gaon village situated at Naharkatia under Tingkhong Police Station in Dibrugarh district and all of them were living together in the same house with their father. The other 3 brothers, namely, Bhaskar Konwar, Sourabh Konwar and Pradip Konwar were living separately. Residence of Bhaskar Konwar and Pradip Konwar is situated at a little distance away from the residence of the deceased persons and Sourabh Knowar was residing in the same campus with that of the deceased but in a separate house. 3. The case as projected by prosecution is that on the evening of 14.04.2003 at about 7.30 p.m. the accused Sanjeet @ Papi had some quarrel with Rajib Konwar in front of the house of Bhaskar Konwar. On the next day i.e., on the day of Rongali Bihu on 15.04.2003 the accused appellants and other charge sheeted accused armed with deadly weapons like dao, lathi, axe etc., at about 11.30-12.00 noon entered into the campus of the house of Bhaskar Konwar. On seeing the unruly mob approaching the house, apprehending danger to his life, he took shelter within the four walls of his house by bolting the doors and windows and locking the gates and grills. The appellants entered into his campus and being unable to find him, vandalized some of his properties outside the house and also set fire to his Ambassador car which was parked outside and thereafter, they left that place. On getting the information when his brother Dilip, Rajib and Tapan came towards his house for his rescue, all the accused accosted them on the Naharkatia Road and mounted a joint assault on them with weapons in their hands which resulted in their instantaneous death. 4. On getting the information when his brother Dilip, Rajib and Tapan came towards his house for his rescue, all the accused accosted them on the Naharkatia Road and mounted a joint assault on them with weapons in their hands which resulted in their instantaneous death. 4. On getting the information from one Babu Konwar, police from Tingkhong Police Station immediately proceeded to the spot after making a GD Entry No. 250 dated 15.04.2003 and on arrival, found 3 dead bodies lying at the place of occurrence at Parbatipur Tiniali. Police held inquest on the dead bodies and thereafter, sent the bodies for post mortem examination and also recorded statement of some witnesses. In the evening at about 7.30 p.m. Bhaskar Konwar lodged a written FIR regarding the incident on the basis of which Tingkhong P.S. Case No.40/2003 was registered and after completion of investigation submitted charge sheet against the accused appellants and some others u/s 143/147/148/149/447/427/302 of the IPC. 5. In order to prove the charges the prosecution examined as many as 33 witnesses including the officials. The defence pleaded innocence and in support of their case examined 5 witnesses. 6. The learned Sessions Judge upon consideration of the entire evidence on record found the accused appellants and other accused guilty and convicted and sentenced them accordingly as stated above. Being highly aggrieved, the accused appellants have preferred these appeals. 7. We have heard Ms. T. Som learned counsel appearing for the appellant in Crl. A. 37/2015, and Crl. A. No.233/2014, Mr. B. N. Gogoi, learned Amicus Curiae in Crl. A.(J) No. 64/2014, Crl.A.(J) No.65/2014 and Crl. A. (J) No.66/2014, Mr. N. N. B. Choudhury, learned Amicus Curiae in Crl.A.(J) No.68/2014, Mr. N. J. Das, learned counsel for the appellants in Crl. A. No. 238/2014, Mr. T. J. Mahanta, learned senior counsel appearing for the appellant in Crl.A.268/2014 and Mr. P. Sharma, learned counsel appearing for the appellants in Crl. A. No. 271/2014. We have also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam. 8. There is no doubt regarding the death of the deceased persons as a result of the injuries sustained by them. Post mortem on the dead bodies was conducted by PW 27, Dr. P. Sharma, learned counsel appearing for the appellants in Crl. A. No. 271/2014. We have also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam. 8. There is no doubt regarding the death of the deceased persons as a result of the injuries sustained by them. Post mortem on the dead bodies was conducted by PW 27, Dr. B. C. Roy on 16.04.2003 and on examination of the dead body of Dilip Konwar, he found the following:-- “Injuries (1) One cut injury 10 cm X 3 cm X mandible cut deep present on mid-chin; (2) One cut injury 12 cm X 4 cm X muscle deep & maxilla bone cut deep, present on middle of left cheek cutting up to cavity and part of left ear; (3) One cut injury from left angle of mouth towards left 6 cm X 1 cm X maxilla cut deep. Teeth cut and fractured. (4) One cut injury from mid line towards right forehead 5cm X 2 cm X right frontal bone cut deep; (5) One cut injury on upper left forehead 4 cm X 1 cm X frontal bone cut deep; (6) One oblique cut injury from mid frontal backwards towards left occipital bone on scalp 10 cm X 2 cm X skull bone deep; (7) One oblique cut injury 10 cm X 2 cm X bone cut deep on anterior right parietal region of scalp; (8) One cut injury 3 cm X 1 cm X muscle deep on anterior aspect of middle of right forearm (defence injury). Blood clots are firmly adherent in all the above injuries. Cranium and Spinal Canal Scalp : Cut injuries as described. On dissection, contusions present in parietal, occipital and frontal regions. Skull: cut injuries as described. Membrane and brain also found cut along some cut injury of scalp and skull. In the brain, inter-cerebral haemorrhage present. Conducting the post-mortem of the deceased, this witness has opined that cause of death was coma and shock resulting from the injuries sustained on the head and other parts of body as described. Skull: cut injuries as described. Membrane and brain also found cut along some cut injury of scalp and skull. In the brain, inter-cerebral haemorrhage present. Conducting the post-mortem of the deceased, this witness has opined that cause of death was coma and shock resulting from the injuries sustained on the head and other parts of body as described. Injuries were ante mortem and caused by heavy sharp cutting weapons and homicidal in nature.” On post-mortem examination conducted on the dead body of Tapan konwar, he found the following: “Injuries (1) One cut injury 12 cm X 4 cm X maxilla bone cut deep present anterior-posteriorly on middle part of left cheek cutting the middle part of the left ear also; (2) One cut injury on left lower parietal and occipital region of scalp 15 cm X 3 cm X skull and brain cut deep (about 3 cm); (3) One cut injury on left side of occipital region just above injury No. 2 measuring 6 cm X 1 cm X bone cut deep; (4) One cut injury on left side of occipital region of scamp just above injury No.3 measuring 5 cm X 1 cm X bone cut deep (5) One cut injury on upper most part of left side of neck below the angle of mandible 4 X 1 cm X muscle deep; (6) Cut injury 3 X 1 cm; 2 X 1 cm, another 1 X0.5 cm X all bone deep present on dorsum of left hand (defence injury). Blood clots firmly adherent in the wounds.” On post-mortem examination conducted on the dead body of Rajib Konwar, he found the following: “Injuries (1) One abrasion with contusion 6 X 4 cm on middle part of chest wall; (2) One cut injury obliquely placed 9 X 2 cm X scalp, skull and brain cut deep ( 3cm depth) present on anterior part of right parietal region of scalp; (3) One cut injury 7 cm X 1 cm X brain cut deep present on mid line over the vertebrae; (4) One cut injury 7 cm X 1 cm X scalp layers cut deep on left lower parietal region; (5) # numbers of parallel cut injuries 6 cm X 1 cm; 5 cm X 1 cm; 4 cm X 1 cm respectively. All the injuries were skull cut deep present on left occipital region; (6) One cut injury 8 X 3 X brain cut deep 3 cm depth present on posterior part of parietal region transversely placed; (7) Blood clots were found firmly adherent in the above wounds. Cranium and Spinal Canal Scalp and skull : Cut injuries present as described. Membrane and brain found cut along with brain cut deep injuries as described. Conducting the post-mortem of the deceased, this witness has opined that immediate death was resulted from the cut injuries sustained on the head. Injury No. 1 was caused by blunt impact and other were caused by heavy sharp cutting weapon. All injuries were ante mortem and homicidal in nature.” 9. The doctor opined that cause of death of the deceased persons was coma and shock resulting from the injuries sustained on the head and other parts of the body as described. The injuries were ante-mortem and homicidal in nature and caused by heavy sharp cutting weapons except injury No.1 found on the dead body of Rajib Konwar which was caused by blunt impact. The doctor proved the post-mortem reports Exbt.15, Exbt.16 and Exbt.17. Defence could not elicit anything of importance from him in cross examination and he reaffirmed that sweepers were also present at the time of examination of the dead bodies. The inquest on the dead bodies was held by the I/O, PW 28 Sri Ranjit Moran himself on the day of occurrence and he proved the inquest reports Exbt.9, Exbt.10 and Exbt.11. The inquest report also confirmed that the deceased persons sustained the above mentioned injuries. Other prosecution witnesses also noticed the injuries on the persons of the deceased. There is no room for doubt from the evidence that all the 3 persons died due to the injuries sustained by them which was caused by sharp as well as blunt weapons which fortifies the prosecution version that they were jointly assaulted with dao, axe etc. 10. Now, the pertinent question is who caused the injuries to the deceased which resulted their death. 11. Learned counsel for the appellants assailed the prosecution case from all sides but the main thrust of the arguments centered around delayed filing of the FIR, interestedness of the witnesses examined by the prosecution, lack of corroboration in their evidence and their reliability etc. Our attention was also drawn to the Exbt. 11. Learned counsel for the appellants assailed the prosecution case from all sides but the main thrust of the arguments centered around delayed filing of the FIR, interestedness of the witnesses examined by the prosecution, lack of corroboration in their evidence and their reliability etc. Our attention was also drawn to the Exbt. 7, information given to the Officer-in-charge Tingkhong Police Station on 25.04.2003 by the elder brother and the wives of the 3 deceased persons giving a detailed account of the entire occurrence, to argue that the information regarding the incident was collected by them from the persons who visited their house to console them after the occurrence and they were not eye witnesses as claimed by them. Defence also argued that the verbal information given to police soon after the occurrence is to be treated as the First Information Report and not the written report which was subsequently filed. 12. Controverting the submissions Ms. S. Jahan, learned Additional Public Prosecutor contends that the evidence of the eye witnesses, particularly PW1 to PW4 and PW12 to PW14, are clear and convincing and there is no reason to discard their evidence and defence could not bring any contradictions in their evidence with regard to their earlier version given before police to destroy their credibility. It is further contended that interestedness or close relation of witnesses is not a ground to reject their testimony, if otherwise, they are found to be reliable and trustworthy. It is also submitted that Ext.7, though, was tendered in evidence by the prosecution, it was not received by the concerned police station and it is nothing but an elaborated account of the entire incident provided by the informants, which cannot be a ground to disbelieve the prosecution story. Ms S. Jahan, however, admitted that the verbal information on the basis of which investigation commenced is the FIR of this case, the subsequent FIR being hit by Section 162 of the CrPC. 13. Before proceeding to discuss the merits of the appeals, it is necessary to address the contentions raised by the learned counsels appearing for both the parties. Ms S. Jahan, however, admitted that the verbal information on the basis of which investigation commenced is the FIR of this case, the subsequent FIR being hit by Section 162 of the CrPC. 13. Before proceeding to discuss the merits of the appeals, it is necessary to address the contentions raised by the learned counsels appearing for both the parties. The evidence of the Investigation Officer, PW 28 discloses that on the day of the occurrence while he was functioning as Officer-in-charge of Tingkhong Police Station, one Babu Konwar came to the police station at about 12.45 p.m., and informed that dead bodies of 3 persons were lying on the Moran-Naharkatia roadside. On receiving this information he made a GD entry No. 250 dated 15.04.2003 and immediately proceeded to the spot and found the dead bodies lying with cut injuries. The dead bodies were identified to be that of Dilip Konwar, Rajib Konwar and Tapan Konwar. As there was no Magistrate available due to Bihu holiday, he himself conducted the inquest on the dead bodies and thereafter, sent the dead bodies for post-mortem examination. He recorded the statement of some of the witnesses and also seized a gun lying near the place of occurrence with 3 cartridges vide Exbt.12. On that very day at about 7.30 p.m., PW 6 Bhaskar Konwar, lodged a written FIR, Exbt.8A alleging therein that 8/10 persons including the accused Mukut Gogoi, Titu Ruhi Das, Mintu Gogoi, Suraj Gogoi, Bishnu Gogoi, Pranjal Gogoi and others all armed with dao, axe, lathi etc., came to his house and cut down the front side gate and set fire to his Ambassador car and they also cut down the water pipes, grills etc., and damaged windows. Thereafter, they assaulted his brothers Dilip, Rajib and Tapan on the Moran-Naharkatia Road as a result of which they died on the sport. On receipt of the written FIR, a formal case was registered. 14. From the evidence of the Investigation Officer, there is no doubt that the verbal information regarding the occurrence was lodged by one Babu Konwar soon after the occurrence on the basis of which GD entry No. 250 date 15.04.2003 was made and he proceeded to the spot and he not only held inquest on the dead bodies but also had sent the dead bodies for post-mortem examination and he also recorded statements of some of the witnesses. His evidence reveals that before filing of the written FIR in the evening, he made sufficient progress in the investigation on the basis of the verbal information given to him by Babu. The GD entry No.250 dated 15.04.2003 has been tendered in evidence and since the investigation of the case commenced on the basis of the verbal information given, subsequent written FIR which was lodged in the evening cannot be treated as an FIR within the meaning of Section 154 of the CrPC and the verbal information is to be treated as the First Information Report in this case. The written FIR is nothing but a previous statement made under Section 161 of the CrPC. Similarly, Exbt.7 report, tendered in evidence by the prosecution, which was signed by the brothers and wives of the deceased persons and was lodged after 10 days of the occurrence on 25.04.2003, cannot be treated as FIR being hit by Section 162 of the CrPC. 15. The next limb of argument advanced by the learned counsels for the defence is that all the eye witnesses examined by the prosecution are close relatives of the deceased having interest in the case and as such, they cannot be relied upon. But we find no merit in the submission so advanced by the learned defence counsels. Law is well settled that conviction can be based on the testimony of the eye witnesses, sans corroboration, even though they are close relatives of the deceased, if they are found to be otherwise reliable and trustworthy. The Apex Court has held in a catena of decisions that mere fact that all the eye witnesses belong to a family cannot be a reason to disbelieve their evidence since they are all eye witnesses or nearby the spot when the incident occurred. Merely because eye witnesses are family members their evidence cannot be per-se be discarded. When there is allegation of interestedness, the same has to be established. Testimony of eye witness cannot be disbelieved when it is tested with cross examination [(Bhagga vs State of M.P. ( AIR 2008 SC 175 ) Bursing vs State of Punjab ( AIR 2009 SC 157 ), Y.I. Patel-vs-State of Gujarat (AIR 2004 SCW 4953)]. 16. When there is allegation of interestedness, the same has to be established. Testimony of eye witness cannot be disbelieved when it is tested with cross examination [(Bhagga vs State of M.P. ( AIR 2008 SC 175 ) Bursing vs State of Punjab ( AIR 2009 SC 157 ), Y.I. Patel-vs-State of Gujarat (AIR 2004 SCW 4953)]. 16. In Brahm Swaroop vs. State of U.P. AIR 2011 SC 180, the Apex Court has observed that merely because the witnesses were closely related to the deceased persons, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that effects the credibility of a witness, more so, a relation would not conceal the actual culprit and make allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases, the Court has to adopt a careful approach and analyze the evidence to find out whether it is cogent and credible evidence. 17. In Ranjit Singh vs. State of Madhya Pradesh AIR 2011 SC 255 the Apex Court has held that where the eye witnesses including the injured witnesses are closely related to the deceased, the law requires the court to examine their evidence with care and caution. Such close relatives and injured witnesses would definitely not shield the real culprits of the crime, and name somebody else because of enmity. 18. In the present case also all the eye witnesses to the occurrence PW1 to PW4 and PW12 are close relatives of the deceased being wife, son and daughter, but on that ground alone, their evidence cannot be discarded. Relationship is not a factor to affect the credibility of witnesses and their evidence is to be accepted if it is found to be reliable and trustworthy. The only requirement is to examine their evidence with great care and circumspection. 19. It is next contended that 2 of the eye witnesses, namely, PW 2 and PW 12, are child witnesses, aged about 10/11 years at the relevant time and prone to tutoring and as such, no reliance should be placed in their evidence. We do not find the argument in consonance with the principles of law laid down by the Apex Court in this regard. We do not find the argument in consonance with the principles of law laid down by the Apex Court in this regard. In K. Venkateswarlu vs. State of Andhra Pradesh [ (2012) 8 SCC 73 ], the Apex Court, while discussing the admissibility of evidence of a child witness had observed that evidence of a child witness can be relied upon if the court, with its expertise and ability to evaluate the evidence, comes to the conclusion that the child is not tutored and his evidence has a ring of truth. It is safe and prudent to look for corroboration for the evidence of a child witness from the other evidence on record, because while giving evidence a child may give scope to his imagination and exaggerate his version or may develop cold feet and not tell the truth or may repeat what he has been asked to say not knowing the consequence of his deposition in the court. Careful evaluation of the evidence of a child in the background and context of other evidence on record is a must before the court to decide to rely upon it. 20. The competency of a child to testify as a witness is well recognized in law. Only requirement is that the evidence of the child witness is required to be evaluated carefully as he is prone to tutoring. In the present case, of the 2 child witnesses examined by the prosecution, one, i.e., PW 2, who was a student of Class V/VI at the relevant time, made an omnibus and generalized statement that all the accused appellants present in the court assaulted the deceased persons whereas PW12, who was of the same age, attributed overt act to some of the accused appellants by not only naming them but also describing the manner in which they assaulted the deceased persons. He was subjected to cross-examination by the defence and he stood the test satisfactorily. His evidence cannot be rejected merely because he was a child at the relevant time and related to the deceased persons. 21. Defence also argued by referring to Exbt.7 information given to the Officer-in-charge of Tingkhong Police Station on 25.04.2003 that the witnesses who claimed to have seen the occurrence gathered the information regarding the occurrence only from the persons who visited their house after the occurrence to console them. 21. Defence also argued by referring to Exbt.7 information given to the Officer-in-charge of Tingkhong Police Station on 25.04.2003 that the witnesses who claimed to have seen the occurrence gathered the information regarding the occurrence only from the persons who visited their house after the occurrence to console them. The Investigation Officer denied having received any such written information on 25.04.2003 and according to him, it was not even forwarded to the court by him with the charge sheet. From the evidence of PW7, one of the brothers of the deceased persons, who is also a signatory to the Exbt.7, it appears that prosecution exhibited and proved the document through him and he admitted having filed the said complaint in the Tingkhong Police Station. From the impugned judgment of the trial Judge it is noticed that the learned Judge had gone through the GD entry register and found no reference of the Exbt.7 in the said register. No explanation has been offered by the prosecution as to how Exbt.7 came to be exhibited in the case which leaves us with no option but to ignore the same. Defence also failed to confront the witnesses by referring to Exbt.7 and the statements made therein. 22. Though the prosecution examined 33 numbers of witnesses in support of the case, prosecution heavily relied on the testimonies of the eye witnesses PW 1 to PW 4 and PW 12 and case is sought to be proved through the evidence of these eye witnesses. The independent witnesses examined could not say anything regarding the occurrence save and except finding the 3 dead bodies lying in the place of occurrence. Some of the witnesses saw the earlier occurrence which took place in the house of Bhaskar Konwar and they supported the prosecution version that the house of Bhaskar Konwar was vandalized and his Ambassador Car was set on fire. 23. The accused appellants denied that they had anything to do with the crimes committed. Plea of alibi was also taken. The trial Judge, however, rejected the plea and convicted the appellants by accepting the prosecution evidence. The learned trial Judge has held that all the accused appellants were members of unlawful assembly, the common object of which was to eliminate the male members of Mozumdar’s family. 24. The eye witnesses to the occurrence are PW 1, Smti. The trial Judge, however, rejected the plea and convicted the appellants by accepting the prosecution evidence. The learned trial Judge has held that all the accused appellants were members of unlawful assembly, the common object of which was to eliminate the male members of Mozumdar’s family. 24. The eye witnesses to the occurrence are PW 1, Smti. Rajani Konwar, wife of Sourabh Konwar and sister-in-law of the deceased persons, PW 2 Tapaswini Konwar, minor daughter of the deceased Tapan Konwar, PW 3, Smti. Jyoti Konwar, wife of the deceased Tapan Konwar, PW 4 Smti. Anjumoni Konwar, wife of deceased Rajib Konwar and PW 12 Kalyanmoy Konwar, son of deceased Dilip Konwar. According to PW 1, after hearing commotion she along with PW 3, PW 4 went to the spot and saw the accused persons assaulting the 3 deceased persons with dao, stick, khukri and axe in their hands. It is in her evidence that accused Sanjit Gogoi assaulted Dilip Konwar on his head with an axe and Budheswar Gogoi assaulted him with khukri on his face. Accused persons assaulted Tapan Konwar and he was given axe blow on his head by accused Mintu Gogoi, son of Parama Gogoi. Accused Mintu Gogoi, assaulted Rajib Konwar with an axe on his head and other accused persons also assaulted him with dao, stick etc. Due to the injuries sustained the 3 persons died on the spot. After causing injuries, the accused appellants fled away. 25. Her evidence reveals that though the Bazar was situated at a distance of about 50 meters from the house of Bhaskar Konwar but on that day the Bazar was closed. She denied the suggestion that the Bazar was kept open on that day due to Bihu. In cross examination also she deposed that accused Mintu Gogoi assaulted Rajib Konwar with an axe on his backside. According to her Jyoti Konwar, Tapaswini Konwar, Anjumoni Konwar, Kalyanmoy Konwar who also went to the place of occurrence saw the occurrence. She denied the defence suggestion of public assault on the deceased persons due to dispute regarding the Bazar. PW 2 minor daughter of the deceased Tapan Konwar claims to have seen the accused appellants assaulting the 3 deceased persons with dao, stick etc. Her evidence shows that she was a student of Class IV/V at the relevant time and hardly 11 years old. PW 2 minor daughter of the deceased Tapan Konwar claims to have seen the accused appellants assaulting the 3 deceased persons with dao, stick etc. Her evidence shows that she was a student of Class IV/V at the relevant time and hardly 11 years old. She made an omnibus statement against all the accused appellants without mentioning any names. She might have noticed all the accused appellants at the place of occurrence at that time. Her evidence to some extent, lend support to the prosecution case. 26. PW 3 also claims to have seen all the accused appellants assaulting her husband and brother in laws with lathi, sticks, dao etc., and she deposed that all the 3 persons died on the spot. She also implicated all the accused persons and claims to have seen them at the place of occurrence from a short distance. Her evidence also mostly remained unshaken in cross examination. PW 4 rushed to the spot along with PW 1 to PW 3 and she claims that accused Sanjit Gogoi, @ Papi (has not preferred appeal) assaulted Dilip Konwar on his head with axe. Accused Mintu Gogoi, Budheswar Ghatowar, Sanat etc., cut Dilip Konwar with dao and axe, the accused also assaulted Tapan Konwar. Accused Arup Gogoi stabbed Rajib Konwar with a bamboo on his belly, other accused Mintu Gogoi and Titu Gogoi, assaulted Rajib with axe and dao. Accused Arup Gogoi and Kushal Gogoi instigated the other accused to assault the deceased and as a result of the joint assault all the 3 persons died on the spot. She also claimed to have noticed mother of the accused Mintu Gogoi and wives of the accused Arup and Suraj instigating the other accused to assault the deceased. According to her, the accused appellants left the place in an Ambassador car, bicycles and on foot. The other eye witness PW 12 who is the son of the deceased Dilip Konwar aged about 10 years at the relevant time and according to him while he was playing on the road at about 12 noon he was informed by somebody about the occurrence taking place in the house of Bhaskar Konwar. His evidence also shows that on getting the information his father Dilip went out with a gun and at that time Budheswar who was standing on the road had thrown a dao at his father which missed him. His evidence also shows that on getting the information his father Dilip went out with a gun and at that time Budheswar who was standing on the road had thrown a dao at his father which missed him. His father again proceeded to the spot and was followed by Tapan and Rajib. Thereafter, Mintu, Bidyut Bikash Gogoi, Mukut Gogoi, Sanat Gogoi and Mantu Chawdang attacked his father with stone and dao as a result of which he fell down and when Rajib tried to save his father, the accused appellants assaulted Rajib with a dao from backside on his head due to which he fell down. Budheswar Ghatowar hit Tapan with dao on his neck and accused Sanjit @ Papi Gogoi assaulted Tapan on his stomach with a khukri. Accused Chitra Gogoi assaulted his father with a lathi. He had stated that due to assault all the 3 persons died. 27. From the sequence of events, it appears that PW 1 first arrived at the place of occurrence, who followed the deceased persons and saw the appellants mounting the assault on the deceased. PW 2 also arrived after hearing the commotion outside and saw the incident and implicated all the accused appellants. PW 3 followed her husband Tapan Konwar who went out after hearing the commotion outside and similarly PW 4 also went out immediately after hearing the hue and cry outside. PW 12 son of the deceased Dilip Konwar who was a minor at the time of occurrence was playing on the road and he followed his father who went out with a gun in his hand. From the evidence on record it is evident that their house is situated at a little distance away from the place of occurrence and their presence in the place of occurrence when the assault was made on the deceased cannot be doubted. They were members of the same family and they will be the first person to react and respond. Neighbours usually keep themselves away for fear of retaliation by the assailants and even if they see the occurrence they do not want to involve themselves by adducing evidence in the case, particularly, when the incident relates to a joint assault made by a group of persons leading to death of 3 persons. Neighbours usually keep themselves away for fear of retaliation by the assailants and even if they see the occurrence they do not want to involve themselves by adducing evidence in the case, particularly, when the incident relates to a joint assault made by a group of persons leading to death of 3 persons. Similar situation has emerged in the instant case and though several neighbours were examined by the Investigation Officer, none of them claimed to have seen the occurrence although majority of them admitted having noticed the dead bodies lying in the place of occurrence. In such a situation the only recourse available to the prosecution is to rely on the evidence of the close relatives. 28. In the instant case though the defence argued that the conviction, solely based on the evidence of PW 1 to PW 4 and PW 12, who are closely related to the deceased persons, cannot be sustained in the absence of corroboration from other independent witnesses but on a critical analysis of their evidence which remained mostly unshaken in cross examination and also corroborated by their previous statement recorded u/s 164 of the CrPC, we are of the firm view that their evidence cannot be eschewed even though they are relatives of the deceased. In addition to the evidence of the eye witnesses, medical evidence through the doctor also supports prosecution case. Learned Trial Judge also, in view of their relationship closely analyzed their statements and ultimately found that their evidence is clear, cogent and without considerable contradictions and in our view also it is not possible to discard the testimonies of the eye witnesses, merely on the ground that they are interested witnesses. It would be unreasonable to hold that the evidence given by the witnesses should be discarded only on the ground that they are related or interested witnesses and the only requirement is that their evidence is to be considered with great deal of circumspection and if the court is satisfied that they are reliable and trustworthy there is no legal impediment in convicting the accused appellants basing on their testimony. 29. It is argued by the learned counsels appearing for the appellants that as neither the informant nor any of the relatives of the deceased soon after the occurrence disclosed the names of the assailants to the Investigation Officer, the prosecution case becomes doubtful. 29. It is argued by the learned counsels appearing for the appellants that as neither the informant nor any of the relatives of the deceased soon after the occurrence disclosed the names of the assailants to the Investigation Officer, the prosecution case becomes doubtful. It is also argued that statements recorded u/s 164 of the CrPC of the witnesses are nothing but tutored version of the Investigation Officer and cannot be relied upon. As we have already discussed, the eye witnesses to the occurrence are wives and children of the deceased persons and the brutal murder took place before their eyes and they helplessly witnessed their husband/father being killed by the assailants. They remained as mute spectators and were in a state of shock and it cannot be expected from them at that time to disclose the names of the assailants and they were not even in a position to say anything regarding the occurrence. Non disclosure of the names of the assailants at the initial stage cannot be a ground to doubt the veracity of the prosecution case. 30. The plea of alibi has been taken by accused appellants Bidyut Bikash Gogoi, Sanat Gogoi, Arup Gogoi (since deceased), Hemanta Gogoi and Mantu Chawdang. It is a settled proposition that strict proof is necessary for establishing the plea of alibi. When the presence of the accused at the scene of crime has been established satisfactorily by the prosecution, normally, the court would be slow to believe any counter evidence to the effect that he was not present in the scene of the crime at the relevant time. The burden lies heavily on the accused to prove the plea of alibi and the learned Sessions Judge after threadbare discussion of the evidence of the defence witnesses rejected the plea of alibi and having considered the evidence on record we also concur with the findings of the learned Sessions Judge. The evidence of DW 1 is that on the date of incident he visited Naharani Hospital to meet Bidyut Bikash Gogoi and his brother. It was sought to be proved by him that Bidyut Bikash was in the hospital on that day but his evidence could not conclusively prove that the accused was in the hospital on that particular day and particular time. It was sought to be proved by him that Bidyut Bikash was in the hospital on that day but his evidence could not conclusively prove that the accused was in the hospital on that particular day and particular time. DW 2 is the doctor of the Naharani PHC and his evidence is that Sanat was admitted in the PHC as indoor patient on 10.04.2003 and was discharged on 16.04.2003 and he was under his supervision. The accused Arup (since deceased) was also admitted as an indoor patient on 17.03.2003 and was discharged on 24.04.2003. He produced the register of Naharani Hospital as per direction of the trial court but his evidence also reveals that patients in the hospital some time leave the hospital for a short period of time depending upon their health condition and he could not say if Sanat and Arup (since deceased) went out of the hospital for a short period of time on that day. DW 3 Sunil Gogoi, has adduced evidence on behalf of the accused Hemanta Gogoi and it was sought to be proved that Hemanta was not available in the place of occurrence on that day at the time of occurrence but he also could not conclusively prove the plea. DW 5 visited the Naharani Hospital to enquire about the health of Arup Gogoi, Bidyut Bikash Gogoi and Tirtha Gogoi but his evidence reveals that he left the hospital at about 10 am and he was accompanied by Mantu Chawdang but he could not say where Mantu had gone after he came to his house. 31. To prove the defence plea that Bazar people have killed the deceased persons, except giving suggestion the defence failed to substantiate the same and no effective cross examination was also done to discard the evidence of the eye witnesses. With regard to the plea of alibi, learned trial Judge has held that same is not acceptable at a belated stage and it was not conclusive that these persons were not present at the place of occurrence at the crucial point of time. Their evidence is totally vague and given in a cryptic manner which failed to prove that it was impossible on the part of the accused appellants to be present in the place of occurrence. Their evidence is totally vague and given in a cryptic manner which failed to prove that it was impossible on the part of the accused appellants to be present in the place of occurrence. Further, plea of alibi is always to be taken at the initial stage of the case and not at a belated stage. Not even a whisper or a suggestion was given to the witnesses that the accused persons were not present on that day and the defence plea was rejected by the learned trial Judge on this point. 32. Learned counsel appearing for the appellants also challenged the conviction on the ground that some of the appellants, who had not committed any overt act, cannot be held to be part of unlawful assembly and they cannot be said to have shared common object and constructive liability on all of them cannot be fastened. It is contended that there was long standing dispute regarding the Bazar between the family of the deceased and the villagers and about 35/40 persons gathered at the time of occurrence and all of them cannot be fastened with liability with the aid of Section 149 of the IPC. It is also argued that most of the appellants having not taken active part and some of them having not been named at all by the prosecution witnesses, the learned Sessions Judge committed grave error in passing the impugned judgment. 33. It is argued by referring to the decision of the Apex Court in the case of Eknath Ganpath Aher and Ors., vs. State of Maharashtra and Ors., reported in (2010) 6 SCC 519 and Nageswar vs. State of Chhattisgarh reported in (2014) 6 SCC 672 that in case of group rivalries there is a general tendency to rope in as many persons as possible as having participated in the assault and mere presence or association of other members alone does not per-se is sufficient to hold everyone of them criminally liable for the offences committed by others. The Apex Court in Eknath Aher (supra) observed that in case of group rivalry the courts are to be very cautious and must sift the evidence with care and after a close scrutiny of the evidence if a reasonable doubt arises in the mind of the court with regard to the participation of any of those who have been roped in, the court would be obliged to give the benefit of doubt to them. 34. Learned Addl. PP contends that the fact that all the accused appellants had attacked the deceased with deadly weapons and they had caused the death of 3 persons clearly goes to show that each one of them had the requisite common object. It is also contended that the prosecution witnesses having named all the accused appellants in the court there is no reason as to why their evidence should not be relied upon. 35. In view of the contentions raised, it would be apposite to refer to the provisions in the IPC for offences committed by large number of persons. Section 141 defines unlawful assembly to be an assembly of 5 or more persons having common object to commit any mischief or criminal trespass or other offences. Section 142 provides that whoever being aware of facts which rendered an assembly an unlawful one, intentionally joins the same would be a member thereof. Section 143 of the IPC provides for punishment of being a member of unlawful assembly. Section 149 of the IPC provides constructive liability on every person of unlawful assembly if an offence is committed by any member thereof in prosecution of common object of that assembly or such members of that assembly known to be likely to be committed in prosecution of that object. 36. The core question which arises for consideration is as to whether some of the accused appellants against whom no overt act has been attributed must be held to be a part of the unlawful assembly or shared a common object with the accused appellants against whom overt act has been attributed. 36. The core question which arises for consideration is as to whether some of the accused appellants against whom no overt act has been attributed must be held to be a part of the unlawful assembly or shared a common object with the accused appellants against whom overt act has been attributed. In Baladin vs. State of Uttar Pradesh reported in AIR 1956 SC 181 the Apex Court observed that to invoke the provision of Section 149 of the IPC it was necessary for the prosecution to lead evidence pointing to the conclusion that all the accused appellants before the court had done or been committing some overt act in prosecution of the common object of the unlawful assembly. The Apex Court in the aforesaid case further observed thus:-- “….the evidence as recorded is in general terms to the effect that all these persons and many more were the miscreants and were armed with deadly weapons, like guns, spears, pharsas, axes, lathis, etc. This kind of omnibus evidence naturally has to be very closely scrutinised in order to eliminate all chances of false or mistaken implication. That feelings were running high on both sides is beyond question. That the six male members who were done to death that morning found themselves trapped in the house of Mangal Singh has been found by the courts below on good evidence. We have, therefore, to examine the case of each individual accused to satisfy ourselves that mere spectators who had not joined the assembly and who were unaware of its motive had not been branded as members of the unlawful assembly which committed the dastardly crimes that morning. It has been found that the common object of the unlawful assembly was not only to kill the male members of the refugee families but also to destroy all evidence of those crimes. Thus even those who did something in connection with the carrying of the dead bodies or disposal of them by burning them as aforesaid must be taken to have been actuated by the common objective.” 37. The Apex Court, however, did not accept the observations of Baladin’s case (supra) as an absolute proportion of law and held that the observation was limited to the peculiar facts of the case. The Apex Court, however, did not accept the observations of Baladin’s case (supra) as an absolute proportion of law and held that the observation was limited to the peculiar facts of the case. In the case of Masalti and Ors., vs. State of U.P., reported in AIR 1965 SC 202 , the Apex Court while deliberating on the subject observed as follows:-- “……What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141, I.P.C. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of s. 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly….” 38. The principle of law laid down by the Apex Court in Masalti (supra) was not strictly adhered to in the later decisions and in some cases Apex Court convicted only the persons against whom overt act was alleged with the aid of Section 149 of the IPC to rule out the possibility of conviction of innocent persons who had no role to play in the incident. The Apex Court opined that in some cases rule of prudence should be applied and something more than their being cited as an accused. 39. Applying the principles of law laid down by the Apex Court to the facts of the present case what we have noticed is that the names of all the accused appellants were mentioned in Exbt.7 which was lodged after about 10 days of the occurrence on 25.04.2003. 39. Applying the principles of law laid down by the Apex Court to the facts of the present case what we have noticed is that the names of all the accused appellants were mentioned in Exbt.7 which was lodged after about 10 days of the occurrence on 25.04.2003. No names were disclosed by the informant who had given the first information verbally to police. In Exbt.8A, FIR, the names of only 8 persons were mentioned and PW 6 who lodged the FIR, while adducing evidence in court, stated that 25/30 persons were involved. Admittedly, he had not seen the occurrence and his evidence cannot be relied upon except that his 3 brothers were killed by the miscreants. The eye witnesses to the occurrence PW2 and PW3 made vague and omnibus statements that the accused appellants mounted the assault on the deceased as a result of which they died without attributing any overt act to any of the appellants. We are, therefore, of the view that doubt legitimately arises as regards the presence of all the appellants and/or sharing of common object with the accused appellants against whom overt acts had been attributed. We are not oblivious of the fact that atleast 35/40 persons assembled and the occurrence took place in broad day light. There was prior animus between the 2 groups which is apparent on the face of the record. In such circumstances we are to ensure that innocent onlookers do not suffer. We must also not lose sight of the fact that 3 members of the same family were butchered to death in the presence of their near and dear ones. 40. In this context we may reproduce the observation of the Apex Court in the case of Shahabuddin and Anr., vs. State of Assam reported in (2013) Cri.L.J. SC 1252 :--- “28. Where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The Courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the judge. Then alone can law and order be maintained. The Courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the Court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not sub-served. For truly attaining this object of a 'fair trial', the Court should leave no stone unturned to do justice and protect the interest of the society as well.” 41. Keeping in mind the above observations we have made an objective assessment of the evidence of the 5 eye witnesses to the occurrence. As we have noticed earlier, PW 2 and PW 3 have only given generalized allegations that all the accused appellants assaulted the deceased persons. PW1, PW4 and PW12 have attributed overt act to some of the appellants and although they stated that the other accused appellants were also present, on a critical analysis of the entire evidence and particularly, keeping in view the prior animus between the two groups we do not feel it safe to hold the appellants guilty against whom no overt act has been attributed. Their mere presence would not be a ground to rope them in the offences alleged. It is needless to say that mere presence of the persons at the scene of the offence itself would not be enough to convict them with the aid of Section 149 of the IPC, unless it is established that each one of them was part of the unlawful assembly and committed the offence in prosecution of the common object of that assembly. 42. In the instant case, the miscreants initially went to the house of Bhaskar Konwar, PW 6 and vandalized his house and set fire to his Ambassador car and thereafter they left that place. It appears from the evidence that while coming out of the house, on the road they encountered 3 deceased persons, one of whom was armed with gun. In the instant case, the miscreants initially went to the house of Bhaskar Konwar, PW 6 and vandalized his house and set fire to his Ambassador car and thereafter they left that place. It appears from the evidence that while coming out of the house, on the road they encountered 3 deceased persons, one of whom was armed with gun. It cannot be presumed that while coming out of the house of PW 6, the miscreants had any intention to assault the 3 deceased persons and the incident of assault took place suddenly. Under such facts and circumstances it is difficult to say that all the miscreants i.e., the accused appellants had common object to assault the deceased and in our considered view, sharing of common object by all the accused appellants has not been established. 43. In Sherey vs. State of Uttar Pradesh reported in (1991) SUPP (2) SCC 437 the Apex Court held that the Courts have to be very careful in case where general allegations are made against a large number of persons and the Courts should categorically scrutinize the evidence and hesitate to convict a large number of persons if the evidence available on record is vague. There must be reasonable circumstances which lend assurance to the story of the prosecution. In the instant case from the facts and circumstances we have doubt regarding membership of all the appellants of the unlawful assembly to hold all of them constructively liable for committing the murder of the 3 deceased persons. 44. It has come on record through the evidence of PW 4 and PW 12 that Sanjit Gogoi @ Papi, Mukut Gogoi, Budheswar Ghatowar, Sanat Gogoi, Bikash Chowdhury, Baba Choudhury, Arup Gogoi, Mintu Gogoi, Tuid Gogoi, Kushal Gogoi, Bidyut Bikash Gogoi, Mantu Chawdang, Mintu Gogoi, Chitra Gogoi, took part in the assault and overt act has been attributed to them. The common names disclosed by them are Sanjit Gogoi, Mukut Gogoi, Budheswar Ghatowar, Sanat Gogi, Mintu Gogoi. However, some of the names disclosed by PW 4 are not disclosed by PW 12 and it is not difficult to presume that this had happened due to time gap of arrival of the witnesses in the place of occurrence. The common names disclosed by them are Sanjit Gogoi, Mukut Gogoi, Budheswar Ghatowar, Sanat Gogi, Mintu Gogoi. However, some of the names disclosed by PW 4 are not disclosed by PW 12 and it is not difficult to presume that this had happened due to time gap of arrival of the witnesses in the place of occurrence. Although they claimed to have rushed to the scene together, that would not necessarily mean that they arrived also at the same time and there might have been a gap of 1/2 minutes in their time of arrival and due to this reason what was noticed by PW 1 was probably not noticed by PW 4 and PW 12. On careful scrutiny of the evidence, we have found that the eye witnesses PW 4 and PW 12 have given a consistent account of the incident and they not only saw the appellants named by them but also attributed overt act to some of them. They have stood satisfactorily in cross examination and defence virtually could not elicit anything from them while cross examining them. The evidence of these 2 witnesses mostly remained unshaken and inspire confidence. We do not find any reason to discredit their evidence even though they are relatives of the deceased and inimical towards the appellants. Had there been any intention on their part to rope in all the appellants, they could have done so by attributing overt act to all of them but they have not do so. Moreover, they would not shield the real culprits involved in the commission of the crime. Though in a case involving large number of offenders and a large number of victims it is usual to adopt the test that the conviction could be sustained only if it is supported by two, three or more witnesses who give a consistent account of the incident [Masalti (supra)], however, as abundant caution we are only considering the common names disclosed by both PW 4 and PW 12 and they are Mintu Gogoi, son of Parama Gogoi, Budheswar Ghatowar, Mukut Gogoi and Sanat Gogoi. The accused Sanjit Gogoi @ Papi was absconding at the time of pronouncement of the judgment by the learned Trial Judge and although he was also convicted along with the other appellants, no sentence was passed against him. The accused Sanjit Gogoi @ Papi was absconding at the time of pronouncement of the judgment by the learned Trial Judge and although he was also convicted along with the other appellants, no sentence was passed against him. Non-bailable warrant of arrest was issued by the learned Sessions Judge to secure his presence, but it appears from the case record that the same could not be executed. The matter is left to the learned Sessions Judge for proceeding against him in accordance with law. Since he has not preferred any appeal, there is no question of setting aside the conviction recorded by the learned Sessions Judge against him. 45. Plea of juvenility in respect of accused appellant Bikash Chowdhury has been taken during the trial and in view of the plea, age verification exercise was done through the Sessions Judge, Dibrugarh and eventually he was found to be juvenile and was released forthwith. Since he has nearly spent 3 years in jail, we do not consider it necessary to refer him to JJB at this stage. 46. In the facts and circumstances of the case and particularly having regard to the specific role attributed to the appellants Mintu Gogoi, son of Parama Gogoi, Budheswar Ghatowar, Mukut Gogoi and Sanat Gogoi, we only find them guilty u/s 302/149 of the Indian Penal Code and so far these appellants are concerned, the judgment of the learned Trial Court is affirmed and appeals preferred by them are dismissed. In respect of the other appellants, namely, Kushal Ch. Gogoi, Baba Choudhury, Suraj Gogoi, Mantu Chowdang, Santanu Gogoi, Titu Ruhi Das, Dulal Gogoi, Bidyut Bikash Gogoi and Hemanta Gogoi the appeals preferred by them are allowed. The judgment of the learned Sessions Judge is set aside so far these appellants are concerned and they be set at liberty forthwith. Bail bond, if any, stands discharged. 47. Send down the LCR forthwith.