JUDGMENT : A.K. Mishra, J. Appellants have preferred this appeal challenging their conviction U/s.302 read with section 149 of Indian Penal Code (in short the I.P.C.) and sentence to undergo life imprisonment passed by learned Addl. Sessions Judge, Kendrapara vide judgment dtd.11.10.1999 in S.T. No.41/433 of 1996. 2. Adumbrated in brief, prosecution case is that on 21.5.1995 at about 1.30 P.M. at Ketuapala Irrigation Embankment, deceased Rusi Sethi was attacked by accused persons and succumbed to injuries on way to hospital. In this regard, his son, informant (P.W.1), lodged an F.I.R. (Ext.1) in written on the next day at 8:30 A.M. It is alleged therein that the accused persons including the appellants, seventeen in numbers, on the occurrence day at morning approached their villagers violently and destroyed the building of one Ananta Kishore Das (D.W.2). Thereafter at about 9 A.M., deceased went to ascertain fact from Sarapancha Baidhar Naik. His son, informant, was following him. Near Panchayat office appellant – accused Rasananda Jena accosted others to kill the deceased. Accused Duryodhan dragged the deceased towards embankment. Accused Gugula dealt a Farsha blow to the right leg. Accused Baidhara dealt Bhujali blow to the left hand, accused persons Rajat and Ashok dealt kick blows putting him on the ground. The informant could not react as he was threatened by accused Naba. Thereafter he along with Rajendra, Niranjana and others took the deceased to Kantipur Government Hospital. Doctor referred the deceased to Jajpur Hospital, but on the way, near Binjharpur, he succumbed to his injuries. After returning, at 3 P.M. the F.I.R. was lodged at spot which was registered at Aul Police Station vide P.S. Case No.70 of 1995, corresponding to G.R. Case No.518 of 1995. In course of investigation the post mortem was conducted by doctor P.W.10 referring Binjharpur U.D. P.S. Case No.12 of 1995. The seized articles including one Farsha were dispatched for chemical examination. After completion of investigation charge-sheet was submitted by O.I.C. Sumanta Swain. The S.D.J.M., Kendrapara took cognizance. As one accused namely Mantua Naik had absconded, the case against him was split up. The case was committed to the Court of Addl. Sessions Judge, Kendrapara against eighteen accused persons who faced charge U/s.302 and 506 read with section 149 of I.P.C. On being asked, the accused persons pleaded not guilty and claimed trial. 3. The plea of defence is denial simplicitor. Prosecution examined 12 witnesses in all. The case was committed to the Court of Addl. Sessions Judge, Kendrapara against eighteen accused persons who faced charge U/s.302 and 506 read with section 149 of I.P.C. On being asked, the accused persons pleaded not guilty and claimed trial. 3. The plea of defence is denial simplicitor. Prosecution examined 12 witnesses in all. Defence examined three. P.W.1 is the informant and son of deceased. P.W.2 is also a son of deceased. P.W.10 is the doctor who conducted P.M. vide Ext.2. P.W.11 is a doctor who examined D.W.3 an injured. P.W.12 is the A.S.I. of police who proved the S.D. entry (Ext.4) as to the information received first at police station and formal F.I.R. Ext.1/4. The Investigating Officer Sumanta Kumar Swain is not examined for having expired. P.Ws.3, 4, 5, 6, 7, 8 and 9 are witnesses to the occurrence. P.Ws.3, 6, 7 & 9 have not stated anything about incident. P.Ws.1, 2, 6, 7 and 9 are declared hostile. The contradictions with regard to their statements recorded U/s.161 Cr.P.C. marked X, Y, Z and Z/1 could not be proved due to non-availability of the Investigating Officer. P.Ws.4, 5 and 8 are co-villagers and stated to have seen the occurrence. F.I.R., P.M. report, injury report of D.W.3 and the Station Diary Entry (earliest report by O.I.C.) are the four documents exhibited on behalf of prosecution. No material object is produced in the court during trial. Three witnesses are examined on behalf of defence out of whom D.W.1 is the tea stall owner near the spot. D.W.2 is the owner of the house which was destroyed in the morning for which incident the deceased was going to make query from Sarapanch. D.W.3 is the injured whose injury report is proved vide Ext.3. From the side of defence six documents, i.e., certified copy of the complaint petition and F.I.R. vide Ext.A to Ext.F are marked to prove prior enmity between the parties and with investigating officer-cum-O.I.C., Aul. 4. Learned Addl. Sessions Judge, relying upon the medical evidence, i.e, post mortem report and P.W.10, held that the death of deceased was homicidal in nature. Discarding the evidence of defence and denial by the informant and other witnesses, learned Addl. Sessions Judge held that the attack on deceased was due to political rivalry, and inimical relationship with three witnesses, i.e. P.W.4, 5 and 8 cannot be a ground to throw away their evidence. Discarding the evidence of defence and denial by the informant and other witnesses, learned Addl. Sessions Judge held that the attack on deceased was due to political rivalry, and inimical relationship with three witnesses, i.e. P.W.4, 5 and 8 cannot be a ground to throw away their evidence. Instead, he accepted the evidence of three witnesses i.e., P.W.4, 5 and 8 and held the six accused persons who are appellants guilty U/s.302, read with section 149 of I.P.C. and acquitted other twelve accused persons of all the charges. With regards to charge U/s.506 of I.P.C., learned Addl. Sessions Judge has mentioned that no separate sentence is passed but has failed to mention specifically as to conviction under it as mandated U/s.354(1)(c) of Cr.P.C. Because of this, for the purpose of this Appeal, all the accused persons are deemed to have been acquitted of the charge U/s.506 read with section 149 of I.P.C. 4-A. During pendency of appeal, on 31.8.2020 appellant Mantua Jena has filed an affidavit (also vide para 7 of the written argument) stating that appellant Rasananda Jena had expired in the year 2015. The fact is not disputed. Resultantly, appeal against appellant Rasananda Jena stands abated U/s.394(2) Cr.P.C. 5. Mr. S. K. Padhi, learned Sr. Counsel for appellants buttressed his argument raising the following points:- (i) The sons of deceased i.e. P.Ws.1 and 2 and brother of deceased P.W.7 are not expected to leave the real assailants and they having not whispered anything against the appellants, prosecution cannot be said to have proved through P.Ws.4, 5 and 8 who had inimical relationship for political rivalry. (ii) The informant son (P.W.1) having admitted to have lodged F.I.R. at the instance of police and Ext.F, certified copy of the complaint petition 1.CC Case No.69 of 1995, having unfolded the filing of a case by appellant Rasananda Jena against O.I.C. Sumanta Swain, the Investigating Officer, framing up of this case against the accused persons should not be disbelieved and the witnesses who are inimical to accused persons have come forward to advance the evil design of the investigating officer. (iii) For non-examination of Investigating Officer, the appellants are seriously prejudiced as the material contradictions are not proved. (iii) For non-examination of Investigating Officer, the appellants are seriously prejudiced as the material contradictions are not proved. When the weapon of offence is not produced in the court and chemical examination report is not proved, such prejudice has been augmented out of proportion and learned Lower court has committed error in not considering the same. In support of his contention, he relied on the decisions reported in (2020) 78 OCR – 206, Bhaskar Bariha Vrs. State of Orissa and (2020) 78 OCR – 190, Dusmanta Sethi Vrs. State of Orissa, (iv) Defence witnesses are not strangers. D.W.1 is the tea stall owner and D.Ws.2 and 3 were the charge sheet witnesses examined U/s.161 Cr.P.C. D.W.3 is the injured whose injury report is proved by prosecution vide Ext.3. Their evidence denying the occurrence should not have been discarded because defence witnesses are entitled to have equal treatment with those of prosecution. In support of this connection he relied upon a decision reported in VIII- 1988(2) CRIMES 938 , Uchhab Sahoo Vrs. State. (v) P.Ws.4, 8 and 5 of this case are subsequently examined as P.Ws.1, 2 and 3 respectively in the split up case S.T. Case No.3/39 of 2000 and they having retracted from their earlier statement admitting to have done so at the instance of the political party resulting acquittal of accused Mantu Naik vide judgment dtd.26.4.2002, it is unsafe to rely upon these three witnesses to convict the appellants. (vi) The presence of accused persons at the spot cannot be fastened with unlawful assembly as they had no common object. In support of this contention he relied upon a decision reported in (2020) 78 OCR -29, Kamarami Rama and Ors. Vrs. State of Orissa. 6. Per Contra, learned Addl. Government Advocate Mr. J. Katikia supported the judgment stating that when three eye witnesses have implicated the accused persons, learned Trial Court cannot be said to have mis-appreciated the evidence on record. It is contended that for the prior enmity and political rivalry the evidence cannot be thrown out and learned Trial Court after scrutiny, has rightly accepted the evidence of P.Ws.4, 5 and 8. He further argued that when the presence of Investigating Officer could not be procured due to his death, the accused persons cannot claim prejudice and defence witnesses who were gained over, cannot be considered reliable to disprove the case established by three eye witnesses. He further argued that when the presence of Investigating Officer could not be procured due to his death, the accused persons cannot claim prejudice and defence witnesses who were gained over, cannot be considered reliable to disprove the case established by three eye witnesses. It is also contended that non-production of weapon of offence which was seized, cannot be a ground to discard the eye witness version. 7. On survey of evidence of doctor P.W.10 and P.M. report Ext.2, it is clearly proved that deceased Rusi Sethi had met homicidal death on 21.5.1995 and he had sustained two anti-mortem injuries on left arm, one incised wound on the middle of right leg and one compound fracture of right tibia. As per doctor the death was resulted due to the incised wound on the middle of the right leg involving posterior tibial atery. The autopsy was conducted with reference to Binjharpur U.D. P.S. Case No.12 of 1995. No evidence in this connection is adduced by the prosecution. Further doctor found stitched wound in course of post mortem examination and prosecution has not explained as to where the deceased was given stitch on his wound. Fact remains proved that the death of deceased was homicidal in nature. 8. All the independent witnesses including the informant have not supported the prosecution except P.Ws.4, 5 and 8. Their reliability is challenged on the ground of enmity and political rivalry. Credibility of testimony depends upon the evaluation of the totality, not isolated scrutiny. Testimonies may suffer from some infirmity because of the projection through human memory. 9. In the case at hand the evidence of P.Ws.4, 5 and 8 are pitted against the evidence of near relatives of deceased like P.Ws.1, 2 and 7 and defence witnesses D.W.1, 2 & 3. While delving deep in to the totality of the prosecution arena, the prior enmity between the parties and litigation between appellant and Investigating Officer as well as non-production of weapon of offence in the trial are found influential factors to entrench the oral testimonies. F.I.R. (Ext.1) depicts a prior incident in the morning regarding damage to the house of D.W.2 which had prompted the deceased to ascertain facts from Sarapanch accused Baidhar Naik. Informant, P.W.1, has also mentioned therein to have seen the occurrence. But turning around, he testified to have lodged F.I.R. at the instance of investigating officer lending his signature. F.I.R. (Ext.1) depicts a prior incident in the morning regarding damage to the house of D.W.2 which had prompted the deceased to ascertain facts from Sarapanch accused Baidhar Naik. Informant, P.W.1, has also mentioned therein to have seen the occurrence. But turning around, he testified to have lodged F.I.R. at the instance of investigating officer lending his signature. The result is that the F.I.R. is disowned, so also the prosecution story of incident preceding the attack. At this juncture it may be seen that by Ext.F the defence has shown that the appellant Rasananda Jena had filed one case against O.I.C., Sumanta Swain on 27.4.1995 vide I.CC Case No.69 of 1995. For that it is contended by defence that police, in order to frame them up in this case, had got the F.I.R. lodged through P.W.1, the son of deceased. Had it not been so, the son would not have left the real culprit to escape. The prosecution has not clarified this stating non-availability of Investigating Officer. The very foundation of prosecution case is found to have been crumbled down for the son of the deceased who was none other than the informant. 10. Prior enmity and political rivalry between the parties are proved by P.Ws.4, 5 and 8. It is stated by P.W.4 that deceased Rusi belonged to Janata Party while he belonged to Congress Party and prior to the incident, there was a quarrel relating to M.L.A. Election. Further he has stated that accused Rasananda had threatened him for casting of vote for which he had lodged an F.I.R. P.W.5 has also stated that incident took place out of a dispute relating to Election. P.W.8 has admitted that both parties were not pulling well prior to the date of occurrence. So there is no dispute that parties were at logger heads and the three witnesses i.e., P.Ws.4, 5 and 8 were rival party members of accused persons. In this regard defence has filed certified copies of record in G.R. Case No.384 of 1998, 344 of 1995, 926 of 1991, 1.CC Case No.19 of 1996 and 1.CC Case No.20 of 1996 (Ext.A to Ext.E). Enmity is a double edged sword. It could be a ground for false implication and it could also be a ground of assault. The requirement of Law is that the testimony of inimical witness has to be considered with caution. Enmity is a double edged sword. It could be a ground for false implication and it could also be a ground of assault. The requirement of Law is that the testimony of inimical witness has to be considered with caution. If otherwise the witness is true and reliable, his testimony cannot be thrown out on the threshold. On this path, with abundant caution, the evidence of three witnesses i.e., P.Ws.4, 5 and 8 are read. They have all stated that more than 50 persons were present at the spot. P.W.4 stated that he was present near the tea stall and 40 to 50 persons had surrounded the deceased and the opposite side of River Kharashrota was situated at the distance of 60 cubits away from the place of occurrence. He had earlier stated in the examination-in-chief that accused Duryodhana had dragged the deceased towards opposite side of River Kharashrota. P.W.5 has stated that he was present at a distance of 20 cubits away from the gatherings of 100 persons and he was standing behind them. P.W.8 stated that at the time of incident he was standing at the top of river embankment and the boundary of Panchayata office and river embankment situated at a close distance. The incident took place inside the boundary of Panchayat office. The spot is magnified. It was in front of the Panchayat office, surrounded by a boundary. The deceased was dragged to the side of river embankment, about 50 persons had surrounded, the tea stall of D.W.1 was situated there. P.Ws.4 and 5 were behind the gathering. All the three witnesses have stated that Mantua Naik threw an arrow which hit the hand of Susanta Naik D.W.3. Now D.W.3 does not corroborate the same. With regard to injury on D.W.3 the doctor P.W.11 states that he found a penetrating wound which could be possible on fall on sharp edged metal. D.W.3 has stated that he sustained injury by fall from his bicycle. Thus the defence gets support from prosecution evidence. The situational fact persuades us to take a reasonable view that the fact initially projected about incident does not get support from the injured and relations of the deceased. The evidence of prosecution supports the defence version. The possibility of presence of three witnesses at the spot filled with a gathering of 50 more persons and to see the incident in picturesque manner is doubtful. The evidence of prosecution supports the defence version. The possibility of presence of three witnesses at the spot filled with a gathering of 50 more persons and to see the incident in picturesque manner is doubtful. When the relations like sons and brother are not coming forward to attribute fault to the appellants as real culprits of the murder of the deceased, it is unsafe to accept the testimony tainted with enmity and political rivalry whose credibility could not be tested for non-examination of investigating officer and non-production of the seized weapon. 11. There is no ground to discard the weight of the evidence of defence witnesses. Those witnesses were cited in the charge-sheet. In absence of any evidence that their wisdom was sullied by extraneous interference, the Court cannot discriminate them to brand “Out of Box” in comparison to prosecution witness. In Uchhab Sahoo case (supra) it is held that the defence witnesses are entitled to equal treatment with those of the prosecution and that the Courts must overcome their traditional and instinctive disbelief of the defence witnesses and that if it is true that the defence witnesses often tell lies, it must be appreciated that the prosecution witnesses are no exceptions. 12. It is true that I.O. could not be examined but as stated above he had litigating terms with one of the accused Rasananda Jena in 1.CC Case No.69 of 1995 filed earlier vide Ext.F. Informant P.W.1 stated that at the instance of police he signed in the F.I.R. The contradiction of P.Ws.6, 7 and 9 could not be proved for non-availability of the investigating officer. The defence can genuinely claim prejudice as lodging of F.I.R. at the instance of police is not clarified from the mouth of investigating officer. In the case of Bhaskar Bariha (supra) the effect of non-examination of Investigating Officer is dealt with at paragraph 12 as follows:- “12. Xxxxxxxx The examination of investigating officer in a criminal trial is not just a formality but very relevant and it is not just to prove the omissions and contradictions in the statements of witnesses examined by that officer but many important aspect of the prosecution case could be unearthed by examining such a witness. The investigating officer is the principal architect and executor of the entire investigation. The investigating officer is the principal architect and executor of the entire investigation. He is a crucial witness for the defence to question the honesty and caliber of the entire process of investigation. It will not only be beneficial to the prosecution but also to the defence and moreover it is very much necessary for the Court to arrive at a just decision of the case. However, non-examination of the investigating officer in every criminal case ipso facto does not discredit the prosecution version. Where there are material contradictions in the statements of the witnesses made in Court vis-à-vis before the investigating officer and on some vital aspect the investigating officer’s examination would throw light on the acceptability or otherwise of the prosecution version, a very valuable right accrues in favour of the accused to show that, the witnesses have made improvements or have given evidence that contradicts their earlier statements so that he would be able to satisfy the Court that the witnesses are not reliable. The non-examination of the investigating officer thus deprives the accused of the opportunity to bring before the Court the question of credibility of witnesses, by proving contradictions in the earlier statements and also on many other aspects. xxxxx xxxxx xxxxx” 13. The testimony of three witnesses i.e., P.Ws.4, 5 and 8 fails the test of reliability after severe scrutiny. Their evidence is intrinsically unreliable and the core of prosecution case is mechanically advanced only to crumble in the midst. The infirmities are sufficient to show that three witnesses P.Ws.4, 5 and 8 who had axe to grind against the appellants had availed this opportunity to rope the accused persons. Suffice to say that in absence of corroboration from situational facts it is hazardous to accept their testimonies. If the prosecution story as stated in F.I.R. is kept in view, the presence of accused persons at Panchayat office is natural and there being no material to infer common object, their presence in a gathering of more than 50 persons cannot render them liable U/s.149 of I.P.C. In this regard Hon’ble Apex Court in the decision reported in AIR 2019 SC 1831 , Amrika Bai Vrs. State of Chhattisgarh has observed as follows:- “12…… The law is well-settled on the aspect that mere presence in an unlawful assembly cannot render a person liable unless there was a common object, being one of those set out in Section 141 of I.P.C. and she was actuated by that common object. [See: Dani Singh Vrs. State of Bihar, (2004) 13 SCC 203 ]” 14. Now descending to the facts, it is apparent that defence witnesses on being given equal treatment gets support from the relation of the deceased including the informant and defence is highly prejudiced for non-availability of investigating officer and non-production of seized weapon and chemical examination report. The testimonies of P.Ws.4, 5 and 8 fall short to overcome the firewall of defence witnesses and near relations of deceased. The infirmity together with enmity and political rivalry creates a doubt. That doubt is not dispelled by the prosecution. Reliability is relegated to a tainted version to rope the accused persons. The appreciation made by learned Addl. Sessions Judge in respect of P.Ws.4, 5 and 8 is not acceptable and on independent analysis, which the appellate court is duty bound to consider, the same is found faulty. As a result the evidence of P.Ws.4, 5 and 8 cannot be the basis for conviction of the appellants. 15. At this juncture we may address the contention of learned Sr. counsel as to the subsequent testimony of P.Ws.4, 5 and 8 in a split up proceeding which was sought to be an additional evidence. By a detail reasoned order, the said prayer has been disallowed in Misc. Case No.348 of 2002. 16. Before parting, one procedural infirmity in recording evidence is felt to notice. The wrong use of the statement U/s.161 Cr.P.C. is found to have been adopted while recording testimony of D.Ws.2 and 3. The learned Trial Court has failed to kept the Law enunciated U/s.162 Cr.P.C. The statement recorded by police officer in course of investigation U/s.161 Cr.P.C. cannot be used in respect of defence witnesses. The oft quoted judgment of Hon’ble Supreme Court on this point is Tahsildar Singh and Anr. Vrs. The learned Trial Court has failed to kept the Law enunciated U/s.162 Cr.P.C. The statement recorded by police officer in course of investigation U/s.161 Cr.P.C. cannot be used in respect of defence witnesses. The oft quoted judgment of Hon’ble Supreme Court on this point is Tahsildar Singh and Anr. Vrs. The State of Uttar Pradesh, 1959 AIR 1012 wherein it is enunciated that:- “At the same time, it being the earliest record of the statement of a witness soon after the incident, any contradiction found therein would be of immense help to an accused to discredit the testimony of a witness making the statement. The section was, therefore, conceived in an attempt to find a happy via media, namely, while it enacts an absolute bar against the statement made before a police-officer being used for any purpose whatsoever, it enables the accused to rely upon it for a limited purpose of contradicting a witness in the manner provided by s.145 of the Evidence Act by drawing his attention to parts of the statement intended for contradiction. It cannot be used for corroboration of a prosecution or a defence witness or even a Court witness. Nor can it be used for contradicting a defence or a Court witness. Shortly stated, there is a general bar against its use subject to a limited exception in the interest of the accused, and the exception cannot obviously be used to cross the bar.” 17. In the wake of above, it is not safe to base conviction on the version of P.Ws.4, 5 and 8 and for that the conviction of appellants cannot be sustained. The conviction is to be set aside and the appellants are to be acquitted. 18. In the result the appeal is allowed. The conviction and sentence of appellants vide judgment dtd.11.10.1999 by learned Addl. Sessions judge, Kendrapara in S.T. Case No.41/433 of 1996 is hereby set aside and appellants are acquitted therefrom. The appeal against appellant Rasananda being abated and other appellants being on bail, the bail bonds be discharged. Send back the L.C.Rs. forthwith. Sanju Panda, J. - I agree