The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.283 of 2012 (An appeal U/S. 374(2) of the Code of Criminal Procedure against the judgment passed by Shri Sovan Kumar Dash, Ad hoc Additional Sessions Judge, Fast Track Court No.1, Phulbani in S.T. No.260/08(A) of 2010- 2011 corresponding to G.R. Case No. 206 of 2008, arising out of Raikia PS Case No. 53 of 2008 of the Court of learned JMFC, G.Udayagiri) Kartik Parimanik State of Orissa … -versus- … Appellant Respondent For Appellant : For Respondent: Mr. A.P.Bose, Advocate Mr. G.N.Rout, ASC. CORAM: HON’BLE MR. JUSTICE D. DASH HON’BLE MR. JUSTICE G. SATAPATHY DATE OF HEARING :29.02.2024 DATE OF JUDGMENT:21.05.2024 G. Satapathy, J. 1. This is an appeal U/S. 374(2) of the Code of Criminal Procedure, 1973 (in short, “Cr.P.C.”) by the Appellant-Convict challenging the judgment dated 24.03.2012 passed by learned Adhoc Additional Sessions Judge, Fast Track Court No.1, Phulbani in S.T. Case No. 260/08(A) of 2010-2011 by which the CRLA No.283 of 2012 Page 1 of 34 Appellant was convicted for commission of offences punishable U/Ss. 147,148 & 436 read with Section 149 of IPC and for offences U/Ss. 302/201 read with Section 34 of IPC and accordingly, he was sentenced to undergo, imprisonment for life and to pay fine of Rs.5,000/-, in default whereof, to undergo Rigorous Imprisonment(RI) for further six months for offence U/Ss. 302/34 of IPC; R.I. for three years and to pay a fine of Rs.3,000/-, in default whereof, to undergo RI for further three months for offence U/Ss. 201/34 of IPC; RI for five years and to pay a fine of Rs.2,000/-, in default whereof, to undergo RI for further three months for offence U/Ss. 436/149 of IPC; RI for two years for offence U/S. 148 of IPC and RI for one year for offence U/S. 147 of IPC with stipulation of all the substantive sentences to run concurrently. 2. Be briefly stated the prosecution case is, on 25.08.2008 in the evening, a mob consisting of hundred of persons ransacked the house of PW1 Naresh Digal in village Dakerpanga without any reason by resorting to arsoning, but when the mob attempted to CRLA No.283 of 2012 Page 2 of 34 attack, he(PW1) along with his family members ran away to save their life, however, the convict Kartik Paramanik, the in-charge-Headmaster, Luhuringia Primary School and his associates killed the deceased Ramesh Chandra Digal, the younger brother of PW1 by chasing and assaulting him with tangia(axe) in village Budamaha. 2.1 On the next day on 26.08.2008 at about 5 P.M, PW1 lodged an FIR (Ext.1) against the convict Kartik Parimanik and hundred others before the OIC, Raikia P.S-B.K.Mahapatra by stating therein that the dead body of his younger brother Ramesh Chandra Digal is lying dead in the village Budamaha under Mandakia Grama Panchayat. 2.2
Facts
On receipt of the FIR, the OIC registered Raikia P.S. Case No. 53 of 2008 for offence punishable U/Ss. 147/148/427/437/302/149 of IPC and directed SI of police P.W.7 S.B Jena to investigate the case. 2.3 In the course of investigation, PW7 examined the informant and witnesses, but could not reach to the spot on that day of lodging of FIR due to blockage of CRLA No.283 of 2012 Page 3 of 34 the road on account of riot and violence and on 29.08.2008, he (PW7) visited the spot in village Panganaju and found the dead body of the deceased already burnt in front of the house of Esai Pradhan and seized some burnt bones from the spot under seizure list Ext.2. PW7 also visited the second spot at Budamaha Chowk where the deceased was killed. On 30.08.2008, PW7 visited the spot house of the deceased in village Dakerapanga and seized some ash in presence of some seizure witness under Ext.3. PW7 also sent the seized materials to SFSL, Bhubaneswar for chemical examination under a forwarding letter of learned JMFC, G.Udayagiri under Ext.7. PW7 then handed over the charge of investigation to IIC PW8- Rabinarayan Barik who submitted charge sheet against the convict and others for commission of offences punishable U/Ss.147/ 148/ 341/427/436/302/201/149 of IPC by showing the convict as an absconder. 2.4 Subsequently, the convict was arrested on the strength of an NBW/A issued against him and the case was committed to the Court of Sessions. That is how CRLA No.283 of 2012 Page 4 of 34 the trial commenced against the convict by framing charge for commission of offences U/Ss. 436/302/201 read with Section 149 of IPC and Sections 147/148 of IPC, when the convict pleaded for his innocence. 3. In support of the charge, the prosecution examined altogether eight witnesses and proved equal number of documents under Exts. 1 to 8 as against the oral evidence of seven witnesses vide DWs. 1 to 7 and documentary evidence Exts. A to F. Of the prosecution witnesses, PW1 is the informant; PW2 is the wife of the informant; PW3 is an independent witness; PW4 is the sister of deceased; PW5 is the nephew of deceased; PW6 is wife of the deceased, whereas PWs. 7 & 8 are the IOs. On the other hand, DW1 is the Accountant of Utkal Gramya Bank, Raikia; DW2 is the SI of Schools, Raikia Block; DW3 is the Headmaster of Lahuringia Primary School; DWs4 & 7 are the President and Member of village Education Committee; DW5 is the Branch Manager of SBI Pauria Branch and lastly, DW6 is the WEO, Raikia Block. CRLA No.283 of 2012 Page 5 of 34 4. The plea of the convict in the course of trial was denial simplictor and false implication on account of previous grudge. In addition, the convict had also taken a plea in his statement U/S. 313 of Cr.P.C. that the deceased was working as a cook at Lahuringia Primary School, where he was working as Headmaster and in the month of March and April, 2008, the deceased had committed theft of rice from the school hostel and he(convict) accordingly, convened a meeting of the Village Education Committee, where the deceased was found guilty and the matter was reported to higher authority and accordingly, the deceased was transferred from the school for the above reason. The deceased and his brother were not pulling on well with him and on 23.08.2008, the informant (PW1) had given threatening to kill him and he(convict) could not be allowed to stay in the village due to above enmity and a false case has been foisted against him. 5. After appreciating the evidence on record upon hearing the parties, the learned trial Court by the impugned judgment of conviction convicted the CRLA No.283 of 2012 Page 6 of 34 Appellant by mainly relying upon the evidence of eye witness PWs. 1, 4,5 & 6. 6. In assailing the impugned judgment of
Legal Reasoning
of the IPC, there is no dispute with regard to the settled position of law that when a person is charged with the aid of the provision of 149 of the IPC, the prosecution has to prove the following ingredients by convincing and credible evidence: - (i) there was an unlawful assembly; (ii) the accused was part of such unlawful assembly; (iii) he shared the common object of such unlawful assembly & (iv) he being the member of the unlawful assembly, knew the offences likely to be committed in prosecution of the common object of such unlawful assembly. It is also very clear that mere presence of the accused may bring his liability with the aid of the Section 149 of IPC provided, it is to be established by CRLA No.283 of 2012 Page 25 of 34 the evidence that the accused must have a common object as that of the unlawful assembly, but the “common object” has not been defined in this statute, however, it can be inferred from the behavior and conduct of the accused and members of unlawful assembly as well as it can be gathered from the circumstance of transaction. At the same time, mere presence of a person at the place of occurrence where the members of an unlawful assembly have gathered for carrying out of their illegal common object does not incriminate such persons, since such person is neither proved to be a member of unlawful assembly nor does he share the common object of such unlawful assembly. Keeping in view the aforesaid principle, when the evidence of prosecution is evaluated, neither any specific role has been attributed to the convict nor has it been established by the convincing evidence that the convict was a member of such unlawful assembly nor was he having any common object as that of unlawful assembly. It is, of course, true that the witnesses have stated the convict to have inflicted axe blow on the CRLA No.283 of 2012 Page 26 of 34 right leg of the deceased, but the same having been contradicted by the defence and not being found acceptable, there remains no evidence to infer that the convict was a member of unlawful assembly and he shared common object with the mob to commit riots and kill others, especially when P.W.1 has stated in his cross-examination that none had tried to assault them near their house at Dakerpanga and none had admittedly chased to assault them at the place of occurrence at Budamaha. Further, on minute scrutiny of evidence, it appears that P.W.1 has stated that when they reached near Budamaha square, the accused- Kartik Parmanik assaulted his brother Ramesh (deceased) with one axe on his right leg chasing him behind and after killing of his brother, around 36 accused persons whose names were stated by P.W.1 dragged his dead body of the deceased towards village Panganaju, but these two important pieces of evidence have been successfully contradicted by the defence. Similarly, P.Ws.5 & 6 although disbelieved by this Court to be the eye witness to the occurrence, however, has CRLA No.283 of 2012 Page 27 of 34 stated about convict-Karitk Paramanik assaulting the deceased with one tangia over his right leg, but again the same was contradicted by the defence and after taking away these materials evidence out of the purview of consideration, the prosecution is left with no evidence to infer the guilt of the accused for any offence. 17. The convict has, however, been convicted for offence U/Ss. 436/149 of the IPC, 302/34 of IPC and 201/34 of IPC, but the “common object” as required in Sec. 149 of IPC is conceptually distinguished and different from the “common intention” in Sec. 34 of IPC, as in the former case, mere presence without participation in the crime would render the accused liable for the offence committed by unlawful assembly, but in later case participation in the crime is mandatory requirement to make the accused liable. For the liability of the convict for offence U/Ss. 302/34 and 201/34 of IPC, his participation in the crime is statutorily required to be proved beyond all reasonable doubt through convincing and reliable evidence, but after sieving the CRLA No.283 of 2012 Page 28 of 34 contradictions found in the evidence of witnesses, participation of the Appellant in the crime is not forthcoming and whatever evidence surfaces against the Appellant for these offences appears to be insignificant and doubtful and, therefore, such doubtful evidence cannot be used against the Appellant. Further, no evidence whatsoever is forthcoming with regard to Appellant sharing any common object with the mob for destroying the house of PW1 in village Dakearpanga and, therefore, the conviction of the Appellant for offence U/Ss. 436/149 of IPC appears to be not maintainable. 18. In the course of argument, it has been advanced by the learned counsel for the Appellant that the same trial Court on analysis of evidence of same set of so-called eye witnesses has passed judgment in three separate cases in S.T. Case Nos. 41 of 2013, S.T. Case No. 46 of 2013 & S.T. Case No.54 of 2013, copies of which are marked as Ext. G to J for the Appellant, acquitting all the accused persons therein. Therefore, the same may also be considered to disbelieve the CRLA No.283 of 2012 Page 29 of 34 evidence of so-called eye witnesses who having then not stated nor without any explanation as to their prior silence are coming forward to say all these happenings and thus, they assert to be the fate decider of the accused persons as per their desire and whims. On this point, this Court believes that there cannot be any presumption or assumption that everything was identical in all these cases and this Court is also handicapped to have not the privilege to see the evidence in these cases, but law is fairly well settled that evidence of one trial cannot be read as evidence in another case in a separate trial and the evidence in one case cannot be used for any of the accused in a separate trial. In other words, the synthesis of above proposition drives this Court to observe that evidence recorded in a criminal trial against any accused is confined to the culpability of that accused only and it does not have any bearing upon a co-accused, who have been tried on the basis of evidence recorded in separate trial, though for the commission of same offences charged has been framed in both the trial. CRLA No.283 of 2012 Page 30 of 34 Hence, the contention raised for the Appellant bears no merit. The aforesaid judgments under Ext. G to J cannot be looked into while appreciating the evidence in the present case. Be that as it may, the same provide some ideas as to the contact of witnesses whose evidence have already been discussed in great detail. 19. From a cumulative assessment of evidence of prosecution witnesses, there appears no evidence at all to indicate that the mob had ever tried to assault the deceased or his family members at village Dakerpanga where the house of the informant was destroyed. It is also quite obvious that had there been any intention on the part of the convict to attack and assault the deceased and his family members, he could have joined the mob destroying the house of the informant at village Dakerpanga and could have assaulted the deceased or the other family members of PW1. On the contrary, neither any specific evidence has been brought or led by the prosecution to indicate that the convict had destroyed the house of the informant nor is CRLA No.283 of 2012 Page 31 of 34 there any evidence to indicate that the convict has shared any common object with the mob to destroy the house of the informant at village Dakerpanga. It is also not understood as to how the same mob had left other family members of PW1 to go unhurt nor even attempted to assault or hurt them. In the aforesaid situation, on analysis of oral and documentary evidence on record, there appears that the prosecution case against the convict appears to be doubtful and the evidence of the witnesses are shrouded with suspicion and no clear and clinching evidence is forthcoming to maintain the conviction of the Appellant as recorded by the learned trial Court. Further, the evidence of prosecution is not upto the standard to hold the convict guilty of the offences with aid of Section 149 or 34 of the IPC, since the prosecution has not been able to establish that the convict was a member of unlawful assembly as that of the mob nor had he the common object of such mob nor had he shared the common intention of the mob to kill the deceased. On contrary, learned trial Court has failed to notice the CRLA No.283 of 2012 Page 32 of 34 contradictions as available in the evidence of eye witnesses and it could not distinguish the evidence of other so called eye witnesses P.Ws. 5 & 6, so also it has failed to take note of the delayed examination of the eye witnesses and re-examination of P.W.1 after eleven days of the occurrence. Further, the improvements made by P.W.1 in his subsequent statement before PW7 have gone unnoticed in the impugned judgment. In such situation and circumstance, this Court considers that benefit of doubt must go to Convict-Appellant, who has a fundamental right not to be convicted on suspicion or surmise, unless his guilt is proved beyond all reasonable doubt. 20. In the result, the appeal succeeds and is allowed on contest, but no order as to costs. Consequently, the impugned judgment of conviction and order of sentence dated 24.03.2012 passed by the learned Ad-hoc Additional Sessions Judge, Fast Track Court No.1, Phulbani in S.T. Case No. 260/08(A) of 2010-2011 are hereby set aside. CRLA No.283 of 2012 Page 33 of 34 21. Since the Appellant has been directed to be released on bail by an order of this Court passed on 01.07.2014 in Misc. Case No. 740 of 2012, he be discharged of his bail bonds upon appeal. (G. Satapathy) Judge D.Dash, J. I Agree (D.Dash) Judge Orissa High Court, Cuttack, Dated the 21st day of May, 2024/Kishore Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 21-May-2024 14:25:27 CRLA No.283 of 2012 Page 34 of 34
Arguments
conviction, Mr.A.P.Bose, learned counsel for the appellant has submitted that although there is material contradictions in the evidence of eye witnesses, but ignoring such material contradictions, the learned trial Court has accepted the evidence of PWs. 1 & 4, who are highly interested witnesses. Mr.Bose by further drawing attention of the Court to the additional evidence i.e. photocopy of certified copy of judgments passed in ST Case Nos. 41 of 2013, 46 of 2013 and 54 of 2013 which are marked as EXts. G to J, has submitted that the learned trial Court has earlier disbelieved the evidence of so-called eye witnesses in the trial of aforesaid cases and acquitted the co- accused persons, but on the same set of exact evidence, the trial Court has accepted the same evidence and convicted the present Appellant without assigning any reason and thereby, the conviction of the Appellant itself is unsustainable in the eye of law. It is CRLA No.283 of 2012 Page 7 of 34 further submitted by Mr.Bose that the evidence of so called eye witnesses are contradictory to each other and they were also being contradicted by the defence on material aspects of the case, such as the convict assaulting the deceased by means of an axe which was an improvement made by the so called eye witnesses in their subsequent statement recorded U/S. 161 of Cr.P.C. and therefore, the evidence “convict giving blows to the deceased by means of an axe” is wholly an improvement not only made by the informant, but also by the eye witnesses in their testimony, but the fact remains that neither the informant nor the eye witnesses have ever stated in the FIR and in their previous statement recorded U/S. 161 of Cr.P.C. that the convict gave blow to the deceased by means of an axe and if this evidence is taken out of the purview of consideration, there would remain no evidence attributing any role to the convict in the occurrence. In summing up his argument, Mr.Bose has prayed to allow the appeal and acquit the Appellant of the charge by CRLA No.283 of 2012 Page 8 of 34 setting aside the impugned judgment of conviction and sentence. 7. On the other hand, Mr.G.N.Rout, learned ASC has, however, submitted that the judgment passed by the learned trial Court in the trial of co-accused persons is wholly irrelevant for the trial of the convict in the present case, although some of the co-accused persons have been acquitted in the earlier trial in this case, but the Appellant having not faced the trial in those cases, the evidence/judgments in such cases cannot be taken into consideration in this case because the role of each of the offender has to be assessed independently by taking into account the evidence led by the prosecution in each cases and the witnesses examined in earlier cases might not have attributed any role to co-accused persons in the trial which results in their acquittal, but in the present case, the eye witnesses having vividly described the role played by the convict whose name in addition to this evidence also finds place in the FIR and thereby, the convict being situated differently and the accusation having established against him by the CRLA No.283 of 2012 Page 9 of 34 prosecution beyond all reasonable doubt, the conviction of the Appellant cannot be faulted with. Mr.Rout by taking this Court through the evidence of eye witnesses has submitted that the guilt of the convict has been well established beyond all reasonable doubt by the prosecution and thereby, the conviction of the appellant warrants no interference in this appeal. In summing up his argument, Mr.Rout has prayed to dismiss the appeal. 8. After having bestowed anxious and careful consideration to the rival submissions upon perusal of record by extensively going through the evidence adduced by both the parties, this Court finds the learned trial Court to have convicted the Appellant by believing the evidence of eye witnesses PWs.1,4,5 and 6, but the fact remains that admittedly the dead body of the deceased was neither found nor recovered, rather PW7, the IO seized some bone ashes and charcoal etc. from the place in front of the house of the Esai Pradhan at Panganaju which was sent to SFSL, Rasulgarh for chemical examination under Ext.7 which CRLA No.283 of 2012 Page 10 of 34 is the copy of forwarding letter to evidence sending of those items for chemical examination, but the CE report under Ext.8 discloses that no opinion could be furnished as the article sent to SFSL were found completely burnt losing identifying characters. In the above broad backdrop, the sustainability of the conviction of the Appellant has to be examined, since the convict is in appeal against his conviction. Further, the Appellant has been convicted for offences U/Ss. 147,148, 436/149,302/34 and 201/34 of IPC, although the convict was not charged for the offences r/w 34 of IPC. 9. Admittedly the prosecution case is that after killing the deceased-Ramesh Digal, the mob set fire to the dead body of the deceased to cause disappearance of the evidence of murder and as a consequence thereof, no dead body of the deceased was recovered in this case, but the question before this Court is that in absence of corpus delicti, any conclusion of homicidal death of the deceased can be arrived at. It is no more res-integra that in absence of corpus delicti, a case of murder can be well established, provided that the CRLA No.283 of 2012 Page 11 of 34 charge of murder against the offender has to be proved as a “fact in issue” like other facts beyond all reasonable doubt. In other words, in order to hold a person guilty of the charge of murder, it is not essential that the corpus delicti must be found, since death of the deceased is to be established like any other facts and if the evidence on record establishes beyond reasonable doubt that within all human probability, the deceased was found murdered. Thus, in a case of murder, the corpus delicti has to be established like any other facts. Evaluating the evidence on record, it is found that P.Ws.1, 4, 5 & 6 have clearly stated in their evidence that the deceased was assaulted to death by the mob and his dead body was burnt. A careful scrutiny of the evidence of these four witnesses, nowhere the defence has challenged the death of the deceased; rather the defence has only disputed the involvement of the Appellant in executing the crime. In view of the aforesaid evidence, this Court considers that the deceased had suffered death at the hands of the mob, no matter in CE report the opinion as to the CRLA No.283 of 2012 Page 12 of 34 remnants recovered from the spot, where dead body of deceased was claimed to be burnt, could not be formed to be of a burnt person, which could not be opined by the Expert. 10. Before making any discussions with regard to the involvement of the Appellant, this Court considers it appropriate to state that according to the prosecution case, there are three place of occurrences; firstly, at Dakerpanga, where the mob committed mischief by fire destroying the house of the informant and his family members; secondly, at Budamaha, where the commission of the murder of the deceased took place and thirdly, at Panganaju, where the dead body of the deceased was consigned to the flames. While scrutinizing the evidence to find out the involvement of the Appellant in this case, it appears that P.W.1 has lodged the F.I.R. under Ext.1 to set the law into motion on 26.08.2008, but P.Ws.1 & 4 have been cited as the witness to the occurrence in FIR-Ext.1, which has also been admitted by P.W.1 in his evidence at paragraph- 20 of his cross-examination that in the F.I.R, he has CRLA No.283 of 2012 Page 13 of 34 mentioned himself and his sister as witness to the occurrence which also finds support from the evidence of the I.O.-cum-P.W.7, who has stated in paragraph-15 of his cross-examination that in the F.I.R., P.W.1 has mentioned that the witnesses to the occurrence were Rupina Digal-P.W.4 and himself-P.W.1. Despite these facts, the prosecution has examined P.Ws. 5 & 6 as eye witnesses to the occurrence. It is, however, true that F.I.R. is not the encyclopedia of the entire facts minutely describing each event linked to the occurrence and names of all the witnesses, but certainly a suspicion would arise in a situation like this, when the informant has himself stated the names of the witness in the F.I.R. leaving two persons, who are also the witness to the occurrence, since it is the natural conduct of a person, who has included the name of two persons as the witness to the occurrence in the F.I.R would not normally omit to mention the names of other two persons, who are also the witness to the occurrence. Had P.Ws. 5 & 6 witnessed the occurrence, normally P.W.1 would not have omitted to state their CRLA No.283 of 2012 Page 14 of 34 names in Ext.1 which is not a minor matter. This Court, therefore, would like to scrutinize the evidence of P.Ws.5 & 6 with great care and circumspection while appreciating their evidence. 11. In appreciating the evidence of P.Ws. 5 & 6, it appears that P.W.5 has stated in his examination in chief that at Budamaha Ashram Chhaka, the accused- Kartik Paramanik assaulted his maternal uncle Ramesh (deceased) with one Tangia over his right leg, but he was validly contradicted for such piece of statement in the Court by drawing his attention to his previous statement in his cross-examination and getting it confirmed by P.W.7 that P.W.5-Pranaya Kumar Pradhan has not stated before him that the accused assaulted his maternal uncle with the weapon of axe. Similarly, P.W.6 was also contradicted by the defence, when she admitted in cross-examination that she does not remember whether she has stated before the Police that the accused assaulted her husband over his right leg with one axe. The contradiction in evidence of these two witnesses as above, however, assumes significance CRLA No.283 of 2012 Page 15 of 34 in view of the fact that although these witnesses were available for examination from the time of occurrence and thereafter, but the I.O.-cum-P.W.7 examined them on 30.08.2008 and there was no explanation offered by the prosecution for the belated examination of P.Ws. 5 & 6. Further, P.W.1 has admitted in paragraph-20 of his cross-examination that his mother, sister-P.W.4 and nephew-P.W.5 were present at his house on the day of lodging of F.I.R. under Ext.1, but the statement of PWs 5 and 6 were recorded by the I.O. on 30.08.2008, even if it is forthcoming from the evidence of P.Ws. 1 & 7 that P.W.1 had met PW7 (IO) twice after lodging of F.I.R. i.e. on 29.08.2008 and 30.08.2008 as well as on 26.08.2008. However, no explanation was offered by the I.O. as to why he examined PWs 5 and 6 belatedly and recorded their statements only on 30.08.2008, whereas he examined and recorded the statement of PWs 1 and 4 on the very same day of lodging of FIR on 26.08.2008. 12. In the above circumstances, this Court is not in a position to accept that P.Ws. 5 & 6 had seen the CRLA No.283 of 2012 Page 16 of 34 occurrence and were the eye witnesses to the occurrence, especially when their evidence has been contradicted by the defence on material points, so also their presence is not believable at the spot, since it is unnatural to accept that the mob will only chase one person leaving the other family members without any motive or reason because the occurrence took place in a religious riot and in such situation, the rioters would not normally leave anyone of the other community/religion to go scot free unhurt or leave them at least without attempting to attack or chase them. 13. Moving on to re-appreciate the evidence of P.Ws. 1 to 4, who claim to be the eye witnesses to the occurrence, it appears that PW1 has lodged the FIR stating him and PW4 as witness to the occurrence. Elaborating the evidence of P.W.1, it appears that he has stated in his evidence that on 25.08.2008, he along with his brother-Ramesh(deceased) and his deceased brother’s wife Renuma Nayak (PW6) went to his native village Dakerpanga to see the conditions of their family CRLA No.283 of 2012 Page 17 of 34 members and arrived there at about 4 P.M. and saw his family members under fear. Few minutes thereafter, a mob led by convict-Kartik Paramanik being armed with axe reached there and when the mob came near to their house, they escaped from the place and came to the road. It is his further evidence that the mob destroyed their dwelling house and set fire to the same and seeing the occurrence, they left the house and went towards Raikia Chhaka, but the accused Kartik assaulted his brother Ramesh with an axe over his right leg by chasing him from behind and thereafter, P.W.1 stated the names of host of assailants, who had assaulted his deceased-brother with the weapons like kati, axe, thenga, which according to him resulted the death of the deceased at the spot, but the evidence of PW1 further transpires that he could not recognize other persons of the mob and after killing the deceased, the said persons dragged the dead body of the deceased towards village Panganaju, however, in his cross-examination, he has specifically admitted that he had not mentioned the names of the persons, who CRLA No.283 of 2012 Page 18 of 34 had destroyed his house by setting it on fire. Further, in order to contradict P.W.1 with respect to convict-Kartik Paramanik assaulting his brother-Ramesh with an axe over his right leg by chasing him from behind, the defence has invited his attention to his previous statement and unsuccessfully suggested this part of the statement to PW1, but the I.O.-P.W.7 in his cross- examination has admitted that P.W.1 has not stated before him during recording of his subsequent statement on 05.10.2008 that the accused-Kartik Paramanik assaulted the deceased-Ramesh with an axe over his right leg by chasing him from behind, but in his earlier statement recorded on 26.08.2008, P.W.1 has stated before him that Kartik Paramanik assaulted his brother Ramesh over his right leg by chasing him from behind. In such situation, when the facts stated in the F.I.R. is considered, it appears that P.W.1 has lodged F.I.R. stating therein that the convict-Kartik Paramanik and his associate had killed the deceased inflicting axe blows by chasing. It, thus, becomes so that “Kartik Paramanik and his associates” cannot be CRLA No.283 of 2012 Page 19 of 34 taken as same as “only Kartik Paramanik” and the meaning of “Kartik Paramanik and his associates” had killed the deceased by chasing and assaulting him with an axe, which only has been stated in Ext.1, is exactly not the same meaning of “Kartik assaulted the deceased with one axe over his right leg by chasing him behind”. Further, P.W.7 has not explained as to why the statement of Kartik Paramanik was re-recorded on 05.09.2008, when his earlier statement was recorded on 26.08.2008. Further, there is improvement of the statement of P.W.1 in his subsequent statement. Moreover, the I.O.-P.W.7 has not explained as to why there was requirement of re-examination of P.W.1 which is forthcoming from paragraph-18 of his cross- examination that he has not ascertained any reason from him (P.W.1) while recording his statement afresh on that day. It is also elicited from the mouth of P.W.7 in paragraph-20 of his cross-examination that P.W.1- Naresh has not specifically stated before him on 26.08.2008 that accused Kartik Paramanik assaulted his brother Ramesh (deceased) with a tangia over his CRLA No.283 of 2012 Page 20 of 34 right leg and the mob dragged the dead body of his brother towards village Panganaju. Thus, this Court is quite convinced to accept that the evidence of P.W.1 has been squarely contradicted by the defence on material fact of “convict dealing blows on the leg of the deceased by an axe” or “mob dragging the dead body to village Panganaju”, which is a different place from Dakerpanga where the deceased was stated to have been killed by the mob. In the aforesaid situation, the evidence of P.W.1 cannot pass the test of reliability on material particulars to convict the Appellant for the charge of murder, unless such evidence of P.W.1 is corroborated by clear and unimpeachable evidence. 14. In this situation, when this Court is unable to accept the evidence of P.Ws. 1, 5 & 6, the evidence of only remaining witness is P.W.4 which is to be looked into, but her (PW4) evidence transpires that at the time of occurrence, she could recognize some persons, out of the mob including the convict-Kartik Paramanik in destroying their house along with others. However, P.W.4 has also stated alike P.Ws. 1, 5 & 6 that the CRLA No.283 of 2012 Page 21 of 34 accused-Kartik Paramanik assaulted her brother Ramesh over his right leg by one tangia, but had it been a fact, P.W.1 must have stated such fact in the F.I.R. inasmuch as when the name of P.W.4 has been stated to be a witness to the occurrence in the F.I.R. under Ext.1, how a significant fact like this be omitted in FIR. It is also admitted by P.W.4 in paragraph-11 of her cross-examination that her brother Ramesh(deceased) was assaulted at the middle of Budamaha Square, but none had attempted or chased to assault her, her son, her brother Naresh (P.W.1) and her sister-in-law (P.W.6). She has also further admitted in paragraph-9 of her cross-examination that she does not remember, whether the rioters destroyed their household articles inside the house or bringing the same to outside and when the rioters entered inside their house, they left the place. It is quite unnatural on a part of a mob, who is frenzy to attack the persons of other community would leave the other members of community without making any attempt or chase. It, CRLA No.283 of 2012 Page 22 of 34 therefore, appears that P.W.4 is exaggerating about the occurrence in her evidence. 15. From a careful and meticulous scrutiny of evidence on record, it is found that P.W.1 has lodged the F.I.R. under Ext.1 on 26.08.2008 at about 5 P.M. for the occurrence which took place on 25.08.2008 in the evening and in Ext.1, P.Ws. 1 & 4 have been described as witness to the occurrence and accordingly, P.W.7-I.O. examined them at the Police Station just after lodging of the F.I.R, but P.W.7 re-examined P.W.1 after eleven days of the occurrence on 05.09.2009 without any reason and in his statement, P.W.1 has made certain improvements. On lodging of F.I.R., P.W.7 immediately tried to proceed to the spot, but could not reach the spot on the same day and two days thereafter, P.W.7 again proceeded to the spot, however, failed to reach there and subsequently, on 29.08.2008, at about 7.30 P.M. PW7 went to another spot in village Panganaju where the dead body of the deceased was burnt. Accordingly, P.W.7 recovered and seized the remnants of the bones & ashes from the spot CRLA No.283 of 2012 Page 23 of 34 and sent the same to SFSL for chemical examination, but Expert could not furnish any opinion to the remnants of bone seized. Although P.W.7 has stated in his evidence that he could not reach to the spot on 29.08.2008 at about 10 A.M., but later on in his evidence, P.W.7 has stated that he had prepared the spot map of Budamaha square in the crime detail form under Ext.5 by wrongly quoting the date as 30.08.2008 instead of the correct date 29.08.2008 at 8 P.M. which in the circumstance creates further doubts in the mind of the Court. P.W.7 has also not explained as to why he examined P.Ws. 5 & 6 belatedly on 30.08.2008, although they were available in the house of P.W.1 and in the place to the knowledge of P.W.7. Even otherwise, accepting, but not admitting the evidence of eye witness PWs.1, 4, 5 & 6, at best one thing would emerge is that the convict was leading the mob and the convict dealt one axe blow on the right leg of the deceased, but it is not the prosecution case that the convict alone killed the deceased, rather the evidence of these witnesses only reflects that other persons in CRLA No.283 of 2012 Page 24 of 34 the mob attacked to kill the deceased. However, when the evidence “convict assaulting the deceased by means of a tangia on his right leg” which has been contradicted by the defence is sieved, the prosecution would be left with no evidence at all to establish the guilt of the convict. 16. On coming to the next point as to whether the convict is liable for the offences with aid of Section 149