This appeal arises out of the judgment dated 27.2.88 passed by Sessions Judge, Nalbari in Sessions Case No.39 (N)/86 thereby holding the appellants guilty of offence punishable under section 326/149 IPC and sentencing them to undergo rigorous imprisonment for 5 years with fine of Rs.2,000 each and in default of payment of fine to suffer 3 months RI. The accused-appellants were also charged under sections 323/149 and 302/149 IPC, but they have been acquitted of these charges by the trial Court and no appeal against acquittal by State of Assam has been preferred.

2. Aggrieved by the conviction and sentence as recorded by the trial Court, the accused-appellants have preferred this appeal. It is mainly assailed by the learned counsel appearing for the appellants, on the ground that the evidence adduced by the prosecution in support of the charge under section 326/149 IPC is wholly untrustworthy and unreliable. The conviction as recorded by the trial Court is, therefore, liable to be set aside.

3. Learned Public Prosecutor Mrs Deka on the other hand, maintains that the conviction as recorded by the trial Court is well supported by evidence and it does not call for any interference.

4. Before proceeding to deal with the rival submissions made at the Bar and the evidence adduced by the prosecution, the basic facts need be noted.

5. On 3rd of January, 1980, the accused-appellants having formed an unlawful assembly and armed with deadly weapons, such as, sticks, daos, axe, spear, etc in furtherance of their common object, committed murder of one Dilip Hujuri and on the same day caused grievous hurt to one Jiten Kalita.

6. Initially on the basis of report lodged by one Jogen Talukdar, a case under section 148/149/302/326/325 IPC was registered at Police Station Barama which was investigated by PW 9, the IO. On completion of usual investigation which included visiting the spot, holding inquest, sending the dead body for post mortem examination and report, recording the statement and sending the injured for medical examination, the accused were charge sheeted and tried for the above offences. Their defence, as can be gathered from the statement recorded under section 313 CrPC and the trend of cross-examination was one of outright denial of the prosecution case and their false implication. The trial Court, however, while exonerating the accused-appellants of the charges under section 302/149 IPC found them guilty of offence punishable under section 326/149 IPC and sentenced them as already noted above. Hence this appeal.

7. Learned counsel appearing for the appellants criticized the prosecution evidence attacking its credibility mainly on the ground that the prosecution witnesses have considerably improved upon their previous statements as recorded under section 161 CrPC, as proved by the IO, PW 9. Taking the criticism to be correct on its face value, yet it does not help the appellants in any manner. It is not the IO, whose statement is sought to be contradicted. The procedure laid down under section 162 CrPC read with section 145 of the Evidence Act must be followed by any party who wants to avail of or make use of the previous statements made by a witness. Without following the procedure, simply asking the IO about the previous statement is nothing but a mere exercise in futility. It does not help either party and no Court should permit such cross-examination of the IO unless the witness whose statement is sought to be contradicted has been confronted with the specific part of his or her statement and to which his or her pointed attention is invited before calling upon the witness to explain any contradiction obtaining in the previous statement. A mere reading of the proviso to sub-section (1) of section 162 would make the position very clear. It is really a sorry state of affairs that the Supreme Court as back as in 1959 in Tahsildar Singh & another vs. State of UP, AIR 1959 SC 1012 having pointed out the manner in which the contradiction fr

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