JUDGMENT : Shah, J. 1. On April 8, 1963, one Satyendra Kumar Sen lodged information at Patharkandi Police Station that when his brother Jitandra Kumar Sen was proceeding early in the morning of that day towards Patharkandi with a calf he was killed by the appellant Digendra Kumar Dey by inflicting several blows with a dao and that thereafter the appellant Digendra Kumar Dey had run away with a bloodstained shirt. The police investigated the complaint and found in an open place the dead body of Jitendra Kumar Sen who will hereinafter be referred to as "Jitendra" tied with a rope to a calf. On the person of Jitendra there were 13 injuries 11 incised wounds and 2 fissured fractures. Enquiry was made about the appellant but he could not be traced. His house was searched and a lungi and gamcha were attached. The appellant surrendered himself before a Magistrate on May 28, 1963, and was thereafter tried before the Sessions Judge, Cachar at Silchar for the offence of causing the death of Jitendra. At the trial the prosecution relied upon the testimony of two persons who claimed to be eyewitnesses PW 4 Basanta Singh and PW 9 Abani Kumar Shome, the evidence that between the appellant and Jitendra there were disputes with regard to a house site which Jitendra intended to sell to one Kukil and about the threats given by the appellant in the presence of three persons Kusum Kumari De, Jajneswar Bhattacharjee and Radhika Ranjan Choudhury that the appellant would kill Jitendra. Evidence was also led that the appellant was seen in the vicinity of the scene of offence sometime early in the morning on the day of the offence, and that he was then wearing the lungi and gamcha which were traced from his house. Evidence was also led to show that the appellant was absconding and enquiry was made at various places about him and that his property was attached before the appellant surrendered himself before the Magistrate. The learned Sessions Judge accepted the testimony of the eyewitnesses, because in his view it was supported by the evidence relating to the dispute between the appellant and Jitendra, the threats given by the appellant sometime before the death of Jitendra and the presence of the appellant near the scene of offence shortly before the time of the commission of the offence. The learned Judge convicted of the appellant for an offence under Section 302 Indian Penal Code and sentenced him to suffer imprisonment for life. 2. The appellant appealed against the order of conviction and sentence. A notice of enhancement of the sentence was issued by the High Court in appeal. The learned Judges of the High Court were of the view that evidence relating to motive of the appellant for killing Jitendra was sufficiently established and that the story of the witnesses who deposed to the threats uttered by the appellant was also true. In their view the decision of the case turned upon the evidence of two witnesses PW 4 Basanta Singh and PW 9 Abani Kumar Shome. They observed that it was unsafe to rely upon the testimony of Basanta Singh in support of the conviction, but in their view the testimony of Abani Kumar Shome was not infirm and may support the order of conviction. They further held that the reasons given by the Sessions Judge for not imposing the sentence of death were "absolutely inadequate" and since the appellant had caused as many as 11 incised wounds with his dao the murder appeared to be cruel and the appropriate sentence was the death sentence. They accordingly confirmed the conviction and enhanced the sentence to one of death. Against the order passed by the High Court, this appeal has been preferred with special leave under Article 136 of the Constitution. 3. This Court has held in Pritam Singh v. State, (1950) SCR 453, that the Supreme Court is not an ordinary Court of criminal appeal and will not, generally speaking, allow facts to be reopened, especially when the two Courts below agree in their conclusions in regard to them and when the conclusions of fact which are challenged are dependent on the credibility of witnesses who have been believed by the trial court which had the advantage of seeing them and hearing their evidence, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and the case in question presents features of sufficient gravity to warrant a review of the decision appealed against. This is an appeal filed with special leave, and ordinarily we would not be justified in proceeding to review the evidence unless exceptional and special circumstances are shown to exist. This is an appeal filed with special leave, and ordinarily we would not be justified in proceeding to review the evidence unless exceptional and special circumstances are shown to exist. In the present case, on a consideration of all the circumstances and the evidence, we are of the view that exceptional and special circumstances exist which would justify this Court in reviewing the evidence. 4. The evidence in support of the case for the prosecution is both direct and circumstantial, but the circumstantial evidence is by itself not sufficient to bring home the charge to the appellant for the offence of murder. It may raise a suspicion possibly a grave suspicion but no more, and if the testimony of the eyewitnesses is discarded, in our judgment, no conclusion that the appellant is guilty of the offence of murder would be justified on the circumstantial evidence. The High Court was in our judgment right in observing that the case rested only upon the evidence of the two eyewitnesses Basanta Singh and Abani Kumar Shome. Basanta Singh in his testimony before the trial court stated that on the day of the occurrence in the morning before day-break while he was urinating near the east of his house he saw from a distance of about 150 yards, the appellant hitting with a dao a man who was lying on the ground, and then he saw the appellant run towards the east, and that when he the witness went near the scene of assault he found that the victim of the assault was Jitendra. His testimony was wholly inconsistent with the version deposed to by him before the committing Magistrate. The witness had stated before the committing Magistrate that when he came out of his house on the morning of the day of occurrence it was almost dark, that he had not seen the appellant within the vicinity of his house on that date and that he had only seen Jitendra when he reached the spot where he was lying injured. He denied that he had seen the appellant attacking Jitendra. The witness explained before the trial Judge that he had made the statement before the committing court out of fear of the appellant. The testimony of witness Basanta Singh was wholly unreliable. He had made statement before the committing Magistrate denying that he was present at the time of the assault upon Jitendra. The witness explained before the trial Judge that he had made the statement before the committing court out of fear of the appellant. The testimony of witness Basanta Singh was wholly unreliable. He had made statement before the committing Magistrate denying that he was present at the time of the assault upon Jitendra. According to this witness the assault deposed to by him in the Court of Session was made sometime about 5.15 a.m. and sunrise on the day in question was at about 5.27 a.m. It would be difficult to believe that from a distance of 150 yards in the early morning it would be possible for a person to identify the assailant. Again, on his evidence in the Court of Session it is clear that when his attention was directed towards the scene of offence the victim had fallen to the ground. If that be so, the assailant could not when hitting blows with a dao be standing or in any erect posture. The Sessions Judge made a somewhat laboured attempt to reconcile the statements made by the witness before the committing Magistrate and before the Sessions Judge, but the statements were so wholly inconsistent that it must be held that the witness was telling an untruth on one of the two occasions if not on both. We agree with the High Court that the testimony of this witness was unreliable. 5. Abani Kumar Shome is another eyewitness. He deposed that on the day of occurrence at about 5.00 or 5.30 a.m. he started for Patharkandi Bazar to purchase goods for his shop, and when he had proceeded about a quarter of a mile he saw one black calf pulling something and struggling with a man who was lying on the ground and that he saw the appellant attacking that man with a dao. This witness claimed that he saw the incident from a distance of about 100 or 125 yards. He admits that he did not advance towards the scene of offence but sat down. He then saw the appellant going away hurriedly. He stated that he wanted to raise a shout but his "throat was chocked on seeing the assault". He claimed that he returned home and as his head was reeling he could not speak to anybody. He admits that he did not advance towards the scene of offence but sat down. He then saw the appellant going away hurriedly. He stated that he wanted to raise a shout but his "throat was chocked on seeing the assault". He claimed that he returned home and as his head was reeling he could not speak to anybody. He stated that he informed his wife about the assault, but to no one else, and he even cautioned his wife not to disclose to anybody that he had seen the assault upon Jitendra. He admitted that the police had made inquiries about him within a week after the assault, but every time he was asked to go to the Police Thana he promised to go but did not attend, because he did not like to go to the Thana before the arrest of the appellant, and it was only after the appellant was arrested that the witness made a statement before the police. In accepting the testimony of this witness, the High Court merely observed that they had read the entire evidence before the Court of Session as well as before the committing Court and they were satisfied that it was safe to rely on his evidence for the purpose of holding that the appellant and no other person inflicted the injuries on Jitendra which had resulted in his death. This was, in our view, a wholly unsatisfactory way of dealing with a serious case in which the accused stood in danger not only of loss of his liberty, but of his life. The appellant was charged with a serious offence, and a notice of enhancement of sentence was issued against him. Before recording a conclusion that the testimony of this witness was reliable and could be used in support of an order imposing the death penalty, it was, in all fairness to the appellant, necessary that the learned Judges should have set out briefly the effect of the evidence, the serious infirmities in the evidence and the reasons why they were of the view, notwithstanding the infirmities, that they were willing to accept the testimony. The testimony of this witness discloses on a bare perusal some striking infirmities. The testimony of this witness discloses on a bare perusal some striking infirmities. He had not given any information on his own admission to any one except to his wife, that he was an eyewitness to the assault upon Jitendra: though he had been called to the Thana within a week after the assault upon Jitendra, he avoided attending and his statement was recorded more than two months after the date on which the offence was committed: and that even after he saw an assault with a deadly weapon, he did not evince the slightest curiosity to see who the victim was. Besides these infirmities the attack on Jitendra was made at a time when there was insufficient light, and the witness was at a considerable distance from the scene of attack, and as we have already pointed out the assailant when attacking with a dao the victim who was lying on the ground could not be in a standing posture. The conduct of the witness in not raising a shout even after he saw the appellant going away from the scene of offence and in not going to the scene of the offence where the victim was lying to ascertain whether the victim was alive and whether medical assistance may be procured for him clearly throws a great doubt upon the credibility of his version. We are of the view that the High Court was not justified in relying upon the testimony of this witness. 6. The remaining evidence that there were quarrels between the appellant and Jitendra does not advance the case of the prosecution if the direct evidence is disbelieved. Even if it be believed that the appellant had in the presence of Kusum Kumari, Jajneswar Bhattacharjee and Radhika Ranjan Choudhury threatened that he will kill Jitendra, no inference can be drawn that the assault upon Jitendra was made by the appellant and by no one else. The story of witness Mrinalini Sen widow of the deceased and Jajneswar Bhattacharjee that the appellant was seen somewhere near the scene of the offence in the morning on the day of the offence does not carry conviction and even if it is accepted, no inference could be raised that the appellant was guilty of the offence of murder of Jitendra. The finding of the lungi and gamcha from the house of the appellant is a circumstance which is purely neutral. It is not the case of the prosecution that there were any bloodstains upon the clothes, and assuming that the appellant was seen on the morning of the day of occurrence of the offence wearing the lungi and gamcha which have been traced, no inference may be drawn that he was guilty of the offence of murder. It is true that the appellant was for more than seven weeks absconding from the day of which the offence was committed: that circumstance may raise a serious suspicion against the appellant, but would not by itself justify his conviction for the offence of murder. In our view the direct testimony is unreliable and the circumstantial evidence is not sufficient to bring home the charge of murder of Jitendra to the appellant. 7. The appeal is therefore allowed and the appellant is ordered to be acquitted of the offence charged.