ORDER Jose Luis Miranda, accused in sessions case No. 19/68 on the file of Additional Sessions Judge at Panjim, has filed this appeal aggrieved by his conviction and sentence for the offence punishable under Section 302, I.P.C. He has been sentenced to imprisonment for life. The case for the prosecution against the appellant is this :- The appellant and one Rosario Fernandes were residing at Hirabatt, Fatorda, Margao. Since 7 months prior to 8-6-1968 the appellant was working as toddy-tapper, under Constancio Cardozo of Hirabatt, Fatorda and was residing in his (Constancio's) house. Rosario Fernandes had taken on lease a fish pond which was in possession of Constancio Cardozo previously as lessee. The appellant used to catch fish in that fish pond at nights stealthily and due to it there used to be quarrels between the appellant and Rosario Fernandes. Few days before 8-6-1968 there was litany at Maria Estella's house. Constancio Cardozo, Rosario Fernandes, the appellant and some others attended that litany and while they were returning to their houses the appellant wanted to assault Rosario Fernandes, but due to the intervention of the sons of Constancio Cardozo the appellant could not. On 8-6-1968 Rosario Fernandes along with P.Ws. 3, 4, 5, 9 and 10 was returning at about 9.30 p.m. from Benedicto's house after attending a litany there. They were all coming walking by the path which was in front of the house of Constancio Cardozo. At that time Constancio Cardozo along with his sons Babush and Arthur were sitting in the verandah of his house. The appellant was also sitting with them. Finding P.W. 9, Rosario Fernandes and others walking in front of the house the appellant first abused P.W. 9 and then Rosario Fernandes. P.W. 9 is a brother of Rosario Fernandes. In spite of hearing abuses Rosario Fernandes and P.W. 9 proceeded towards their houses without saying anything. After they walked to a distance of about 40 or 50 metres the appellant went running holding a stick and beat Rosario Fernandes on the back of his neck. On receiving that injury Rosario Fernandes fell on the ground. P.Ws. 3, 4 and 5 who were behind Rosario Fernandes raised cries. P.Ws. 9 and 10 wear walking ahead of Rosario Fernandes when he was injured. The appellant on hearing the cries of P.Ws. 3, 4 and 5 injured with stick P.Ws. On receiving that injury Rosario Fernandes fell on the ground. P.Ws. 3, 4 and 5 who were behind Rosario Fernandes raised cries. P.Ws. 9 and 10 wear walking ahead of Rosario Fernandes when he was injured. The appellant on hearing the cries of P.Ws. 3, 4 and 5 injured with stick P.Ws. 3 and 5 and when Rosario Fernandes got up from the ground he (appellant) fisted him and threw him down on the ground. When he (Rosario Fernandes) was lying on the ground the appellant pulled knife, M.O. 3, from near his waist and stabbed him (Rosario Fernandes) on the left shoulder. Blood began to come out from the injury caused by the appellant, P.W. 3 continued shouting but no one came for help. The appellant went away towards his master's house. P.W. 3 then lifted Rosario Fernandes and made him walk towards his house. He walked to a distance of about 10 metres and being unable to walk further sat down. P.Ws. 4 and 5 went running to the house of Rosario Fernandes and told about the incident to their mother and P.W. 11 and P.W. 1 etc. P.Ws. 3 to 5 are children of Rosario Fernandes. P.Ws. 1, 11 and others came to the place where Rosario Fernandes was sitting and saw him. P.W. 1 went to the police station to give report. P.W. 9 was also injured with stick by the appellant when he came to the scene of offence on hearing the cries of children and questioned the appellant whether he would finish Rosario Fernandes. While P.W. 1 was at the police station he came to know through two persons that the condition of the injured was serious. He at once went to the spot with two police constables and found Rosario Fernandes dead. He went to the police station and reported about the death of Rosario Fernandes. Police reached the scene of the offence in jeep along with P.W. 1. They (Police) searched for the appellant in his master's house but could not find him on the night of the occurrence. They (Police) recorded complaint, Exh. P. 2, given by P.W. 1 and started investigation. On 9/6/68 the appellant was arrested by H.C. Police and was produced before the investigation officer P.W. 14. At the instance of the appellant, P.W. 14 in the presence of P.W. 7 and others recovered M.Os. They (Police) recorded complaint, Exh. P. 2, given by P.W. 1 and started investigation. On 9/6/68 the appellant was arrested by H.C. Police and was produced before the investigation officer P.W. 14. At the instance of the appellant, P.W. 14 in the presence of P.W. 7 and others recovered M.Os. 11 and 12 from the house where the appellant was residing. After holding inquest the corpse of Rosario Fernandes was sent by the police to the doctor for post-mortem examination. P.W. 6 held post-mortem on it on 9/6/68 and issued post-mortem certificate Exh. 9. He found scratches and lacerated and incised wounds on the corpse. He opined that Rosario Fernandes had died due to haemorrhage and left lung being cut as a result of the incised injury caused to him with knife-like M.O. 3 on left shoulder between clavicle and shoulder blade. P.W. 10 also had been to the scene of the offence on hearing cries of the children on the night of the occurrence. He had seen some persons sitting in Constancio Cardozo's house when he was returning from the house of Benedicto. P.W. 12, doctor, found injuries on the persons of P.Ws. 3, 5, 9 and the appellant. He had examined the appellant on 9-6-1968 at about 10.30 p.m. on his being sent to him by the police. Charge sheet was filed on 5-9-1968 by P.W. 15. 2-3. P.W. 12, doctor, found injuries on the persons of P.Ws. 3, 5, 9 and the appellant. He had examined the appellant on 9-6-1968 at about 10.30 p.m. on his being sent to him by the police. Charge sheet was filed on 5-9-1968 by P.W. 15. 2-3. The case of the appellant as is evidence from his statement under Section 342, Criminal P.C. is that while he was sitting in the verandah of Constancio Cardozo's house P.W. 9 greeted Constancio Cardozo saying "good-night", that at that time Rosario Fernandes questioned saying "Who is that, is that lamboo ?", that he (appellant) replied to that question saying "Who are you, chamru ?", that on it Rosario Fernandes started abusing him (appellant) and he abused Rosario Fernandes, that the abuses went on for some time, that Rosario Fernandes went to a distance of about 25 metres from the house of Constancio Cardozo halted and asked him (appellant) to come out if he (appellant) was a man, that immediately he (appellant) came out of the house and proceeded towards Rosario Fernandes, that on the way he picked up a bamboo stick and reached a place which was at a distance of about 8 or 10 metres from Rosario Fernandes, that at that time Rosario Fernandes asking his children not to shout came near him (appellant) saying "I am going to show you", that he (appellant) then lifted the stick against Rosario Fernandes, that Rosario Fernandes caught that stick and there was fight, that he and Rosario Fernandes rolled on the ground, that Rosario Fernandes snatched the stick and gave a blow on his (appellant's) head and was about to give another blow, that then he caught the hands of Rosario Fernandes and snatched the stick from his hand that thereafter Rosario Fernandes took out a knife from his (Rosario's) pocket and gave with it blows on his (appellant's) right shoulder and back, that then he hit on his (Rosario Fernandes') fist and the knife fell down on the ground, that he and Rosario Fernandes struggled to get hold of the knife, that he (appellant) succeeded in getting hold of the knife but Rosario Fernandes threw him (appellant) down on the ground and sat on him trying to snatch the knife, that he (Rosario) did not succeed in snatching the knife, that number of blows were given by Rosario Fernandes on his (appellant's) face and chest, that then P.W. 9 approached and caught hold of his (appellant's) legs, that he (appellant) freed himself from Rosario Fernandes and went away and that while going he took stick M.O. 12 with him. The appellant did not explain as to how Rosario Fernandes received the fatal injury. He added that Rosario Fernandes' family and P.W. 2 are on inimical terms with him. 4. The learned Additional Sessions Judge after trial found that the whole story given by the prosecution was not correct. He came to the conclusion that there was a fight between the appellant and the deceased when the appellant went to the deceased holding a stick and that in the struggle when the appellant pulled out knife M.O. 3 from near his waist, the appellant and the deceased received injuries and the deceased was fatally injured by the appellant on his left shoulder. 5. It is contended on behalf of the appellant that the trial Court did not appreciate the evidence properly, that it is not established that the appellant caused the fatal injury to the deceased, and that the appellant has been incorrectly convicted and sentenced. 6. The point for determination is whether the learned Additional Sessions Judge was right in holding the appellant guilty and awarding sentence of imprisonment for life to him. 7. Prosecution examined in all 15 witnesses in this case. One witness was examined in defence. Out of 15 witnesses examined on behalf of the prosecution P.Ws. 6 and 12 are doctors. P.W. 13 was declared hostile as he did not speak anything in favour of the prosecution. P.Ws. 14 and 15 are investigation officers. P.Ws. 2, 7 and 8 are panchas, P.W. 1 is complainant. He and P.W. 11 came to the scene of offence hearing from P.Ws. 4 and 5 that Rosario Fernandes was injured. They did not witness the occurrence, P.Ws. 3, 4, 5, 9 and 10 are the persons who were with the deceased while the deceased was returning to his house after attending litany. Direct evidence has been given by P.Ws. 3, 4 and 5 and circumstantial evidence has been given by P.Ws. 9 and 10. The case of the prosecution rests mainly on the evidence of P.Ws. 3 to 5, 9 and 10. The story given by P.Ws. 3, 4 and 5 is that while they along with P.Ws. Direct evidence has been given by P.Ws. 3, 4 and 5 and circumstantial evidence has been given by P.Ws. 9 and 10. The case of the prosecution rests mainly on the evidence of P.Ws. 3 to 5, 9 and 10. The story given by P.Ws. 3, 4 and 5 is that while they along with P.Ws. 9, 10 and Rosario Fernandes were returning from the house of Benedicto the appellant first abused P.W. 9 and then Rosario Fernandes, that they were then on the path in front of Constancio Cardozo's house, that they proceeded without replying to what the appellant was saying, that after Rosario Fernandes went to a distance of about 40 or 50 metres from the house of Constancio Cardozo, the appellant went running to him and beat him with stick on the back of his neck, that on receiving that injury he (Rosario Fernandes) fell on the ground, that they (P.Ws. 3, 4 and 5) raised cries, that the appellant then beat P.Ws. 3 and 5 with stick, that Rosario Fernandes got up but the appellant fisted him and made him fall down on the ground, that while Rosario Fernandes was lying on the ground the appellant pulled knife, M.O. 3, from near his waist and stabbed him (Rosario Fernandes) on left shoulder, that blood began to come out and P.W. 3 continued shouting, that the appellant then went away towards his master's house, that P.W. 3 lifted Rosario Fernandes and took him to some distance, that P.Ws. 4 and 5 went to the house of Rosario Fernandes to inform about the incident, that on hearing from them about the occurrence P.Ws. 1, 11, wife of Rosario Fernandes and others came to the scene of the offence, that Rosario Fernandes walked to a short distance and sat down, being unable to walk further, that after seeing the condition of Rosario Fernandes, P.W. 1 went to the police station and that within a short time of receiving the stab injury Rosario Fernandes died where he had sat. P.Ws. 9 and 10 have not spoken that they had seen the appellant injuring Rosario Fernandes. P.W. 9 said that while he, Rosario Fernandes and others were returning from Benedicto's house the appellant abused him and Rosario Fernandes but they went towards their house quietly, that after they went to some distance from the house of Constancio Cardozo he heard P.Ws. 9 and 10 have not spoken that they had seen the appellant injuring Rosario Fernandes. P.W. 9 said that while he, Rosario Fernandes and others were returning from Benedicto's house the appellant abused him and Rosario Fernandes but they went towards their house quietly, that after they went to some distance from the house of Constancio Cardozo he heard P.Ws. 3, 4 and 5 shouting that their father was stabbed, that then he went to see the injured and finding the appellant there questioned him whether he would finish him (injured), that the appellant at that time beat him with stick on head and hand and that he fell on the ground, P.W. 10 did not even state that he had heard any abuses in front of Constancio Cardozo's house. His evidence is to the effect that hearing shouts of P.W. 5 that her father was beaten he (P.W. 10) went to the place where Rosario Fernandes was and found blood coming out from the person of Rosario Fernandes, that then he had seen the appellant going towards his (appellant's) house and that he does not know anything more about the occurrence. 8. On the basis of the evidence of P.Ws. 9 and 10 it cannot be said that the appellant had caused the fatal injury to the deceased as they do not say as to who caused that injury. The evidence of P.Ws. 3, 4 and 5 appears untrustworthy for various reasons. They are children of deceased Rosario Fernandes. They are aged 15, 10 and 12 respectively. The evidence of P.Ws. 4 and 5 was recorded by the trial Court without administering oath to them stating that they were of tender age. There is nothing to show that P.Ws. 4 and 5 know the difference between truth and false and they can understand and remember facts. During investigation P.Ws. 4, 5 and 11 were examined on 15-6-1968, P.W. 3 was examined on 18-6-1968 and P.W. 10 was examined on 13-8-1968. All these witnesses were available to the investigation officer from 8-6-1968 only i.e. from the time of the commission of offence but they were not examined either at the scene of offence or at the inquest. Why they were examined number of days after the date of commission of the offence has not been explained. All these witnesses were available to the investigation officer from 8-6-1968 only i.e. from the time of the commission of offence but they were not examined either at the scene of offence or at the inquest. Why they were examined number of days after the date of commission of the offence has not been explained. According to P.W. 3 he was examined by the police on the third day after the commission of the offence but the investigation officer, P.W. 14, says that he had examined P.W. 3 ten days after the commission of the offence. It should be remembered that out of the 3 eye witnesses examined in this case oath was administered to only one i.e.; P.W. 3 and all the eye witnesses are the children of the deceased. The scene of offence is said to be at a place where there are number of residential houses. The investigation officer (P.W. 14) says that he had casually made enquiries in the neighbourhood of the scene of offence but had not recorded the statements of the persons whom he had enquired. If P.Ws. 3, 4 and 5 had raised cries when their father was being beaten and stabbed naturally the neighbours might have gathered at the scene of offence. Under Section 175, Criminal P.C. the investigation officer was bound to summon the eye witnesses to be present at the inquest. Not examining the eye witnesses at the inquest and examining them number of days after the date on which the offence was committed makes one feel that to tutor them time was taken. The story given by the eye witnesses does not appear to be natural because it is evident from the evidence of doctor, P.W. 12, and the investigating officer, P.W. 14, that number of incised wounds contusions and abrasions were found on the person of the appellant when he was arrested on 9-6-1968 and because it is not explained as to how he received those injuries, 3 of the injuries found on the person of the appellant were caused with knife. Two knives, M.Os. 4 and 5, were found at the scene of offence. M.O. 4 is a penknife and it is said that it was found lying folded at the scene of offence. To whom the knives belong there is no evidence. Two knives, M.Os. 4 and 5, were found at the scene of offence. M.O. 4 is a penknife and it is said that it was found lying folded at the scene of offence. To whom the knives belong there is no evidence. The trial Court on the basis of the evidence of P.W. 13 came to the conclusion that knife, M.O. 3, with which the injuries found on the person of the deceased could be caused belonged to the appellant put it cannot be said that the conclusion at which the trial Court arrived is correct P.W. 13 did not state that knife M.O. 3 belongs to the appellant. His evidence is that the appellant had purchased a knife at Margao, that that knife was like M.O. 3, that he could not say whether M.O. 3 was the knife which the appellant had purchased and that police had not shown the knife to him. If the police wanted to collect evidence about ownership of knife, M.O. 3, it should have shown that knife to P.W. 13 or someone who knows about it during investigation. In the absence of evidence about the ownership of knife, M.O. 3, especially when the appellant is contending that that knife was taken out by the deceased, it cannot be said that knife, M.O. 3, belongs to the appellant, he had taken it to the scene of the offence and he had stabbed with it the deceased taking it out from near his waist. It is not the case of the prosecution that the injuries found on the person of the appellant were self-inflicted or that they were received by him at a place other than the scene of the offence, P.W. 14 says that he had sent the appellant to the Magistrate for his confession being recorded. What the appellant told before the Magistrate is not known. P.W. 14, investigation officer, says that he does not know whether the statement of the appellant was recorded by the Magistrate. What the appellant told before the Magistrate is not known. P.W. 14, investigation officer, says that he does not know whether the statement of the appellant was recorded by the Magistrate. It can never be presumed that the investigation officer was not knowing or that he did not try to know whether the Magistrate recorded the statement of the appellant under Section 164, Criminal P.C. Not producing the statement of the appellant recorded under Section 164, Criminal P.C. creates doubts, P.W. 13, who was declared hostile by the learned public prosecutor in trial Court, and D.W. 1 support the story given by the appellant saying that the appellant and the deceased abused each other in filthy language and that the deceased had asked the appellant to come if he was a man. It is contended on behalf of the prosecution that P.W. 13 spoke in trial Court against what he stated during investigation and in the committal Court and that his evidence should not be believed but that contention does not appear to be correct because P.W. 13 deposed in trial Court that he was threatened by the police to speak in committal Court as he spoke during investigation and because it is found in the evidence of the investigation officer, P.W. 14, that P.W. 13 was called to police station again and again for 3 days for interrogation and that he was being allowed to go home only to take his food. The contention of P.W. 13 that he was threatened by the police appears to be correct in view of the evidence given by P.W. 14, investigation officer. Even though P.Ws. 3, 4 and 5 say that the appellant had injured with stick on the neck of the deceased no injury on the corpse of the deceased was found by doctor, P.W. 6, who conducted autopsy on it on 9-6-1968. Even the trial Court has not believed the evidence given by P.Ws. 3, 4 and 5. The trial Court wrote in its judgment that the evidence given by the eye witnesses could not be believed in toto and that their evidence could be believed to the extent it was corroborated. There is practically no evidence to corroborate the evidence of the eye witnesses that the appellant took out the knife M.O. 3, from near his waist and stabbed the deceased with it. There is practically no evidence to corroborate the evidence of the eye witnesses that the appellant took out the knife M.O. 3, from near his waist and stabbed the deceased with it. The learned public prosecutor argued that the appellant has not put his case in cross-examination, to the P.Ws. Even though there was no effective cross-examination but still it cannot be stated that the appellant did not suggest to the prosecution witnesses that there was struggle and fight. P.Ws. 4 and 5 were questioned in cross-examination about the deceased provoking the appellant by abusing him. They denied the suggestion, P.W. 9 denied the suggestion that he and the deceased wanted to assault the appellant and that because the deceased abused the appellant there was fight between the appellant and the deceased. It appears that from the very start of the investigation attempt was made to suppress the fact of the appellant being injured at the scene of the offence and create a new story. The appellant was arrested by a H.C. police on 9-8-1968 and on that date he (the appellant) was sent to doctor, P.W. 12, for examination. That doctor found number of injuries on the person of the appellant. The certificate relating to the wounds on the appellant was not obtained from P.W. 12 by the investigation officer. It is not stated by the prosecution as to what happened when the appellant was sent to the Magistrate for his statement being recorded under Section 164, Criminal P.C. Incised injury was found by doctor P.W. 12 on the head of P.W. 9, P.W. 9 says that he was beaten with stick only. If P.W. 5 had not interfered in the quarrel between the appellant and the deceased be could not receive incised injury on his head. True facts have not been brought before the Court. When the story given by the prosecution does not appear to be correct the Court cannot presume that the incident occurred in some other manner and hold the appellant guilty. If there was no exchange of abuses between the appellant and the deceased, if the appellant was not provoked and if the deceased, in spite of the appellant abusing him was going away quietly the appellant would not have gone behind the deceased holding a stick and beaten and stabbed him. If there was no exchange of abuses between the appellant and the deceased, if the appellant was not provoked and if the deceased, in spite of the appellant abusing him was going away quietly the appellant would not have gone behind the deceased holding a stick and beaten and stabbed him. The conclusion of the trial Court that there was fight, that in that fight the appellant pulled out knife M.O. 3 and with that knife the deceased and the appellant received injuries in struggle and that the deceased was at last fatally stabbed by the appellant is all based on presumptions. On presumptions it cannot be held that the guilt of the appellant is proved. On the material on the record the Court is unable to say with certainty that the appellant in the circumstances stated by the prosecution caused the fatal injury to the deceased. The benefit of doubt must go to the appellant. 9. The appeal is allowed. The order of conviction and sentence passed against the appellant is set aside. The appellant is acquitted. He be set at liberty at once in this case. Accused acquitted.