BHATTACHARYYA, J. ( 1 ) THIS Appeal is directed against the judgment and order dated 28. 4. 1989 of the 7th Court of Additional District and Session Judge, Alipur in Session Trial Case No. 3 (3) of 1989. The learned trial Court convicted Sambhunath Adhikari and Biswanath Hui alias Wheel Hishu under section 302. Indian Penal Code read the section 34 and sentenced them to imprisonment for life and to pay a fine of Rs. 1,000\- (Rupees one thousand) each in default to suffer rigorous imprisonment for further period of 6 (six) months. ( 2 ) THE facts have been detailed in the judgment of the trial Court but for appreciation of the facts in the Appeal, we give a brief resume of the facto. ( 3 ) THE fateful incident took place on 26-11985 at or about 2. 30 a. m. in the mid-night on the Saraswati Puja eve. It has been highlighted in the evidence that Sekhar Das (P. W. 17), Tarak Roy (P. W. 20) besides the deceased, after purchase of the Idol proposed to visit the prostitutes of Tablagali at Kalighat Road. To fulfil their desired objective, they went to Tablagali during that night. There was a wrangle between the prostitutes in one hand and the deceased on the other over the rates. In the midst of such a wrangle over the issue, three armed persons broke out in that particular area. Two of them caught-hold of Gajanan Chakraborty and Badal Das and Sambhu dealt the dagger blows on Gajanan and Badal. However, they tried to flee in vain but their other comrades Sakhar and Tarak managed to flee from the situation after being chased. ( 4 ) THEREAFTER, Ratanlal Mukherjee (P. W. 21) entrusted the patrol duty along with other constables and officer under him found them lying on the pavement seriously injured. In the meantime, the relations of the deceased persons appeared thereon information and identified the injured. ( 5 ) RATANLAL Mukherjee (P. W. 21) sent them to S. S. K. M. Hospital where they were declared brought dead by the Doctor on examination. In due course the autopsies were held on the dead bodies after the inquest was held by Ratanlal (P. W. 21 ). The police started a suo motu F. I. R. (Ext. ( 5 ) RATANLAL Mukherjee (P. W. 21) sent them to S. S. K. M. Hospital where they were declared brought dead by the Doctor on examination. In due course the autopsies were held on the dead bodies after the inquest was held by Ratanlal (P. W. 21 ). The police started a suo motu F. I. R. (Ext. 10) against unnamed assailants and started a case which was registered and numbered as Bhowanipur, P. S. Case No. 61 dated 26. 1. 1985 under section 302. ( 6 ) RATANLAL Mukherjee (P. W. 21) seized alamats from the place where the injured were found duly attested by witnesses. The viscera was sent after the post-mortem to the F. S. L. for opinion and report. ( 7 ) RATANLAL Mukherjee (P. W. 21) also examined some witnesses of the locality. In course of investigation, the police arrested Sambhunath Adhikari on 28. 5. 1985, Hiswanath Hui on 22. 3. 1985 and Sunil Sarkar on 29. 1. 1985. On conclusion of investigation charge-sheet was submitted against the accused persons under section 302 read the section 34 of the Indian Penal Code. ( 8 ) THE accused persons were put up for trial before the learned S. D. J. M. , Alipur but the case being exclusively triable by the Court of Sessions, the learned S. D. J. M. committed the case and the accused to the Court of Session to stand the trial. The trial Court framed charges against the two accused persons under section 302 read the section 34 of the Indian Penal Code. The charges so framed by the trial Court were read over and explained to each of the accused in Bengali who pleaded not guilty to the charge and claimed to be tried. ( 9 ) THE case of the defence as can be gathered from the mass of materials on the record and also from the explanations furnished by the accused under section 313 of the Code of Criminal Procedure, 1973 is of pure innocence. The past enmity was explored to haul them up with the case. The accused persons did not examine any witness. The trial ended in conviction of the accused persons when this Appeal before us. ( 10 ) THE following points, which, therefore, arise for consideration of this Court are: (1) Did the accused persons commit the death of Badal Das and Gajanan Chakraborty? The accused persons did not examine any witness. The trial ended in conviction of the accused persons when this Appeal before us. ( 10 ) THE following points, which, therefore, arise for consideration of this Court are: (1) Did the accused persons commit the death of Badal Das and Gajanan Chakraborty? (2) Were the accused persons acting in furtherance of their common intention? decision point Nos. 1 and 2 ( 11 ) WE take up both the points together for the sake of convenience, because they are overlapping. The question of common intention is connected with the identification of the accused in this way or that position. After the Court is, fully assured about the presence or otherwise of this accused or that accused persons, it would be for the Court to infer whether the accused persons were acting in furtherance of common intention. Thus, the two questions arc inextricably the each other and the evidence is also overlapping. The important question at the very threshold is about the presence of the accused and the eye witnesses to the scene of occurrence. The above should be, scrupulously examined. And here also we propose to take the position of both the accused because there is the same evidence, deposed to by the same witnesses in the same breath. ( 12 ) THE witnesses can be classified into several categories. The evidence of Sekher Das (P. W. 17) and Tarak Roy (P. W. 20) is one class, because they are the direct witnesses about the assailants and the assault. In the second class, come the witnesses who did not see themselves but who came to Baragali after the occurrence and identified the deceased. Thereafter, come Achinta. Kr. Dey (P. W. 4), Ajit Kr. Chakraborty (P. W. 5) and Ganapat Sharma (P. W. 6), who did not see themselves the assault but who arrested the seizure list (Ext. 5) on 26. 1. 1985. They subscribed their signatures to the seizure list (Ext. 5/1, 5/2, 6 and 6/1 ). The next witnesses to come arc Sukumar Sadhu Khan (P. W. 11) and Moni Khara (P. W. 12) who reported to the constable at Patuapara about the two injured persons lying the bleating injury, one in front of a jewellery shop and another in front of a sweet meat shop. Then comes Ratanlal (P. W. 21),subal Ch. Sarkar (P. W. 10), Md. Then comes Ratanlal (P. W. 21),subal Ch. Sarkar (P. W. 10), Md. Harul Khan (P. W. 12), Mustak Ahmed Khan (P. W. 14) and Arun Chandra Satpati (P. W. 16) who in course of their patrol duty reached the Baragali and found the twin young men there the bleeding injuries. After them come Ashok Bhattacharjee (P. W. 2), the plan maker and Kanan Bihari Chakraborty (P. W. 3), the official photographer. Purnima Mondal (P. W. 1), is the first witness in the row who was declared hostile by the prosecution. At the end comes another class viz, the Doctors. One of them is Dr. Ashok Kr. Maitra (P. W. 18) who conducted the post-mortem examination on 28. 1. 1985 in respect of the deceased persons. Dr. Satyabrata Ganguly (P. W. 19) is the Doctor who upon examination of both Badal Das and Gajanan Chakraborty declared them brought deadt identified by the constable. The exhaustion of the list became complete with the examination of Shyam Sundar Nandi (P. W. 22 ). His evidence was confined to the ascertainment of age of Sambhunath Adhikari, one of the accused who stood the trial. ( 13 ) TO embark on an enquiry in order to fix the authorship of the crime, the main stay of the prosecution case hinges on the testimonies of Sekhar Das (P. W. 17) and Tarak Roy (P. W. 20 ). Both of them have asserted in their evidence as eye witnesses to the assault who gave an account of the assailant. In the perspective of their being the eyewililesses to the assault, the evidence of each warrants a close analysis along with other evidence both Overt and covert. It has been seriously disputed by Mr. Roy the learned Advocate for the appellants about the presence of both Sekher and Taraks to the scene of occurrence. ( 14 ) IT is needless to repeat that the death of both Badal Das and Gajanan Chakraborty was been well established by the evidence of Dr. Ashok Maitra (P. W. 18) who conducted autopsies on the dead bodies of Badal and Gajanan after identification. It has also been established beyond any shadow of doubt from the evidence on record that the death according to the opinion of Doctor, was due to the effect of injuries which were ant mortem and homicidal in nature. Ashok Maitra (P. W. 18) who conducted autopsies on the dead bodies of Badal and Gajanan after identification. It has also been established beyond any shadow of doubt from the evidence on record that the death according to the opinion of Doctor, was due to the effect of injuries which were ant mortem and homicidal in nature. In view of the description of injuries since fully abreast of the evidence of Dr. Maitra (P. W. 18), their reproduction in the judgment are uncalled for as the germane of consideration in the appeal is if both Sekhar and Tarak saw the assault and assailant. ( 15 ) NOW to begin the task, we will refer to the evidence of the witnesses as and when necessary. ( 16 ) SEKHAR Das (P. W. 17) has claimed that he along the Tarak (P. W. 20) and the deceased persons proposed to visit the brothel at Tablagali just before the night of Saraswati Puja. To translate into action the nocturnal expedition, they moved towards Tablagali. On reaching in front of Tablagali, both Gajanan and Badal in one hand and the prostitutes on the other fell out over the rates. In the midst of such altercation, Sunil and Wheel Hishu caught hold of Gajanan and Badal Das and accused Sambhu stabbed Gajanan and Badal the dagger. Those three persons were inside Tablagalit1. Those three persons also threatened us:. He has canvassed in his evidence that Gajanan Chakraborty and Badal Das cried for help after sustaining stab injuries on their persons.- The fighting between the deceased and the accused continued for 20 minutes. The assault was reported to the inmates of the house. This is all about his evidence regarding the incident. ( 17 ) THE evidence extracted above, therefore, requires to be weighed and scrutinised in order to find support from the evidence of his comrade Tarak Roy (P. W. 20), who was a party to the nocturnal expedition. ( 18 ) THE evidence of Tarak Roy (P. W. 20) falls on a different premises when he gave a publicity in his evidence about their attempt to save the deceased followed by threat the dire consequences and chase by the accused with the dagger exposed. They drove them to Kali temple. ( 18 ) THE evidence of Tarak Roy (P. W. 20) falls on a different premises when he gave a publicity in his evidence about their attempt to save the deceased followed by threat the dire consequences and chase by the accused with the dagger exposed. They drove them to Kali temple. Further, the absence of mutual fight between the accused persons and deceased for 20 minutes in his evidence when read along with the evidence of Sekhar (P. W. 17) discussed above gives a death blow to the case of the prosecution about their being the eye witnesses to the occurrence. It has been studiously canvassed rather emphasized by both Sekhar (P. W. 17) and Tarak (P. W. 20) that both of them informed the respective relatives about the occurrence, but the evidence of Gajanan (P. W. 7), Nanilal (P. W. 8) and Naba (P. W. 9) shows that the boot is on the other leg. The evidence of the relatives is in quite disharmony with the testimonies of Sekhar and Tarak. ( 19 ) THE identifying witnesses (P. Ws. 7 and 9) never whispered in their evidence that two persons informed them about the occurrence in the same night. The consistent testimonies are that one person (underscored by me) went of their house who informed about the murder of Badal and Gajanan. Gajanan (P. W. 7), Nanilal (P. W. 8) and Naba (P. W. 9) never spoke of any name to the police in course of identification or at any time thereafter. Had they been told of the names of the assailants, it would not escape from their statements while identifying the deceased. It is most legitimate to hold in the state of affairs that it would form the very core of their testimonies. ( 20 ) BESIDES, it passes all comprehension to believe that the identifying witnesses in a body had no reason to hold back or suppress the name of the assailants, if really told as they were overtaken by the incalculable loss for the incident. The claim put up by Sekhar (P. W. 17) and Tarak (P. W. 20)that they both went to the house of the deceased and reported the relatives about the incident is a far cry in wilderness. The claim put up by Sekhar (P. W. 17) and Tarak (P. W. 20)that they both went to the house of the deceased and reported the relatives about the incident is a far cry in wilderness. In addition to the above, the evidence of Tarak (P. W. 20) strikes of the very root of the prosecution case and has let the cat out of the bag when he says, TIJ had no talk the anybody regarding this incident". This evidence is not a sweeping statement nor a statement In isolation which could be ignored. It has inflicted enormous causality when considered with the evidence of Sekhar (P. W. 17) and the evidence of Tarak (P. W. 20 ). It is crystal clear that the name or names of the assailant or assailants were yet to see the light of the day. This itself is an earlier blush to the case of prosecution. ( 21 ) THE names of the accused persons were for the first time discovered by Ratanlal Mukherjee (P. W. 21), the 1. 0. who went to Kalighat Road and on examination of some witnesses in the afternoon of 26. 1. 1985, the names of the accused transpired. The testimony of Ratanlal Mukherjee, therefore, knocks out the bottom of the vain plea cultivated by the prosecution that Sekhar (P. W. 17) and Tarak (P. W. 20) saw the occurrence and the assailants. This evidence again stands to be repelled by the evidence of the eye witnesses when both of them said, None came out on hearing the shouts. None came from the adjoining area on hearing hue and cry during the occurrence. ( 22 ) IN the back-drop of the above, some of the witnesses examined by the police on 26. 1. 1985 but not examined during the trial had not even the remote chance or possibility to see the assault and the assailants. There is no flavour of truth in the evidence of Sekhar (P. W. 17) and Tarak (P. W. 20) as their evidence meticulously suffers from vital and significant omissions in their previous statements to the police. Both of them have claimed in their evidence during the trial that Sunil and Wheel Hishu caught hold of them and Sambhu stabbed the deceased. This part of the evidence is surprisingly absent in their statements while examined by the police. Both of them have claimed in their evidence during the trial that Sunil and Wheel Hishu caught hold of them and Sambhu stabbed the deceased. This part of the evidence is surprisingly absent in their statements while examined by the police. This itself, in our view, has shaken the foundation of the prosecution case. Besides, if one goes through the anatomy of the evidence of P. W. 17 and P. W. 20 Notwithstanding such vital omissions, it is not at all difficult to hold that the evidence of both Sekhar and Tarak is inherently incredible. ( 23 ) TWO circumstances will fortify such conclusion is it really possible for Sunil and Wheel Hishu to catch-hold of both Badal and Gajanan one and at the same time to become the target of macabre accused is it probable, according to the state of circumstances, that one of the deceased took the role of a passive spectator and waited patiently for the dagger blows likely to be inflicted on him seeing his other comrade when caught up the successive dagger assaults. 23. It is true that probability holds the field to decide the fate of a civil litigation. But criminal trial cannot depart from proof. Probability to the exclusion of proof can never be the domain of criminal jurisprudence. Probability and proof are two different streams flowing from evidence for adjudication of different trials civil and criminal. ( 24 ) THE evidence of Dr. Ashoke Maitra (P. W. 18), although opinion evidence could hardly be discarded when he says, Such injury may be caused if a person is caught-hold by other and pinned and the victim is struck by others the sharp cutting instrument. The word pinned (underlined by me) according to Web star: To hold fast or immobile. It suggests, therefore, that a victim when pinned obviously by the assailant for the assault, it would be more probable that his comrade instead of waiting there for the assault would make frantic effort to flee from the place. Therefore, the three accused persons caught hold of both Badal and Gajanan one and at the same time is incredulous. ( 25 ) P. W. 10 is Subal Ch. Sarkar who was in the patrol duty on the fateful night. Therefore, the three accused persons caught hold of both Badal and Gajanan one and at the same time is incredulous. ( 25 ) P. W. 10 is Subal Ch. Sarkar who was in the patrol duty on the fateful night. P. W. 11 is Sukumar Sadhu Khan the fruit seller who saw two persons lying injured in front of jewellery shop and sweet meat shop of Kanan respectively. Md. Harun Khan (P. W. 12) who was on stand by duty. Mustac Ahemed Khan is P. W. 13. Arun Ch. Satpati is P. W. 16 who was on patrol duty the Ratanlal P. W. 21. Ashok Kr. Bhattacharjee is P. W. 2 who drew up a sketch (Ext. 1) of the place shown by Ratanlal (P. W. 21 ). This sketch does not disclose the shops and residential place along Baragali nor the Kalighat Road. He is very much firm of his visit to the P. O. behind which there is, no sanctity of law. But there is no shred of obscurity in the evidence of Sekhar Das (P. W. 17) about a number of shops on either side of the road between Tablagali and Baragali which remained open on the night of occurrence. Dr. Apurba Nanda is P. W. 22 who examined Sambhu the accused for determination of his age as on the date of Occurrence. Purnima Mondal is P. W. 1 who has not supported the prosecution case. She denied in her evidence that she told police that she stood on the road along with three other females or that four persons came to their gali or the two persons liked her and Mira. Her statement was not duly proved 4 by Ratanlal Mukherjee (P. W. 21) and, therefore, her evidence does not come in aid of the prosecution. ( 26 ) THE learned Advocate Mr. Roy appearing for the accused persons has strongly canvassed that the account of the witnesses has not been corroborated either latently or patently which in the instant case is an absolute requirement The learned Advocate, Mr. Ghose appearing for the State has disputed the proposition of law. ( 27 ) IT is true that all the eye witnesses relating to the occurrence need not be examined in proof of the offence provided the evidence of the eye witnesses already examined is trustworthy, unimpeachable and reliable. Ghose appearing for the State has disputed the proposition of law. ( 27 ) IT is true that all the eye witnesses relating to the occurrence need not be examined in proof of the offence provided the evidence of the eye witnesses already examined is trustworthy, unimpeachable and reliable. But when the account of the ocular testimony is vacillating and suffers from embellishment, distortion and omission, corroboration in its essence becomes an integral part which may form the very basis of conviction. It becomes a rule of prudence. ( 28 ) SECTION 134 of the Evidence Act, 1872 does not make any clean sweep in adjudging the guilt in a criminal trial. Its application is irresistible only when the evidence does not suffer from any rents and fissures excepting some minor wear and wear. The evidence of Sekhar (P. W. 17) and Tarak (P. W. 20 ). cannot be treated to be an exception where corroboration could be safely excluded. The non-examination of some of the witnesses in the trial who were examined by Ratanlal Mukherjee (P. W. 21) in course of investigation could not be expelled from consideration. It is passing strange about the non- examination of shop owners, residents of the premises and the persons living in and around the place of occurrence or working for gain. ( 29 ) FURTHER, it emerges from the evidence that the police maintained a silence about the reason of their non-examination. The case of the prosecution loses its sting for the non-examination of the shop owners, residents of the locality and the persons living within the neighbourhood of Tablagali. Their testimonies would have been the duplication of another witness already produced does not stand to any reason. Their absence from the witness box has affected the prosecution case beyond repair. ( 30 ) IN amplifying the argument, Mr. Roy placed strong reliance on two decisions to discredit the testimonies of Sekhar (P. W. 17) and Tarak (P. W. 20)-Babuli v. State of Orissa and Slate of Orissa v. Brahmananda Nanda. The facts of the two decisions are not opposite to the facts of the case in hand but the point of law decided in both the cases can aid the claim of the appellants. The facts of the two decisions are not opposite to the facts of the case in hand but the point of law decided in both the cases can aid the claim of the appellants. ( 31 ) IN both the cases cited by the learned Advocate for the appellants, the court did not accept the testimonies as the name of the assailant was disclosed long after the occurrence. The instant case forms no exception as both the eye witnesses disclosed the name of the assailant long after the occurrence and that too after they were taken to the P. S. Their is pointed evidence that two criminal cases were pending against them. There could be least doubt that they were procured witnesses who came to canvass the cause of the prosecution. It has affected the very core of the prosecution case. ( 32 ) RETURNING to the judgment for a moment we can only hold that the questions being question Nos. 1, 2, 5 and 6 put to Biswanath Hui by the learned trial court are purely mechanical and disassociated from tangible incriminating materials. Similarly, the question Nos. 2, 5 and 6 put to Sambhu land on the same premises. There was no substantive evidence about the incriminating circumstances which could afford any scope to a court of law. to put such questions to the accused during their examination under section 313 of the Code of Criminal Procedure, 1973. The evidence must be substantive and incriminating which requires to be put to the accused during their examination in order to furnish explanation. ( 33 ) THE object of section 313 of the Code of Criminal Procedure, 1973 is to establish a direct dialogue between the court and the accused. If a point in the evidence is important against the accused and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. But here the questions above referred to are not at all evidence in the eye of law and as such there was no material circumstance which could be put to the accused. We cannot agree with the learned trial court about the mode and manner of examination of the accused. It is divorced from legal premises, its acceptability, therefore, is beyond question. We cannot agree with the learned trial court about the mode and manner of examination of the accused. It is divorced from legal premises, its acceptability, therefore, is beyond question. ( 34 ) OVER and above, the conclusion reached by the learned trial court that Purnima Mondal (P. W. 1) was a resident of 114/1, Kalighat Road is founded on insubstantial material. There is no cogent evidence on record that Mira Mondal was not available despite search as no local witnesses were examined to prove that the police went in search of Mira Mondal at her place of abode. Therefore, no credence could be placed to the case of the prosecution. ( 35 ) IN view of the foregoing reasons, the prosecution has failed to bring home the charges against any of the accused. The points raised are, thus, disposed of. ( 36 ) CONSIDERING the entire evidence on the record and the attending circumstances of the case we hold that the conviction of the appellants cannot be upheld. ( 37 ) CONSEQUENTLY, the appeal is allowed. The appellants are acquitted of the charges with which they were charged. The sentence. or fine is also set aside and be refunded if deposited. The accused appellants be released forthwith if not required in connection with any other case. Records of the court along with a copy of the judgment to go down to the trial court forthwith.