J. Sangma, J.— The three appellants - (1) Abdul Rouf, (2) Siddique Ali, and (3) Nuruj Ali brought this appeal from the judgment dated 30.186 passed by Sri A. Sarkar, Sessions Judge, Karimganj, in Sessions Case No.52 of 1986. The learned Sessions Judge convicted them under sections 302/34 IPC for committing the murder of one Abdul Jalil, and sentenced each of them to RI for life. No fine was imposed in addition to the RI. 2. The charge framed on 6.1.87 against the appellants was as follows:-"I, Sri A. Sarkar, Sessions Judge Karimganj, hereby charge you - (1) Abdul Rouf, (2) Siddique Ali and (3) Nuruj Ali as follows:- that you on or about 3rd day of August, 1984 at village Dukhipur under Ratabari PS in furtherance of common intention committed offence punishable under section 302/34 IPC within the cognizance of Court of Sessions. Charge explained to the accused who pleaded not guilty." 3. The appellants and PW 1 to 6 were residents of the same village (Dukhipur). The deceased was a residents of village Balicherra. FIR was given by the deceased's elder brother Abdul Kalam of Balicherra; but sub­sequently he also died, so the prosecution could not examine him at the trial. Nobody was named as accused in the FIR. According to prosecution, PW 1 and 3 were the eye witnesses; so besides examining under section 161 CrPC, the IO got their statements recorded also by a Magistrate under section 164 CrPC. The Magistrate who recorded the statement under section 164 was not examined. In all, the prosecution examined 8 PWs which include the two eye witnesses (PW 1 and 3), the doctor (PW 2) who did the autopsy of dead body, the scribe of FIR (PW 7) and the IO (PW 8). 4. The doctor (PW 2) who did the autopsy and the 2 eye witnesses (PW 1 and 3) were examined on 9.1.87. The 'eye witnesses' did not support the prosecution and relised from the statement which they earlier made before the IO and a Magistrate. So, the prosecution declared them hostile and cross examined. PW 3 was also cross examined by the defence. A compl­aint being made for giving false evidence, the Chief Judicial Magistrate sent PW 3 to hazot. The 'eye witnesses' did not support the prosecution and relised from the statement which they earlier made before the IO and a Magistrate. So, the prosecution declared them hostile and cross examined. PW 3 was also cross examined by the defence. A compl­aint being made for giving false evidence, the Chief Judicial Magistrate sent PW 3 to hazot. On the following day, PWs 1 and 3 made application to the Sessions Judge stating that they would now speak the truth and praying for examining them once again. The learned Sessions Judge accepted the application and examined them as CWs 1 and 2 on 12.1.87. When on 21.1.87, the prosecution examined PWs 4 to 8 and closed the prosecution case, the trial Court recorded the defence statement of the appellants under section 313 CrPC. The defence did not examine DWs. 5. On 30.1.87, the learned Sessions Judge delivered the judgment. He accepted the evidence of doctor (PW 2) as to the injuries and cause of death. Then saying that a Court has to logically decide a case by exercising judicial justice' like Krishna Iyer, J. of Supreme Court and Lord Denning, he found that all the three accused persons were running away in highly suspicious manner with identified or unidentified weapons in their hands and the PWs definitely told the names and identified the appellants. On this finding, he concluded that even if the evidence of CWs 1 and 2 be eliminated from consideration, the prosecution, by preponderating evidence, has proved the case against the appellants "to the hilt and beyond any reasonable scope of doubt", that the appellants, in furtherance of common intention commuted culpable homicide amounting to murder. Accordingly, he convicted the appellants under sections 302/34 IPC and sentenced each of them as aforesaid. Hence, this appeal. 6. This Court by order passed on 10.3.87 in Misc Case No. 91 of 1987, granted bail to the appellants pending determination of the appeal. 7. Mr. AFG Osmani, learned counsel for the appellants argues that nobody was named in the FIR and having failed to catch the real culprits, the prosecution, on after thought, falsely dragged the appellants to the case because there was an enmity between PW 4 and the appellant Nuruj Ali. 7. Mr. AFG Osmani, learned counsel for the appellants argues that nobody was named in the FIR and having failed to catch the real culprits, the prosecution, on after thought, falsely dragged the appellants to the case because there was an enmity between PW 4 and the appellant Nuruj Ali. He pointed out that for not supporting the prosecution case, PW 3 was sent to hazot and thereby the prosecution campelled PW 1 and 3 to give evidence against the appellants by getting them examined as CWs 1 and 2. On this premises, he submitted that there was no evidence to prove the charge and the learned Sessions Judge committed grave error in thinking that the prosecution by preponderating evidence proved the charges to the hilt and beyond reasonable scope of doubt. He submitted that in any view the conviction is illegal and liable to be set aside. To rebut this contention, Mr. HN Sarma, learned Public Prosecutor, strongly submitted that the evidence of PWs clearly indicated that the appellants alone were the persons who dealt the fatal blows to Abdul Jalil. He also submitted that the evidence of CWs 1 and 2 are also admissible because the defence had cross examined and failed to break their evidence. He, therefore, supported the conviction. We, therefore, now recast the evidence on record to decide the appeal. 8. According to the FIR the occurrence took place at 8 AM of 3.8.84 (Friday). The FIR was lodged on the next day (4.8.84j. The informant was the elder brother of the deceased Abdul Jalil. He lives in village Balicherra and came to Dukhipur, where occurrence took place, after getting information. He has stated in the FIR that he went to the place of occurrence and found his brother dead on the field with injuries caused by sharp weapon and that from the people who assembled there he also came to know that at the time of occurrence Sunur Ali (PW 1) alone was there with the deceased and other people came there on hearing Sunur Ali's shouts. As the informant died, he could not be examined at the trial; but the FIR has been exhibited (Ext.2) and proved by its scribe, PW 7 (Rafiquddin). PW 2, Dr. As the informant died, he could not be examined at the trial; but the FIR has been exhibited (Ext.2) and proved by its scribe, PW 7 (Rafiquddin). PW 2, Dr. H. Sanyashi, who performed the post mortem of the deceased on 5.8.84 found injuries on the deceased and gave the opinion and those injuries were caused by repeated piercing by sharp weapon and that death was due to cardio respiratory failure as a consequence of shock and haemmorrhage due to multiple injuries which were ante mortem. In cross examination he stated that from the injuries found and recorded, it could be presumed that the attack was from the front. PW l(Sunur Ali)who, according to prosecution, was the eye witness, admitted that he made a statement before a Magistrate under section 164 CrPC. He stated that Abdul Kalam, Mabibur Rahman, Ataur Rahman and Jalil came to the house of Tejai Mia to settle land dispute between Tejai Mia and Nuruj All, but because Nuruj Ali refused to come, the meeting failed and Abdul Jalil was going back to his own house. After this, he stated that sometime after Abdul Jalil called him to come and save his life as he was being done to death and he PW 1 at that time focused his torch light and saw accused Nuraj Ali but could not say what instrument he had in his hand and that Nuruj Ali rebuked him not to come to the place of occurrence. He stated that he also saw two. other persons chasing Abdul Jalil. Then he stated that the occurrence was at the paddy field of Makay Mia and as he raised alarm others came and he went with Abdul Kalam, Abdul Rakib, Mabibur Rahman, Suleiman, Tejai Mia and Motiur Ali. After this, he stated that in spite of focusing light from his torch light he could not recognise the culprits. At this, he was declared hostile. In cross examination by prosecution, he stated that he found the deceased by the side of a 'nala' near his own house and he found Nuruj Ali inside Makei's 'Khat' at a distance of 6/7 nals from the place of occurrence, with weapon of assault in his hand which looked like Jatha but he did not tell Kalam, Rakib, Tejai, Mabibur Rahman, Motahir and Jalll's brother (informant) as to who assaulted the deceased. PW 3 (Abdul Kalam) was also said to be eye witness. He stated that in the evening he heard Sunur Ali's shouts that a marpit was going on, and on going there, saw dead body of Jalil, but all the villagers present at the place of occurrence did not know who assaulted the deceased. At this stage, he was also declared hostile. In cross examination by prosecution, he admitted to have deposed before police and before a Magistrate (under section 164 CrPC), but he stated that he did not depose before him (Magistrate) that Sunur Ali had told him that Abdul Rouf, Siddique Ali and Nuruj Ali (appellants) chased and assaulted the deceased with Jatha. He also denied that he saw three people assaulting the deceased and that in focus of Sunur Ali's torch light, be could recognise the appellants while they were running towards their own houses. When defence cross exam­ined, he stated he gave deposition before a Magistrate as instructed by Kalam (informant). PW 4 (Tejai Mia) stated that on his asking, Abdul Jalil came to their village and went to call Nuruj, but as Nuruj did not come, the 'Bichar' failed; so Abdul Jalil came to his house and when at sunset, he left and was going back to his own house Sunur Ali shouted that Abdul Jalil was being done to death. He stated that he immediately went and found Sunur Ali and Abdul Kalam who then reported to him that the appellants committed murder and that with focus of Sunur Ali's torch light he saw Siddique Ali going back to his own house with a Jatha in hand and saw Abdul Rouf and Nuruj also running towards their own houses. In cross examination by defence, he stated that Sunur Ali did not announce the name of persons who committed the crime. PW 5 (Suleiman) lives at a distance of 150/200 nals from the place of occurrence. He stated that by focusing his torch light, he saw Siddique Ali returning to his house with instrument in his hand and saw 2 other persons running away from the place of occurrence whom Sunur Ali (PW 1) identified as Abdul Rouf and Nuruj and that on his asking Abdul Kalam (PW3) and Sunur Ali (PW 1) told him that those 3 persons committed murder. In cross examination by defence, he denied the suggestion that he did not tell those things to the IO. PW 6 (Abdul Rakib) stated that on coming to the place of occurrence he could know that Abdul Jalil was done to death and that he saw Nuruj Ali and 2 other persons who escaped from the place of occurrence. In cross examination by the defence, he stated that on his asking Sunur Ali named the appellants as murderers. PW 8 (Sri RRSen) is the OC of Ratabari PS who registered the case at 8.15 AM of 4.8.84 under section 302 IPC showing the accused as unknown. He himself as IO, investigated the case. In examination-in-chief, he has only stated that he registered the case, prepared the inquest report, sketch map, made seizure of articles, arrested the accused persons, examined the witnesses and got the statement of PW 1 and 3 recorded by Magistrate under section 164 CrPC. He did not state what PW 1 and 3 stated to him when he examined them under section 161 CrPC. It is only in cross examination by defence that he told that they (meaning PW 1 and 3) stated before him that they found three persons assaulting Abdul Jalil and that he (PW 1) was cautioned by Nuruj Ali not to come to that place and that PW 3 told him chat he (PW 3) heard Sunur All's shouts that Abdul JaliJ was being done to dsath but in that shout he (Sunur Ali) did not announce the names of the accused. After that, he told that PW 3 stated to him that Sunur Ali told witnesses that the 3 named accused persons committed murder of Abdul Jalil with the help of J itha. So, his evidence does not of help to the prosecution. 9. From the evidence of PWs we find that PW 1 alone was present near the place when the occurrence took place. Other PWs including PW 3 came to know only from him. After declaring hostile, PW 1 and 3 were cross-exami­ned by prosecution but the prosecution did not put question either to PW 1 or PW 3 that they had earlier stated to the IO that they saw the appellants dealing blows to Abdul Jalil and that they saw them running away from the place of occurrence after the assault. After declaring hostile, PW 1 and 3 were cross-exami­ned by prosecution but the prosecution did not put question either to PW 1 or PW 3 that they had earlier stated to the IO that they saw the appellants dealing blows to Abdul Jalil and that they saw them running away from the place of occurrence after the assault. As already stated in examination-in-chief the IO also did not say that when he examined under section 161 CrPC he had told him that they saw the appellants dealing the blows and running away after that. If the prosecution say that PW 1 and 3 are eye witnesses but declare them hostile, section 145 of the Evidence Act permits the prosecution to ask leading question. The Public Prosecutor in cross-examination must suggest to them that they earlier deposed before the IO that they saw the occurrence etc. Similarly, the IO also must say in examination-in-chief that PW 1 and 3 deposed before him that they saw the occurrence. This is necessary to show that they were eye witnesses. 10. In our opinion the evidence is far from being satisfactory. The learned Sessions Judge was wrong in thinking that the prosecution has proved the case by preponderating evidence. It may be stated that the term 'prepondera­ting evidence' are used only in civil case. It cannot be applied in a criminal case, more particularly, in a case under section 302 IPC. The learned Sessions Judge did not consider the evidence of CW 1 and 2 and in our opinion rightly because they came to give second evidence out of fear after PW 3 went to hazot from where he was brought to give second evidence This evidence is contrary to the evidence which they gave as PW 1 and 3. So, on applying the principle that if one evidence goes in favour of the accused and the other against them, the one in favour of the accused has to be accepted. 11. In the result, we find that the prosecution has failed to prove the case beyond reasonable doubt. The appellants, therefore, are entitled to get the benefit of doubt. Accordingly, we allow the appeal by setting aside the conviction and acquit them of the charge. Their bail bonds are discharged.