This appeal is directed against the judgment dated 9.5.95 passed by the Additional Sessions Judge, Dibrugarlv in Sessions Case No.34 (D) of 1991 convicting the accused appellant under section 302r I PC and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs.500/- in default further rigorous imprisonment for two years. 2. Smti Aruna Gogoi sister of Jyoti Gogoi (since deceased lodged an FIR on 13.3.90 before the Officer-in-charge of Joypur Police Station informing that on 13.3.90 at about 7.30 AM the appellant and 22 others came in search of her brother Jyoti Gogoi. They entered into his house and assaulted her, set fire in the house. Thereafter the accused persons broke open the door of her house, dragged her brother Jyoti Gogoi to the courtyard and cut him with dao, khukuri, lathi etc causing instataneous death. FIR was lodged with the police at 10 AM on the same day. Police registered a case and commenced investigation. During investigation police made inquest over the dead body and thereafter sent the dead body for post mortem examination. On being identified, doctor held the post mortem examination over the dead body of the deceased. Police also seized some article including a dao from the possession of Kanak who was one of the accused before the trial Court. Police thereafter submitted charge sheet under section 147/148/149,448/436/302, IPC. Charaes were framed. 3. During the trial learned Additional Sessions Judge examined as many as 9 witnesses for the prosecution including the doctor who held the post mortem examination and also the Investigating Officer. Defence examined none. According to the prosecution there were three eye witnesses, namely PW 1, PW 2 and PW 7. After recording of evidence, statements of the accused were recorded under section 313, CrPC. Learned Additional Sessions Judge found 22 accused persons not guilty and acquitted them. Learned Judge however found two accused persons, viz Rohini Gogoi and Gautam Borah guilty under section 448 and convicted and sentenced them accordingly. The apellant was found guilty under section 302, IPC. After hearing on the point of sentence learned Additional Sessions Judge sentenced him to suffer RJ for life. Hence the present appeal. 4. We have heard Mr. C. Baruah, learned counsel for the accused appellant and Mr. D. Goswami, learned Public Prosecutor for the State. 5. Mr. The apellant was found guilty under section 302, IPC. After hearing on the point of sentence learned Additional Sessions Judge sentenced him to suffer RJ for life. Hence the present appeal. 4. We have heard Mr. C. Baruah, learned counsel for the accused appellant and Mr. D. Goswami, learned Public Prosecutor for the State. 5. Mr. Baruah submits before us that the learned Additional Sessions Judge erred in law and on facts in convicting the appellant under section 302, IPC and sentencing him to suffer RI for life. According to him the accused appellant ought to have been given the benefit of doubt as the prosecution could not prove the case beyond doubt to convict the appellant under section 302, IPC or in other sections of the Penal Code. Mr. D. Goswami, learned Public Prosecutor on the otherhand has supported the conviction. According to him the evidence of PW 1, PW 2 and PW 7 are enough to award the conviction under section 302, IPC and therefore the appeaj deserves dismissal. 6. PW 1 in her evidence before the police stated that the accused persons came to her house and when asked they answered that there were many things to say. All the accuseds were armed with deadly weapons like dao, lathi etc in their hands. They cut the wall of the house and entered the house through the door and pulled out Jyoti who was hiding under the bed. Gautam gave one blow and knocked him down, Kanak Bora gave blow on the head with his mit dao, Dulal snatched the dao from Kanak and gave 3 blow on Jyoti's neck and also hit him on his head. Thereafter, the accused burnt Jyoti's house and left. However, in cross examination she stated that she told the writer of the ejahar that Gautam had given one blow and knocked him down, Kanak had given dao blows on the head and the other had given-blows on the head by stick. She also told police that after beating Jyoti, Ranj it set fire to Jyoti's house. 7. PW 7 Nipen Gogoi in his deposition stated that he saw the incident from the verandah of his house. Gautam Borah and Rohini Gogoi pulled his brother Jyoti and brought him towards courtyard. Being afraid he did not say anything. She also told police that after beating Jyoti, Ranj it set fire to Jyoti's house. 7. PW 7 Nipen Gogoi in his deposition stated that he saw the incident from the verandah of his house. Gautam Borah and Rohini Gogoi pulled his brother Jyoti and brought him towards courtyard. Being afraid he did not say anything. He also told that Dulal Sonowal brought the dao from Kanak's hand and hit Jyoti's neck and went away. Thereafter Rohini Gogoi set fire to Jyoti's house and left. 8. PW 5 is the Doctor who held the post mortem examination. In post mortem examination he found 2 incised wounds on the neck, one incised wound on the left knee and one incised wound on the left forearm. He also found undigested rice in the stomach. According to him the age of the injury was 38 to 40 hours approximately. He held the post mortem examination at 10 AM on 14.3.90. 9. Taking into consideration the evidence of the Doctor (PW 5) it is to be seen whether the evidence of prosecution witnesses, namely, PW 1, PW 2 and PW 7 can be relied upon. 10. Mr. Baruah submits that there are contradictions of the evidence of the witnesses. The story as narrated at the time of lodging of FIR was different from the evidence stated at the trial Court by the witness. Over and above there are vital omissions in the statement of the prosecution witnesses amounting to contradiction and therefore, the evidence given by the prosecution witnesses cannot be relied upon and no conviction is sustainable on the basis of such doubtful evidence. Mr. Baruah has pointed out that PW 1 stated in the FIR that the accused persons first set fire into the house of deceased Jyoti and thereafter entered into her house by breaking the door and dragged her brother deceased Jyoti Gogoi and cut him with dao, khukuri, lathi etc. But in her evidence before the trial Court she stated that Jyoti was first killed and thereafter the accused burnt the house. The FIR was lodged immediately after the occurrence, that is, on 13.3.90 and the evidence of the PW 1 was recorded on 11th day of March, 1992, that is, after two years from the date of occurrence. Such contradiction cannot be viewed with suspicion. Therefore, we do not find any force on the submission of Mr. The FIR was lodged immediately after the occurrence, that is, on 13.3.90 and the evidence of the PW 1 was recorded on 11th day of March, 1992, that is, after two years from the date of occurrence. Such contradiction cannot be viewed with suspicion. Therefore, we do not find any force on the submission of Mr. Baruah in this connection. 11. PW 1 Aruna Gogoi in the examination-in-chief stated that Kanak gave a blow on the head with his mit dao. The appellant Dulal Sonowal snatched the dao from him and gave three blows on the deceased's neck and hit him on the head. In cross examination she admitted that "I had also told the writer of the ejahar that Gautam had given one blow and knocked him down, Kanak had given dao blows on the head and the others gave blows on the head. I had also told Daroga that after beating Jyoti, Ranjit had set fire to Jyoti's house while returning home." Therefore from her evidence it cannot be said that the appellant gave dao blows on the neck of the deceased. 12. PW 2 is a newly wedded wife of one of the brothers of PW 1. She was yet to be familiar with the names of the persons. Her marriage took place only a week before the incident. She herself told the trial Court that "I do not know the names of those boys. Today I see on the dock, and they are from our village pointing at accused Gautam. I came out to the courtyard from inside. Aruna also talked to the accused. At once some of them broke the wall of the house and a few others pulled out Jyoti from inside and Gautam gave one blow with his lathi and knocked him down on the ground, and accused (pointing at Kanak Bora) gave one blow to Jyoti above his ear with a mit dao. Accused (pointing at Dulal) took the dao from Kanak's hands and gave one blow on Jyoti's neck and almost separated it from the body. Jyoti died instantly." This witness did not tell the names of the persons at the time when her statement was recorded. There was no TIP. The accuseds were identified by this witness on the dock at the time of I recording her evidence in the trial Court. Jyoti died instantly." This witness did not tell the names of the persons at the time when her statement was recorded. There was no TIP. The accuseds were identified by this witness on the dock at the time of I recording her evidence in the trial Court. It will be unsafe to accept the evidence of this witness. Because it is well established principles of law that identification of the accused at the time of trial cannot be accepted as a correct identification and on the basis of such identification it will not be safe to convict a person. 13. PW 7 is the elder brother of the deceased Jyoti. He stayed in a separate house, a little away from the place of occurrence. He claimed to be eye witness and stated before the trial Court that he saw the incident from the verandah of his house. He also stated that "Gautam Borah and Rohini Gogoi pulled my brother Jyoti and brought him towards the courtyard. I did not say anything more. Out of fear I did not say anything. Apart from Siva Gogoi, Rohini and Gautam, I saw Bimal Borah. Pradip Gogoi, Ghana Gogoi, Dulal Sonowal, Debeswar Phukan. Rohini Phukan were standing in the courtyard. Bringing Jyoti to the courtyard Dulal Sonowal brought the dao from Kanak Bora's hands and hit Jyoti's neck and went away. After the people had left, Rohini Gogoi set fire to Jyoti"s house and left." In cross examination he admitted that his house was separated by a bamboo fancing. The defence made a suggestion that he did not state before the police about the appellant's cutting Jyoti's neck. This fact was drawn to the attention of the Investigating Officer (PW 9). He said that Dulal Sonowal had given dao blow on the head. He did not say that dao blow was given on the neck. Aforesaid witness did not say that he saw smoke in Jyoti's house, and that Rohini was going out from the house. 14. This is no doubt an omission. It is well established principle of law that all omission are not contradictions. The statement under section 161 being brief, failure to mention a particular fact due to not being asked about it is not contradiction. 14. This is no doubt an omission. It is well established principle of law that all omission are not contradictions. The statement under section 161 being brief, failure to mention a particular fact due to not being asked about it is not contradiction. But if any statement which is so material and vital in connection with the conviction of an accused is omitted or if what is actually stated is irreconcilible with what is omitted it amounts to contradiction where the omissions are vital. Omission of vital point ought to be held as contradiction. In other words it will appear that omission normally cannot be used for a contradiction unless there can be doubt by necessary implication to be part of statement recorded. 15. In the present case PW 7 made a statement that he saw the appellant giving dao blow on the neck of the deceased. This was a very important piece of statement and an witness was expected to make this statement before the police ' under section 161. CrPC. As this was omitted in our opinion this omission amounts to contradiction. Therefore, his evidence also should be viewed with suspicion in this regard. 16. Defence has thrown a suggestion that the occurrence did not take place at the time as stated by the prosecution. According to the defence the deceased died on the previous evening. According to the defence there was a volley ball play on the previous day and the deceased took away the ball and cut it and some people were furious and some persons assaulted the deceased. This suggestion was denied by PW 1. But the Doctor's evidence in this regard is somewhat important. He stated that the age of the injury was 38 to 40 hours from the time of post mortem examination which will be exactly on the previous evening, on the date when according to the prosecution the incident took place. This portion of the evidence goes to support the defence suggestion. Besides the Doctor also found undigested rice in the stomach. Normally in the month of March in the morning people in that locality was not likely to take rice. This portion of the evidence goes to support the defence suggestion. Besides the Doctor also found undigested rice in the stomach. Normally in the month of March in the morning people in that locality was not likely to take rice. The normal practice was to take rice in the evening and this experience of undigested rice in the stomach as indicated in the postmortem report and the evidence of PW 5 may indicated only that the deceased took food in the evening and immediately thereafter he died. This piece of evidence also supports the defence suggestion. 17. Taking all evidence together we find that the evidence produced by the prosecution is too meagre to convict a person in a serious offence like 302,1PC, and the accused is entitled to get the benefit of doubt. 18. Therefore, in our opinion the conviction and sentence awarded by the learned Additional Sessions Judge was not correct. Accordingly, we set aside the conviction and sentence and set the accused appellant at liberty.