V. Dutta Gyani, J. — This appeal has been directed against the judgment dated 3Oth September, 1991 passed by the learned Sessions Judge, Kamrup, Guwahati in Sessions Case No.57 (K-G)/89, thereby the trial Court while acquitting the co-accused Muslumuddin and Sakur Ali, convicted the present appellant of offence punishable under section 302 IPC and sentencing him to undergo imprisonment for life. Aggrieved by his conviction and sentence, the appellant has preferred the present appeal. 2. Briefly stated, prosecution case was that on 3rd May, 1987, the dead body of Tufan Dewani was found lying along the village road with multiple incised wound. It was brought home, an FIR, Ext. 5 was lodged by Md. Bakhtar Ali, PW 4, on the basis of which a case under section 302 IPC was registered and taken under investigation. During the course of investigation sniffer dogs were employed by the investigating agency and on the basis of these evidence the accused who had a long standing property dispute and log-horns in civil litigation were arrested. Certain incriminating articles, such as, Ganjee, Paijama and pair of Hawai Chappal were seized from the house of the accused and these articles were sent to the Forensic Science Laboratory, as per its report the Ganjee was found to be stained with human blood. On completion of investigation, the accused appellant along with others, since acquitted, were charge sheeted and tried for the above offence. Their defence was one of simple denial of their complicity in the crime. The trial Court while acquitting two others found the appellant guilty and convicted him as already noted above. Hence this appeal. 3. Learned counsel appearing for the appellant has raised the following points : that the circumstances relied upon by the trial Court are not firmly established nor do they form such a chain as to uncrippling point to the accused appellant as to the perpetrator of the crime; even in the circumstances as relied upon by the trial Court, are taken on their face value yet, they are not compatible with the only hypothesis of guilt of the accused-appellant; lastly, these circumstances as relied upon by the trial Court have not been put to the accused in his examination under section 313 CrPC. In the instant case, as has been noted by the trial Judge, there is no eye witness to the occurrence. In the instant case, as has been noted by the trial Judge, there is no eye witness to the occurrence. According to the trial Court, the prosecution case hinges on the following circumstances : "(1) That there was a long standing enmity between accused Sabur Ali and the deceased Tufan Dewani. (2) That there litigations between the parties and the deceased got a decree against accused Sabur Ali in a land case. (3) That prior to the incident accused Sabur Ali had threatened the deceased Tufan Dewani that he will not be able to enjoy the fruits of the decree and he will be put to death. (4) That the dead body was found lying at a distance of about two furlongs from the house of the accused. (5) Accused Sabur Ali is the own brother of the deceased Tufan Dewani. The two other accused persons Muslumuddin and Sakur Ali are the son of Sabur Ali. On the date of occurrence they were in their house during the day time, but soon after recovery of the dead body, they absconded. (6) The post crime conduct of the accused persons. (7) The dog squad visited the place of occurrence and thereafter went straight ' to the house of the accused persons. (8) As pointed out by the dog, two does, blood stained Ganjee, mud stained Hawai Chappal etc. were recovered from the house of the accused persons. (9) Sereologist found human blood on the seized Ganjee of the accused. (10) Accused Sabur Ali and Muslimuddin were found hiding in the house of PW Khabiruddin. (11) Accused Sabur Ali made an extra judicial confession before the witnesses admitting his guilt." 4. Now taking up the dog tracking evidence first, the Supreme Court had occasion to consider the same in Abdul Razak Murtaza Dafadar vs. State of Maharashtra, AIR 1970 SC 283 and declined to give any concluded opinion on dog tracking and its admissibility. In Jit Singh vs. State of Punjab, 1988 Crl LJ 39, the evidence of the dog in tracing the rod was rejected because there Was no evidence to show whether the dog was earlier taken to the scenting points and as has been observed by the Supreme Court in Abdul Razak's case (supra), even if this evidence is taken as admissible yet, it is not ordinarily of much weight. The learned trial Judge while dealing with the dog tracking evidence has not taken into consideration the inherent pitfalls involved in the relying upon such a place of evidence. 5. The other circumstance relates to the abscondence of the accused. The Supreme Court, by now in umpteen cases has pointed out that mere abscondence which can be explained on several counts, as a circumstance can not easily relied upon in order to lead any Court to the conclusion that accused made himself scares and concealed his presence because he was involved in the commission of a crime. The Code of Criminal Procedure prescribes the manner in which an accused can be declared absconding. Mere fact that a person is not available to the police when searched, would not necessarily render him an absconder. The IO in his evidence, has stated that the accused appellant along with his sons was produced at Chhaygaon on 6.5.87. The incident is dated 3.5.87, and the time is 11.30, with barely two days intervening, it can hardly be said to be a case of absconding on the part of the accused, as erroneously assumed by the trial Court. 6. Learned counsel appearing for the appellant has also argued that this fact of abscondence has not been put to the accused in his examination under section 313 CrPC, it can not therefore relied upon or used for basing an order of conviction. 7. Adverting to the examination of the appellant under section 313 CPC, the question as put to the accused reads as follows : "Qns: It is out in evidence that after the occurrence you and your son Muslim were hiding in the house of Jabiruddin. Will you say anything ? Ans: No, I was not hiding." If it was the prosecution case that the accused having committed the crime, in order to conceal himself had taken shelter with one Jabiruddin, nothing was easier for the prosecution then to examine the said Jabirudddin, who was not been examined and there is not an iota of evidence to suggest that even during investigation the said Jabiruddin was examined by the IO. Firstly, the circumstance of abscondence is not firmly established nor has it been put to the accused in the manner required by law. Firstly, the circumstance of abscondence is not firmly established nor has it been put to the accused in the manner required by law. It could not therefore be used against the appellant, as has been held by the Supreme Court in Samin Banu vs. State of Maharashtra, AIR 1976 SC 577. The other incriminating circumstance relied upon by the trial Court is the long standing dispute over property existing between the parties, the civil litigation that had been pending, these circumstances are innocuous. What makes it incriminating is the alleged threat held out by the appellant to the deceased that he would not allow to reap the fruits of his decree. Although the learned trial Judge has enumerated the alleged intimidation as a part of the evidence as an incriminating circumstance, a reading of the impugned judgment reveals that it has not been adverted to by the learned Judge. The only evidence on the point is that of PW 4 arid 6, to quote their own words : "Then Subur went on saying openly, What is the use of the decree ? Do not go for ploughing or I shall finish you. Then accused Subur went on saying that he would cut my father. Accused Subur fled away after the occurrence." Taking these statements on their face value yet, there is nothing to indicate that the alleged threat were addressed to the deceased. What is points out is that the accused Went on openly telling others that he would not allow his brother to reap the fruits of the decree. Both this witnesses are close relations of the deceased. If the threats were openly held as testified by PW 4 and 6, some persons other than the relations from the village could well have been examined by the prosecution to prove this threat. The interest of these witnesses is writ large in the whole prosecution story. Even if this threat is taken as it is yet, it is an empty threat. The interest of these witnesses is writ large in the whole prosecution story. Even if this threat is taken as it is yet, it is an empty threat. The learned trial Judge has not sought any corroboration from the independent reliable sources nor is such corroboration is available on record, as is well known, enmity is a double edged sword, and litigation amongst brothers is not uncommon, it was only on dog tracking evidence that all the inmates of the house, were roped in by the police and the evidentiary value of such dog tracking has already been discussed above. 8. True it is, that post crime conduct of an accused is relevant under section 8 of the Evidence Act and the learned Judge of the trial Court placing reliance on a judgment of the Supreme Court as reported in AIR 1977 SC 2274 (Piara Singh vs. State of Punjab) has concluded on the basis of extra judicial confession allegedly made by the accused as follows : "The above mentioned circumstances unerringly point to the conclusion that Tufan Dewani was killed by his brother accused Sabur Ali and none else." While placing reliance on Piara Singh's case (supra) the learned trial Judge has overlooked one salient fact, namely, that the confession was made to the President of the Village Defence Party and its Secretary. The question that should have been addressed by the learned trial Judge is whether the President and Secretary were persons in authority or in dominating position. Why should an old man past 70 in the village confess to the President of the Village Defence Party, there is no earthly reason that he would confide in the President or the Secretary of the Village Defence Party for giving out his heart. The element of authority and domination is so apparent that the confession, extra judicial confession even if made can not be said to be voluntary. 9. The error of law into which the trial Court has fallen is apparent from the conclusion arrived at, as quoted above. Even if subsequent post crime conduct of an accused can be considered, it is only as a relevant factor and not as a conclusive fact as has been erroneously concluded by the learned trial Judge. 10. 9. The error of law into which the trial Court has fallen is apparent from the conclusion arrived at, as quoted above. Even if subsequent post crime conduct of an accused can be considered, it is only as a relevant factor and not as a conclusive fact as has been erroneously concluded by the learned trial Judge. 10. The Supreme Court in Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 SC1622 has considered the following five principles, aptly described as the Panchasil, on circumstantial evidence: "The following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) mere must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have-been done by the accused." Applying this test to the case at hand, it cannot be said that the prosecution has succeeded in bringing home the charge of the accused. Firstly, the circumstances can not be said to have been firmly established nor are they consistent only with the hypothesis of the guilt of the accused, nor can they be said to be conclusive nature and tendency. 11. Adverting to the charge as framed by the trial Court, it needs to be noted that there is no substantive charge framed against the accused under section 302IPC. Having acquitted two co-accused, it does not stand to reason that the appellant could have been convicted with the aid of section 34 IPC when there ' remains none to share the common intention. Having acquitted two co-accused, it does not stand to reason that the appellant could have been convicted with the aid of section 34 IPC when there ' remains none to share the common intention. It is not the prosecution case that apart from the accused put on trial there were other unknown or unnamed accused with whom the present appellant had shared his intention of causing death of Tufan Dewani. The Supreme Court in similar circumstances, has quashed the conviction in the following cases: (l) AIR 1956 SC 116 (Willie William) Slaney vs. State of Madhya Pradesh) (2) AIR 1966 SC 1874 (Rajwant Singh vs. State of Kerala) (3) AIR 1994 Crl LJ 919 (State of West Bengal vs. Vindu Lachmandas Sakhrani alias Deru). 12. As a result of the foregoing discussion, this appeal deserves to be allowed, it is accordingly allowed. The conviction and sentence as passed by the learned trial Court are liable to be set aside, they are accordingly set aside. The appellant is acquitted of the charge framed against him. He be set at liberty forthwith. The appeal stands allowed.