S.Barman Roy, J.- This appeal is directed against the judgment dated 12.6.86 passed by the learned Sessions Judge, North Tripura, Kailashahar in Sessions Case No.33 (NT/K) of 1985 convicting the appellant under section 302 , IPC and sentencing him thereunder to undergo RI for life. 2. The case, in short, is that on 23.2.81 at about 4.05 AM, PW 8, Smti Sitarani Debnath lodged an information at Kailashahar Police Station stating, inter alia, that night show exhibition of the cinema was over at about 1 AM on that very day and her brother-in-law (husband of the elder sister) had a tea stall in front of that cinema hall. After the exhibition of the night show cinema was over, her brother-in-law (since deceased) closed his shop and completed the daily account of his shop till about 2.30 AM and thereafter he returned home. After his return, deceased along with his mother-in-law and one Sukumar were taking their dinner while the third elder sister of the informant was serving them with food. At that time the informant along with her younger sister Mono was gossiping in the very same hut after taking their dinner. At about 2.45 AM appellant came there and from outside the house called for the deceased and requested him to come out. Deceased replied that he was taking his food yet the appellant insisted deceased to come outside the hut. Appellant even threatened the deceased. Yet the deceased did not go out. At that time the appellant was heard saying that he was cutting the curtain of the door and accordingly requested the deceased to come out and he would be cut in the like manner. Upon hearing this deceased went out in front of the door of the house without washing his hands and at that time appellant asked him to come after washing his hands. His hand was not washed as he was halfway through his dinner. However, deceased told the appellant that he was taking his food and he had not finished it and accordingly deceased requested the appellant to say whatever the appellant had to say. Despite this, the appellant asked deceased to come outside and accordingly deceased went to the road in front of the shop of the deceased. Simultaneously, PW 9,11 and one Sukumar also followed the Deceased and went near the road. Despite this, the appellant asked deceased to come outside and accordingly deceased went to the road in front of the shop of the deceased. Simultaneously, PW 9,11 and one Sukumar also followed the Deceased and went near the road. PW 11 is the mother of the informant and PW 9 is an elder sister of the informant. The moment deceased went to the road, appellant stabbed the deceased in his abdomen with a dagger. At that time the other accused Sankar Dhar (since acquitted) and another unknown Manipuri boy were seen there with lathis in their hands. After being so stabbed, deceased cried out. Simultaneously, the appellant and other miscreants fled away towards West on a motor cycle. PW 4, Sri Krishna Bahadur Gurung, who was the Motor Transport Officer of the Police Reserve, was informed about the incident and PW 4 provided them with a jeep for taking the deceased to the hospital. The Medical Officer-in-charge of the hospital declared the deceased dead after he was produced at the hospital. On the basis of the said information, an FIR under section 302 IPC was registered at the Kailashahar Police Station against the appellant and the other accused Sankar Dhar. After usual investigation police submitted charge sheet against the appellant and the other accuseds. In course of time the case was committed to the Court of the learned Sessions Judge, North Tripura, Kailashahar. It must be mentioned here that for a long time the present appellant was not available for trial and accordingly trial was proceeded with and concluded separately against other accused Sankar Dhar. On conclusion of the trial Sankar Dhar was acquitted. Subsequently, when present appellant could be arrested, the trial was completed against him. Learned trial Court upon perusal of the materials on record framed charge under section 302/34 IPC. The appellant pleaded not guilty to the said charge. In course of the trial in all 13 (thirteen) PWs were examined on behalf of the prosecution. On behalf of the appellant no witness was examined. His case was of complete denial of the prosecution. 3. We have heard Mr. D.Sarkar, learned counsel for the appellant and Mr. S. Das, Public Prosecutor for the State. 4. We have already narrated the gist of the FIR lodged by PW 8. It appears from the evidence on record that PWs 8. His case was of complete denial of the prosecution. 3. We have heard Mr. D.Sarkar, learned counsel for the appellant and Mr. S. Das, Public Prosecutor for the State. 4. We have already narrated the gist of the FIR lodged by PW 8. It appears from the evidence on record that PWs 8. 9 and 11 are the only eye witnesses of this case. The prosecution story appearing from the evidence of these three eye witnesses is more or less similar to the story disclosed in the FIR. For the sake of brevity we do not like to discuss the evidence given by these three witnesses in great detail. If it sufficient to observe here that the story as disclosed in the evidence of these three witnesses is exactly similar to the story given in the FIR. 5. From the evidence of these three witnesses it appears that the cinema hall is situated in a village in a temporary shed. Exhibition of night show cinema normally lasts upto 12 moon. It is unbelievable what PWs stated that exhibition of cinema lasted till 1 AM. This is most unusual that deceased being an owner of a small tea stall situated in front of the said cinema hall would continue preparing his accounts till about 2.30/2.45 AM. This suffers from what may be called inherent improbability. Other aspects of the inherent improbability are that all the alleged eye witnesses were taking dinner at that unearthly hour of night at about 2.45 AM. According to the PWs all the inmates of their house were awake for the deceased to return from the shop and to take food together. It needs to be mentioned here again that house of the deceased was situated just behind the tea stall. Undoubtedly the tea stall of the deceased was a small tea stall situated in front of a village cinema hall of temporary nature. It must also be mentioned here that at that time of giving evidence, age of PW 8 was about 18 years. As per the FIR, her age at the time of occurrence was about 14 years. For a small girl of such a tender age, it is most unusual that she would remain awake till 2.45 AM to take dinner. From this circumstance it appears to us that none of them in fact saw the occurrence. As per the FIR, her age at the time of occurrence was about 14 years. For a small girl of such a tender age, it is most unusual that she would remain awake till 2.45 AM to take dinner. From this circumstance it appears to us that none of them in fact saw the occurrence. PW 11 was aged about 65 years when her deposition was recorded. So at the time of occurrence she was aged about 61 years old. For an old lady of such advanced age, it is most unusual that she would remain awake till 2.45 AM to take her dinner. These are some of the circumstances for which we are unable to place any reliance on their testimony. But the most important aspect of the case is that at the time of occurrence deceased was taking his dinner. He could not complete his dinner. Half way during the dinner, he was called outside his hut and was stabbed by the appellant. It appears that deceased died instantaneously. Soon after that he was taken in a jeep to the hospital where the Medical Officer-in-charge declared him dead. At the time of occurrence his hands were not even washed and were unclean with food particles. Process of digestion stops the moment a man dies. Therefore, in view of the Medical Jurisprudence, the food articles should have remained undigested as he dies virtually at the spot soon after he took food. But from the post mortem report we find that the contents of the intestine/stomach were digested food. 6. Prosecution story is that when deceased was halfway through his dinner, he was called out and killed in front of his own house. Time was 2.45 AM. For any Indian this time is little unusual for taking dinner. Normally a person residing in the North Eastern India is expected to take his dinner within about 10 A.M. Deceased was shifted to hospital immediately after the incident where he was found dead by the doctor. Therefore, it is clear that the deceased either breathed his last at the place or occurrence itself or on his way to hospital from the place of occurrence. If the prosecution story is really true that the deceased took his dinner immediately before his death, his stomach should have contained undigested food material. Digestion takes quite some time. Therefore, it is clear that the deceased either breathed his last at the place or occurrence itself or on his way to hospital from the place of occurrence. If the prosecution story is really true that the deceased took his dinner immediately before his death, his stomach should have contained undigested food material. Digestion takes quite some time. That apart, process of digestion ceases to function after death. In Modi's Medical Jurisprudence and Toxicology 21st Edition at page 185 it has been observed that “Food has been seen in the stomach remaining undigested in persons who received severe head injuries soon after their meal and died within twelve to twenty four hours afterwards. In one case the food consisting chieftly of rice and dal (pulse) remained in the stomach for about forty hours without undergoing digestion." 7. If the prosecution story is really true that the deceased took his immediately before his death, existence of undigested food material in his stomach is expected. But the doctor who held post mortem examination on his dead body could find only digested food material. From this it seems to us that the deceased never took his dinner at 2.45 AM as claimed by the witnesses. 8. In this connection we find that the Supreme Court in a quite number of cases determined time of death of deceased relying on nature of the contents of the stomach or intestine. We may refer in this connection to one such decision in Ram Narain Singh vs. State of Punjab, (1975) SCC (Cri) 571. In paragraph 9 of this decision Supreme Court held that "medical evidence of Dr. Wallia shows that undigested food was found in the stomach of the deceased and according to him deceased must have taken his food only five minutes before his death or at the most within half an hour of his death. Doctor's evidence, therefore, clearly shows that he must have taken his food at 8 PM which is also the usual time when the villagers take their food". Relying on this circumstance, Supreme Court came to %s conclusion that the incident must have taken place at about 8 PM and it belied version of the two eye witnesses that the occurrence took place in their house at aboat 6.30 PM. 9. Relying on this circumstance, Supreme Court came to %s conclusion that the incident must have taken place at about 8 PM and it belied version of the two eye witnesses that the occurrence took place in their house at aboat 6.30 PM. 9. From the aforesaid decision of the Supreme Court it appears to us clear that if in the stomach of a dead man undigested food material is found, it must be presumed that he died at the. most within about half an hour since he took his food last. Therefore, the contents of stomach/intestine of a dead man must contain undigested food material if he dies within half an hour after he took food. 10. Likewise the Supreme. Court in Raghunandan vs. State of UP, (1974) SCC (Cri) 355 determined the time of death/occurrence on the basis of nature of the contents of the stomach/intestine. We need not give the details of the facts of that case. It is sufficient to observe here that the nature of the contents of the stomach or intestine rendered immense assistance to the Supreme Court to h determine or atleast estimate the time of death of the deceased. 11. In Charan Singh vs. State of Punjab, (1974) SCC (Cri) 735 it was held by the Supreme Court in paragraph 1 8 as follows : "The first information report about the present occurrence was lodged promptly and this is apparent from the fact that a copy of the first information report was received by the Judicial Magistrate concerned at Ludhiana at 8.12 PM the same evening. We are not impressed by the suggestion that the occurrence took place not at 5 PM but much earlier. According to the post mortem examination reports, the stomach of each one of the two deceased persons was empty at the time of the post mortem examination. Normally a vegetable diet containing mostly farinaceous food as usually taken by an Indian does not leave the stomach completely within six to seven hours after its ingestion (see page 151 of Modi's Medical Jurisprudence and Toxicology, Sixteenth Edition). Normally a vegetable diet containing mostly farinaceous food as usually taken by an Indian does not leave the stomach completely within six to seven hours after its ingestion (see page 151 of Modi's Medical Jurisprudence and Toxicology, Sixteenth Edition). If the occurrence had taken place at 2 or 3 PM as suggested on behalf of the accused appellants, the mid day meals usually taken by the villagers at about 11 AM would still be in their stomachs and the same would not have been empty at the time of the post mortem examination. The fact that the stomach of each of the deceased persons was empty lends assurance to the prosecution version that the occurrence took place at about 5 PM." 12. From the above discussion it is evident that stage of digestion of the food material or the nature of the contents of the stomach or intestine can be the basis to estimate time of death or the time of occurrence depending upon the circumstances of the case. In the instant case the prosecution case is that the deceased returned home at 2.45 AM after closing his tea stall situated in front of his house and started taking dinner along with other inmates of the house. Further case of the prosecution is that all the inmates of the house were awake till 2.45 AM to take their dinner. There was no special occasion in that house for the members of the family to remain awake till 2.45 AM. Yet the prosecution claims that inmates of the house remained awake till about 2.45/3.00 AM and witnessed the occurrence. But from the post mortem report we find that in the stomach of the deceased doctor found only digested food material. This, therefore, indicates that if the incident really took place at about 2.45/3.00 AM, deceased surely took his food atlest 4/5 hours before the occurrence. It, therefore, indicates that the deceased perhaps took his dinner around 10 PM. It is also usual for an average-Indian to take his dinner within 10 PM. If the deceased, in fact, did not take his dinner at 2.45/3.00 AM and perhaps he took his dinner at about 10 AM, it is natural that there was no occasion for the members of his family to remain awake till 2.45 AM and to take dinner and to witness the occurrence. 13. If the deceased, in fact, did not take his dinner at 2.45/3.00 AM and perhaps he took his dinner at about 10 AM, it is natural that there was no occasion for the members of his family to remain awake till 2.45 AM and to take dinner and to witness the occurrence. 13. Of course, the doctor, who held post mortem examination, stated in his evidence that during autopsy partly digested food material was found in the stomach of the deceased. It must be observed here that the doctor who conducted the autopsy was not examined in this case as witness. One of his colleagues gave evidence before the trial Court on perusal of the post mortem report prepared by the doctor who actually held the post mortem examination. But the post mortem report clearly indicates that the stomach of the deceased contained only digested food material. This shows that there was an unfair attempt on the part of the prosecution to improve their case and lead evidence that the stomach of the deceased contained partly digested food material. But this is totally belied by the contents of the post mortem report which shows that the stomach of the deceased had, only digested food material. 14. It is most unusual that exhibition of night cinema show in rural cinema hall made of split bamboo would continue upto 1 AM. It is a matter of common knowledge that exhibition of night cinema show does not continue beyond 12 moon. It is equally unusual that a small tea stall owner like the deceased would remain busy in preparing his daily accounts till 2.45 AM. Prosecution story is that after the exhibition of the night cinema was over at about 1 AM, deceased remained busy with preparing his account of the tea stall for that day till about 2.45 AM. It must be repeated here again that the tea stall of the deceased was situated in a village in front of a temporary cinema ball. It is also unbelievable that all the members of the family of the deceased would remain awake till 2.457 3.00 AM to take their dinner along with the deceased including an old lady aged about 61 years and a young girl aged about 14 years, at that unearthly hour of the night. It is also unbelievable that all the members of the family of the deceased would remain awake till 2.457 3.00 AM to take their dinner along with the deceased including an old lady aged about 61 years and a young girl aged about 14 years, at that unearthly hour of the night. The prosecution story is, therefore, substantially belied by the nature of the contents of the stomach of the deceased found in course of autopsy. Circumstances of the case also belied that the deceased and his family members were taking food at that unearthly hour of the night so that the members of his family may become eye witness of the occurrence. 15. As per section 3 of the Indian Evidence Act a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Therefore, the veracity of the prosecution evidence has to be tested on the touch stone of probability. Everything that glitters is not necessarily gold. When we test the veracity of the prosecution story on the touch stone of probability as required by or under section 3 of the Evidence Act, we are constrained to hold that it is necessarily improbable that exhibition of night cinema show in temporary cinema hall situated a village would continue upto 1 AM or the deceased remained busy in preparing his account of a small tea stall situated in front of such cinema hall till about 2.45 AM or that the deceased and the members of his family took dinner at that unearthly hour of the night If this part of the story is disbelieved being untrustworthy, claim of the eye witnesses that they saw the incident would turn to be false. 16. The eye witnesses introduced this concocted and fabricated story that exhibition of night cinema continue till 1 AM and that the deceased returned home from the tea .stall situated in front of his own house at 2.45 AM after completing the accounts of the said tea stall and that deceased along with other members of his family took dinner at that unearthly hour of the night in order to become eye witnesses. In all probability it seems to us that the deceased was perhaps sleeping in his tea stall though took his dinner within 10 PM and some unknown miscreants murdered the deceased and none saw the occurrence. 17. In view of our aforesaid findings and conclusions, we are unable to sustain the impugned judgment and accordingly the same is set aside. In the result, the appeal is allowed.