ARUN KUMAR BHATTACHARYA, J. ( 1 ) THE hearing stems from an appeal preferred against the order of conviction and sentence passed by the Id. Additional Sessions Judge, 5th Court, Alipore in Sessions Trial No. 1 (5)92 on 10. 2. 93. ( 2 ) SHORTLY put and shorn of details, the prosecution case is that on 3. 10. 1979 at about 15. 00 hrs on receipt of a telephonic information from one Omkar Singh that one Shaktipada Chakraborty, aged about 25/26 years, of 20/5, Pottary road, was stabbed on Pottary Road in front of Durga Maidan by accused baidyanath Ghosh, Binoy Das, Samir Ojha, Adhir Mondal and others of that locality at about 13. 30 hrs. and that the victim was removed to N. R. S. Hospital where he was declared dead. S. I. Bireswar Chakraborty recorded a G. D. being entally P. S. G. D. E. No. 204 of the said date followed by his going to the P. O. to verify the authenticity of the telephonic message and recording the statement of informant Omkar Singh and registering Entally P. S. Case No. 376 dated 3. 10. 1979 against those accused persons after coming back to the P. S. After completion of investigation, chargesheet was submitted against the accused persons. ( 3 ) THE case ended in conviction and sentence against other accused persons and the trial could not be held against the present accused Baidyanath as he was a long absconder. ( 4 ) THE said accused Baidyanath was charged under sections 302/34 and 201 ipc. ( 5 ) THE defence case, as suggested to P. Ws. 1 and 2, is that the victim Shaktipada was involved in a "marpit". The accused has been falsely implicated in the case due to a pending litigation between his father and the mother of the deceased who is the landlady of his father. ( 6 ) 28 witnesses were examined on behalf of the prosecution, while none was examined on behalf of the defence, and after considering the facts, circumstances and materials on record, the Id. Court below found the above accused guilty under section 302/34 IPC, convicted him accordingly and sentenced him to suffer imprisonment for life and to pay fine of Rs. 5000/- i. d. to R. I. for two years more on 10. 2. 93. Court below found the above accused guilty under section 302/34 IPC, convicted him accordingly and sentenced him to suffer imprisonment for life and to pay fine of Rs. 5000/- i. d. to R. I. for two years more on 10. 2. 93. ( 7 ) BEING aggrieved by and dissatisfied with the said order of conviction and sentence, the convict has preferred the present appeal. ( 8 ) ALL that now requires to be considered is whether the Id. Court below was justified in passing the above order of conviction and sentence. ( 9 ) BEFORE we open the discussion and indeed as paving the way for it, it appears to be necessary to point out that the sentence of death or of life-imprisonment being an extreme penalty, adding sentence of fine is hardly calculated to serve any social purpose, as was observed by the Apex Court in air 1987 SC 692 and 1977 Cr. LJ 992 (SC ). So the said sentence of fine cannot be said to be in conformity with the above observation. ( 10 ) NEVERTHELESS, out of the above 28 witnesses, eye-witnesses P. W. 1 (victim's mother) and P. W. 2 (wife of victim's elder brother), P. W. 27 (autopsy surgeon) and P. W. 28 (first I. O.) are vital. As many as 6 witnesses viz P. W. 3, p. Ws. 13 to 16 and P. W. 18 were declared hostile by the prosecution, 4 witnesses viz P. W. 17, P. W. 21, P. W. 23 and P. W. 24 either expressed their ignorance or cannot recollect the incident of murder, P. W. 20 simply stated that there was a murder, 3 witnesses viz P. W. 8, P. W. 11 and P. W. 12 learnt about the incident either from P. W. 1 or P. W. 2 or P. W. 11, but there being no such evidence on the part of the alleged informant that they informed them as above, their evidence is virtually hearsay, and the rest are formal witnesses. ( 11 ) ACCORDING to the evidence of P. W. 1 (deposed on 4. 11. 92), her son shaktipada was murdered by accused Baidyanath, Samir, Binoy, Becha and adhir. She stated that about 6/7 years back in the month of Aswin (October), on one Wednesday at about 2. ( 11 ) ACCORDING to the evidence of P. W. 1 (deposed on 4. 11. 92), her son shaktipada was murdered by accused Baidyanath, Samir, Binoy, Becha and adhir. She stated that about 6/7 years back in the month of Aswin (October), on one Wednesday at about 2. 00 p. m. on hearing an alarm raised by P. W. 2, she came out of her house and found accused Baidyanath Ghosh, Samir Ojha, binoy Das, Becha and Adhir yielding knives, bhojali etc. and her son Shaktipada running towards Kamardanga in bleeding condition. On seeing her, those parsons proceeded towards Pottary Road. She went to the house of Shaktipada's father-in-law at Kamardanga and therefrom being accompanied by Shaktipada's mother-in-law (P. W. 12) to N. R. S. Hospital where she found her son lying. Her neighbour P. W. 16 initially called her but she could not hear. It is her evidence in cross-examination that on hearing the shout of P. W. 2 she came out of the house while P. W. 2 was standing in front of the doorstep and then both of them came to the road and found the accused persons proceeding along pottary Road yielding weapons but she could not see her son. So the story that on seeing her the accused persons proceeded towards Pottary Road or she saw her son running towards Kamardanga in bleeding condition is nullified by her own evidence. The above time as stated by her appears to be inconsistent with the FIR as also the evidence of P. W. 2 who deposed that the incident took place at about 1. 30 p. m. ( 12 ) P. W. 2 stated that on 3. 10. 1979 at about 1. 30 p. m. her brother-in-law shaktipada was murdered. At that time while she was cleaning utensils at kaltala, on hearing a shout of a woman (P. W. 16) of their locality "shaktir maa" and "don't kill him" she stood up and found accused Baidyanath, armed with a sword and accused Binoy, Adhir , Samir, Sudhir and Becha armed with knives assaulting Shaktipada with their weapons and Shaktipada crying "don't assult me more, don't assult me more", she ran to inform P. W. 1 and both she and P. W. 1 proceeded towards the gate. She saw the accused persons washing their weapons by the roadside tap followed by their proceeding towards Bengal pottary and Shaktipada proceeding towards Sil Lane in injured and bleeding condition. She followed her brother-in-law but could not see him. She reported the incident to the mother-in-law of Shaktipada (P. W. 12 ). She claims that pottary Road is visible from their Kaltala. The P. O. , as reflected in the formal fir (Exhibit 1/3), is on Pottary Road in front of Durga Maidan opposite to premises No. 19/1, Pottary Road i. e. in front of the Dispensary of Mani Doctor (P. W. 28 ). The incident, as deposed by P. W. 2, took place at a distance of 25/30 cubits from the entrance gate of their residence towards its left. The topography of their residence, as disclosed from the evidence of P. Ws. 1 and 2, is : Kali temple facing towards north inside the compound on the right hand side of the entrance gate. The room of P. W. 1 is at a distance of about 5/6 cubits from that of her son intervened by a courtyard. There was a cistern of about 2 cubits in height and tap on the said courtyard, the house of Mani Doctor is a big three storeyed building with compound walls on all sides which is 25/30 cubits away from the residence of P. W. 1 and the Corporation's School is situated on the opposite side of Mani Doctor's house intervened by the road. The main gate of the residence of P. W. 1 is made of wood fixed with a brick boundary wall of about 5 ft. in height. The northern and southern boundary walls are made of tin of about 3 ft. in height. P. W. 2 has denied the suggestion that one cannot see outside their house unless one climbs on an elevated place. She claims that she had not seen the incident climbing on the cistern or water tank which is quite contradictory to her earlier statement before the Court. In other words, had the P. O. been visible standing at Kaltala there would have been no necessity of climbing on the said water tank. A witness who is giving different version at different times is not trustworthy and rightly the Id. In other words, had the P. O. been visible standing at Kaltala there would have been no necessity of climbing on the said water tank. A witness who is giving different version at different times is not trustworthy and rightly the Id. Court below did not place reliance upon her testimony in regard to witnessing the alleged incident standing at Kaltala. That apart, it is her specific evidence that on hearing the shout "shaktir Maa" and "don't kill him" raised by a woman of their locality she stood up and witnessed the incident. The said woman, as revealed from the evidence of P. W. 1, is P. W. 16 who was declared hostile and there is nothing to suggest in her evidence that she shouted as above. Consequently, in the absence of any evidence regarding shout the story of standing up and witnessing the alleged incident by P. W. 2 from Kaltala does not stand. P. W. 2 stated that on seeing her, the accused persons abused her filthily and threatened her with dire consequences if she came out, that the accused persons washed their weapons by the roadside tap and the victim was proceeding towards Sil Lane in injured and bleeding condition which is belied by P. W. 1 who was with P. W. 2 but there is no such evidence on her part. In other words, had the accused persons abused here filthily threatened her with dire consequences and washed their weapons by the roadside tap and the victim was proceeding towards Sil lane in injured and bleeding condition, it would obviously have been seen by p. W. 1 also. It is the evidence of P. W. 1 that on seeing her the accused persons proceeded towards Pottary Road and after coming out on the road she could not see her son. Moreover, in the absence of any earlier statement under section 161 Cr. PC on her (P. W. 2) behalf, as is evinced from the evidence of P. W. 28, her evidence that Shakti was crying "don't assault me more" or she saw the accused persons washing their weapons by the roadside tap may be excluded from consideration on account of contradiction due to omission on vital points. PC on her (P. W. 2) behalf, as is evinced from the evidence of P. W. 28, her evidence that Shakti was crying "don't assault me more" or she saw the accused persons washing their weapons by the roadside tap may be excluded from consideration on account of contradiction due to omission on vital points. As per evidence of P. W. 8, after coming home, he learnt from his wife (P. W. 2)and mother (P. W. I) that those accused persons committed murder of his brother which also may be kept outside consideration since neither there is any such evidence on the part of P. W. 1 or P. W. 2 that they informed him as above nor there is any such earlier statement under section 161 Cr. PC on his behalf as is evident from the evidence of P. W. 28, thereby resulting in contradiction due to omission on vital point. ( 13 ) OUT of the four circumstances based on which the Id. Court below convicted the above accused, three have been discussed above, the last one being abscondence of the accused. ( 14 ) MERE abscondence or disappearance of the accused by itself cannot form the basis of conviction. It is no evidence by itself and it may only lend weight to other evidence ( AIR 1963 SC 74 ). Even innocent person may when suspected on grave crime be tempted to evade arrest, such being the instinct of self-preservation ( AIR 1974 SC 1871 ). When a finger of false accusation is raised, an innocent person may behave like a guilty one to avoid a false charge or harassment. Here, indubitably the above accused was an absconder from the inception for a long time. But in the absence of any other evidence, as discussed above, such abscondence is no ground for holding him guilty for commission of the alleged crime. ( 15 ) IN the premises, in the light of the above discussion, the prosecution cannot be said to have brought home the charge against the above accused beyond all reasonable doubt, and as such, he is found not guilty. ( 16 ) ACCORDINGLY, the appeal be allowed on contest. The order of conviction and sentence against the above accused passed by the Id. Additional Sessions judge, 5th Court, Alipore, 24-Parganas (South) in Sessions Trial No. 1 (5) 92 be set aside. ( 16 ) ACCORDINGLY, the appeal be allowed on contest. The order of conviction and sentence against the above accused passed by the Id. Additional Sessions judge, 5th Court, Alipore, 24-Parganas (South) in Sessions Trial No. 1 (5) 92 be set aside. The accused Baidyanath Ghosh stands acquitted of the charge under sections 302/34 and 201 IPC,and he be set at liberty at once. The above accused be discharged from bail-bond. ( 17 ) ALAMATS, if any, be destroyed after the period of appeal is over. ( 18 ) LET a copy of this judgment along with the LCR be sent down at once to the Id. Court below. Appeal allowed.