JUDGMENT P.G. Agarwal, J. 1. Heard Mr. J.M. Choudhury learned senior Counsel, assisted by K.M. Mazumdar and Mr. B.M. Choudhury, for the Appellants and Mr. F.H. Laskar learned Public Prosecutor. 2. This appeal under Section 374 Code of Criminal Procedure is directed against the judgment and order passed by the Sessions Judge Hailakandi on 20.05.03, whereby eight accused Appellants were convicted and sentenced for various periods for committing offences under Section 148, 302/201 read with Section 149 IPC. 3. The prosecution case, in brief, is that on 17.11.90, Manik Rabidas along with his wife Kutimoni Rabidas, daughter Ratna Rabidas and son Sibu Rabidas went out of the house to proceed to their in-laws house and were missing. Thereafter, a missing entry was given, but the entire family of four could not be traced out. On 20.11.90, one female dead body was picked up from the Barak River and subsequently the said dead body was identified to be that of Kutimoni Rabidas, wife of Manik Rabidas. The other three members of the family were never traced out nor their dead bodies were found. Police registered a case being Hailakandi P.S. Case No. 724/90 and after usual investigation police submitted charge sheet against the eight accused persons. The Trial Court framed charges under Section 148/302/201 read with Section 141 IPC. 4. During trial, prosecution examined as many as 10 witnesses and produced and exhibited 6 documents; 4 documents were brought on record by the defence. On conclusion of the trial, the learned Trial Court recorded order of conviction as aforesaid and hence the present appeal. 5. Ramlal Rabidas P.W. 1, is the elder brother of Manik Rabidas. He has deposed about the missing of the family of Manik Rabidas and subsequent recovery of the dead body of Kutimoni as stated above. P.W. 1 is however not an eyewitness. 6. Lipi Deb P.W. 2 is the doctor, who held autopsy over the dead body of Kutimoni and found the following injuries: An average built female aged about 19 years, Rigor mortis absent. Eyes closed. Mouth open, skin peeled off almost from all over the body. Body is as a whole pale, swollen, decomposed and putrefied at places soft tissues are missing on both the palms and soles. Eyes closed. Mouth open, skin peeled off almost from all over the body. Body is as a whole pale, swollen, decomposed and putrefied at places soft tissues are missing on both the palms and soles. An incised wound is present on the right side of the neck just above thyroid cartilage where the neck is completely severe on right side and the head is practically hanging on some soft tissues on the neck of the right side. Cranium and spinal canal - scalp health, vertebra is broken into 2 pieces. Membrane and brain place. Thorax - Wall decomposed, ribs and cartilage health. Pleurae pale Larynx and trachea - pale trachea is cut off just above the thyroid cartilage. Right and left lung pale. Heart - Chambers are empty. Vessels - empty. Abdomen - wall decomposed. Peritoneum pale. Ferrings - pale Esophagus cut off into 2 pieces. Stomach and Its content - pale and contains undigested food particles. Small intestine and its contents - pale and contains mucus secretion. Large intestine and its contents-loaded with ficul mitter. Liver-pale. Spleen - pale. Kedney - pale. Bladder-pale and empty. Uterus - non - pregnant. Muscles, bones and joints - as described already. Injuries - The injury is ante mortem and has been caused by heavy and sharp object. 7. We find from the evidence of the Doctor, that the entire body was decomposed and even swelling had taken place and according to the doctor the death took place 3 or 4 days prior to the post mortem. 8. In the opinion of the Doctor, the death was due to shock and haemorrhage, as a result of the incised injury sustained on the neck. The death of the deceased, as such has not been challenged. 9. Akaddas Ali Mazarbhuiya P.W. 3, has been declared hostile by the prosecution. The evidence of P.W. 4, is of no relevance, as he did not know about the incident; Whereas Joinul Haque P.W. 5, saw a dead body of a women floating in the river Barak. So far the evidence of Ainul Haque (P.W. 6) is concerned, we will refer to it at a later stage. Maninul Haque (P.W. 7) does not know anything about the incident and P.W. 8 Mrinmoy Bhattachaiya is the Magistrate, who had recorded the statements under Section 164 Code of Criminal Procedure P.W. 9 and P.W. 10 are the investigating police officers. 10. Maninul Haque (P.W. 7) does not know anything about the incident and P.W. 8 Mrinmoy Bhattachaiya is the Magistrate, who had recorded the statements under Section 164 Code of Criminal Procedure P.W. 9 and P.W. 10 are the investigating police officers. 10. On perusal of the impugned judgment, we find that the learned Trial Magistrate has recorded the order of conviction on the basis of the evidence of P.W. 6 and the circumstantial evidence. We may reproduce the observation of the Trial Court at paragraph 27 which reads as follows: This is all about the prosecution evidence. To sum up the entire evidence it is found that there is no eyewitness as to commission of crime by the accused persons and the whole case is purely of a circumstantial evidence. Sometimes circumstantial evidence becomes more forceful than the ocular evidence as it is said, "man may tell lie but not the circumstantial. Thus we find that there is no eyewitness to the occurrence and the case is based on circumstantial evidence. But the Trial Court has not recorded a single circumstance, which is appearing against the accused persons, except the fact that the family of Manik Rabidas was missing and that the dead body of one of the members was found floating in the river Barak. The only circumstance on which the Trial Court has relied heavily is the abscondence of the accused persons at the time of investigation. From the evidence on record, we find that after missing of this family of Manik Rabidas, a communal flare up took place in the District of Hailakandi and police was forced to trace out the missing family or the culprits. From the evidence, we do find that the accused persons were not found in their houses when police raided the same, but such abscondence cannot lead to the only conclusion that the accused persons are guilty of the offence. In the case of Dhananjay Chatterjee v. State of West Bengal (1994) 2 SCC 220 , the Apex Court observed, "We are conscious of the fact that abscondence by itself is not a circumstance, which may lead to the only conclusion consistent with the guilt of the accused, because it is also known that innocent persons on being falsely implicated may abscond to save themselves, but abscondence of any accused is certainly a circumstance which needs consideration and careful scrutiny. In the present case of the police, due to communal tension and administrative compulsion, were trying to find out the missing family members or nab the alleged culprit to at least show that they are on the job and as much, people became shaky and it is not only the accused persons, but the entire male members of the village were found absconding when police raided the said village. Hence, we are unable to hold that in view of the abscondence of the accused persons, their guilt or their involvement in the present incident can be established. 11. Now coming to the evidence of the prosecution witness Ainul Haque (P.W. 6), we find that during trial, the witness had deposed that while he was in his own house, police picked him up and asked him to show the house of one Motin, an accused in this case and thereafter enquired from him about the murder of Manik Rabidas's family, to which the accused replied that he does not know anything. At that stage, this witness of the prosecution, P.W. 6 was declared hostile and the statement recorded under Section 161 Code of Criminal Procedure was put to him and the witness was cross-examined by the prosecution as well as by the defence. The 164 statement, Ext. 2, was also brought on record through Magistrate, P.W. 8. 12. As regards the statement under Section 164 Code of Criminal Procedure, the plea of the witness is that, he was picked up by police and detained at the police station for three days and he was assaulted, as a result of which, he sustained severe injuries on his right knee and then he was brought to the Magistrate and asked to make the statement as tutored, and while the statement was being recorded, the police personnel were standing behind the screen and due to fear, he made the above statement. In support of the statement regarding sustaining injuries, a medical certificate was produced and exhibited. The medical certificate Ext. B, reads as follows: This is to certify that Md. Aynul Haque Laskar S/o Late Kalajab Mia Laskar of Vill. Sonapur, part I.P.O. Matijuri Hailakandi is under my treatment since 01.12.90 as he sustained multiple injury or the whole body (Blunt injury) following assault. The medical certificate Ext. B, reads as follows: This is to certify that Md. Aynul Haque Laskar S/o Late Kalajab Mia Laskar of Vill. Sonapur, part I.P.O. Matijuri Hailakandi is under my treatment since 01.12.90 as he sustained multiple injury or the whole body (Blunt injury) following assault. He as been advised to be in full rest for at least 30 (thirty) days restricted to bed only, and to continue all the medicine as prescribed. 13. The learned Trial Court has relied heavily on the statement recorded under Section 161 Code of Criminal Procedure to hold that this witness is an eyewitness of the occurrence and he is now resiling from the earlier statement in order to help the accused person and the statement recorded under Section 164 Code of Criminal Procedure as well as under Section 161 Code of Criminal Procedure may be made the basis for conviction. We have perused the statement Ext. 2 and find that this witness was never an eyewitness and he did not see any incident of assault etc. the relevant portion of the statement under Section 164 Code of Criminal Procedure reads as follows: Around 10.30 A.M. two Saturdays before this Saturday i.e., on the day when curfew was clamped in Hailakandi town, I had gone to Matijuri Bazar. Going to Matijuri, I found Tazuddin hurriedly closing his shop. While closing his shop, Tazuddin was also telling Lilu, who had been sitting in his shop, that he would finish of the Ravidas family that day itself, saying that, Tazuddin and Lilu Mian went away. I then went to the Forest Office. That evening I came to know that Tazuddin and Lilu Mian, taking along Motin Hussain. Latu, Dalai, Zahir and Sangal, had gone to Makam Tilla; that having gone there, when they had found Maniklal Ravidas and his family members in the act of leaving, they had attacked and killed all of them by cutting. Having heard that I started for Mokam Tilla, I found Tazuddin, Lilu, Matin, Hussain, Latu, Dalai, Zahir and Sangal near there. They were armed with dao, lathi, dagger etc. and these were stained with blood. They told me that if I told anyone about the occurrence, they would finish me off. Coming back I told Lilu's father Abdul Jalil about the occurrence and asked him to go to the police station. They were armed with dao, lathi, dagger etc. and these were stained with blood. They told me that if I told anyone about the occurrence, they would finish me off. Coming back I told Lilu's father Abdul Jalil about the occurrence and asked him to go to the police station. At that Abdul Jalil, Latu, Zahir said that there was no need to go to the P.S. and that they would arrange the matter themselves. Then they offered Rs.100.00 to Shangal on condition that he down the dead bodies into the Katakhal River. I heard that sangal took away the four dead bodies by Sameer's boat and threw those into the Katakhal River. 14. Thus, we find that P.W. 6 has neither seen the assault or killing of all the members of Ravidas's family, nor he had seen the disposal of the dead bodies of any one. He merely came to know about it and heard about it. The fact of knowing or hearing about the incident cannot be treated as an account of an eyewitness by any stretch of imagination. Scope and ambit of the use of statements recorded under Section 161 Code of Criminal Procedure has been settled by the Apex Court in a catena of decision wherein it has been held that the statement recorded under Section 161 IPC may either be used for the purpose of corroboration or for the purpose of contradiction as provided under Section 145 of the Evidence Act. The statement under Sections 161 or 164 Code of Criminal Procedure cannot be treated as circumstantial evidence. We may refer to the decision of the Apex Court. Samsul Kanwar v. Sate of Uttar Pradesh AIR 1995 SC 178 . 15. In order to verify the truthfulness of the statements of P.W. 6 that he was kept in detention or police custody and he was assaulted by police and forced to make a statement as dictated by the police, we chose to look into the case diary which the Trial Court failed to discharge. In the case of Khatri v. State of Bihar AIR 1981 SC 1068 , the Apex Court made a detailed discussion as regard the use of case diary and in the subsequent case of State of Bihar v. PP Sarma (1991) Supp. 1 SCC 222 the Apex Court reiterated its earlier view. In the case of Khatri v. State of Bihar AIR 1981 SC 1068 , the Apex Court made a detailed discussion as regard the use of case diary and in the subsequent case of State of Bihar v. PP Sarma (1991) Supp. 1 SCC 222 the Apex Court reiterated its earlier view. The case diary admittedly cannot be used for the purpose of basing conviction, but the Court may use the same to verify the truth or falsity of a fact. Similar view was taken in a later case of Samsul v. State UP AIR 1995 SC 178 . The case diary shows that the facts narrated in the statement of P.W. 6 recorded under Section 164 Code of Criminal Procedure came to the knowledge of police from their own sources on 29.11.90 and thereafter, police raided the village in order to apprehend the persons named in the source statement; but none of the were found in their houses. Subsequently, on the basis of their own source information, the Petitioner witness P.W. 6 was picked up and taken to police station. On 20.01.90 he was kept in the police lockup for safe custody, and on the next day, he was interrogated. The witness made a statement stating that he does not know anything. The interrogation was closed. However, late in the evening, he was again interrogated and 161 statement was recorded and thereafter on 12.12.90, he was forwarded to Court for recording statement under Section 164 Code of Criminal Procedure. We thus, find force in the plea of P.W. 6 that he was wrongfully detained at the police station although he was not an accused in this case and his statement was procured. 16. Further, after recording of the statement under Section 164 Code of Criminal Procedure, the witness was not released by the Court, instead, he was handed over back to the investigating police officer. There is Courts' order as to the handing over of the accused to P.W. 8 and endorsement of the investigating officer that he received back the custody of P.W. 6 from Court on 01.12.90, which goes to show that the investigating officer was present in the Court at the time of recording statement under Section 164 Code of Criminal Procedure. There is Courts' order as to the handing over of the accused to P.W. 8 and endorsement of the investigating officer that he received back the custody of P.W. 6 from Court on 01.12.90, which goes to show that the investigating officer was present in the Court at the time of recording statement under Section 164 Code of Criminal Procedure. The learned Trial Court has explained this aspect of the matter stating that although non release of P.W. 6 from the Court was irregular, but it was done to protect the life of P.W. 6 as there was communal tension in the District. However, we find from the case diary that after taking of P.W. 6 back from the Court, the police did not send him to his house, but released him at the police station itself. 17. In view of the above, we hold that this is a case of no evidence. Although for young four lives have been lost, the accused persons cannot be held responsible for the same unless there is evidence or materials against them. We therefore, allow this appeal and set aside the order of conviction and sentence entered into by the Trial Court and acquit all the eight accused persons. The Appellants be set at liberty forthwith, if not wanted in any other case. Appeal dismissed.