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2008 DIGILAW 638 (GAU)

Promode Das v. State of Tripura

2008-08-29

BROJENDRA PRASAD KATAKEY, UTPALENDU BIKAS SAHA

body2008
JUDGMENT Utpalendu Bikas Saha, J. 1. A man of a very poor family consisted of his wife and two minor children was brutally murdered. The appellants were later nabbed and tried for the offences. The trial Court convicted them under Section 302 read with Section 34 IPC and sentenced them to suffer R.I., for life and also to pay a fine of Rs. 1,000/- each, in default to suffer further S.I. for three months. They were also convicted under Section 448 read with Section 34 IPC and sentenced to suffer R.I. for one year and to pay a fine of Rs. 500/- in default to suffer further S.I for 15 days. Against the said decision vide judgment dated 16.1.2002 passed by the learned Additional Sessions Judge, West Tripura, Agartala in Sessions Trial No. 148 (WT7A) of 1998, the appellants have preferred the present appeal under Section 374 Cr. P.C. 2. We have heard Mr. P.K. Biswas, learned Counsel along with Mr. A.K. Benerjee and Mr. M. K. Biswas, learned Counsel for the appellants and Mr. D. Sarkar, learned P.P for the respondent. 3. Deliberation of material facts of this case, in a brief manner, is necessary before considering the contentions raised. Smt. Mina Rani Shil, the wife of the deceased, the informant, (P.W 18), lodged an F.I.R on 3.11.1995 at about 9.45 p.m. with Maharajganj Bazar Outpost that on that day at about 7.00 p.m. when she was sleeping along with her husband, Shri Asit Kumar Shil alias Bhanu alias Gunu and two small children Sri Ashim Shil (P.W. 10) and Smt. Soma Shil (P.W. 11) in their hut after taking meal, someone asked her from the outside to know whether one Paritosh had come or not which she answered in negative. Thereafter accused Khokan Deb of her village called her husband and she replied that her husband was not at home to which accused Khokan impressed upon her to open the door, otherwise they would broke the door. No sooner did she light the Kupibati (a kerosene lamp normally used in the village) inside the hut, than the accused Khokan Deb, Faku Das, Ratan Das, Dinabandhu Majumder, Swapan, Maran Karmakar all of her village, armed with Dao, Kirich etc. broke open the door and entered into the hut. No sooner did she light the Kupibati (a kerosene lamp normally used in the village) inside the hut, than the accused Khokan Deb, Faku Das, Ratan Das, Dinabandhu Majumder, Swapan, Maran Karmakar all of her village, armed with Dao, Kirich etc. broke open the door and entered into the hut. Forcibly, they pulled her husband Ashit put of the hut and dragged him to the North West corner of the house of one Lal Mohan Das (P.W 22) where they gave him blows with sharp weapons in their hands. The wife informant (P.W 18) raised her cry whereupon accused Dinabandhu chased her with dao. Though the neighbouring people rushed to her house in response to her cry, no one dared to take her husband to the hospital out of fear. Having failed to help her husband lying with bleeding injuries, she then rushed to the police station to inform the incident which she stated orally to S.I. Sri S. Dasgupta (P.W. 29) of the said out-post who reduced the same into writing whereupon she put her signature after the contents were read over to her. P.W 28 Shri Benu Bhushan Pal is the home guard who is a witness of FIR and carried the FIR from the outpost to the East Agartala P.S. immediately after it was recorded. It is not out of place to mention that the wife informant came to know from her sister-in-law named Anju Biswas (P.W 16) about an altercation with the accused persons on previous night and she firmly presumed that the accused persons had committed murder of her husband in retaliation of the said quarrel. 4. On receipt of the said FIR, the East Agartala P.S. Case No. 188/95 was registered under Sections 448/326/34 IPC and S.I. Sri S. Dasgupta (P.W. 29) was entrusted with the investigation of the case. He rushed to the place of occurrence and at once sent Ashit to G.B. hospital where Ashit was found dead. He prepared the hand sketch map of the place of occurrence (site plan), seized blood stained earth, gunny bag stained with blood and a bati Dao by preparing seizure list. He also raided the house of the accused Fuku Das and seized some pieces of paper, some pieces of burnt bidi and match sticks. He prepared the hand sketch map of the place of occurrence (site plan), seized blood stained earth, gunny bag stained with blood and a bati Dao by preparing seizure list. He also raided the house of the accused Fuku Das and seized some pieces of paper, some pieces of burnt bidi and match sticks. He also examined some witnesses and recorded their statement and raided the house of the accused persons, but found them absconding. He arranged photograph of the spot too by a photographer. 5. S.I Kajal Deb of East Agartala P.S. prepared the Inquest Report over the dead body of Ashit and subsequently post-mortem examination was done at the IGM Hospital morgue. 6. After completion of investigation, the I.O. (P.W. 29) submitted the charge sheet against the accused persons for commission of offence punishable under Section 148/149/448/326/302 read with Section 34 IPC. Cognizance was accordingly taken and thereafter the case was committed to the Court of Sessions. Learned Sessions Judge framed the charges against the accused persons for committing offence punishable under Sections 448 and 302 IPC read with Section 34 IPC to which the accused, persons pleaded not guilty and claimed to be tried. The case thereafter transferred to the Court of the Additional Sessions Judge, West Tripura, Agartala. 7. In course of trial, the prosecution examined as many as 29 witnesses including P.W 18, 10 and 11 wife and children of the deceased along with doctor (P.W 19) who performed autopsy on the body of the deceased and the I.O. (P.W 29) of the case and also exhibited some articles to substantiate the charges against the accused appellants. Statements of all accused persons were recorded under Section 313 Cr. P.C. which appeared of a bare denial of the prosecution case. The accused appellants did not adduce any evidence in support of their case. On conclusion of the trial, the learned Additional Sessions Judge passed the impugned judgment and order of conviction and sentence as aforenoted. Questioning the aforesaid order of conviction and sentence passed by the trial Court, the accused appellants have preferred the instant appeal. 8. Mr. The accused appellants did not adduce any evidence in support of their case. On conclusion of the trial, the learned Additional Sessions Judge passed the impugned judgment and order of conviction and sentence as aforenoted. Questioning the aforesaid order of conviction and sentence passed by the trial Court, the accused appellants have preferred the instant appeal. 8. Mr. Biswas, learned Counsel for the appellants while pointing out certain infirmities in the impugned judgment has seriously assailed the prosecution case in regard to the place of occurrence as well as the time of occurrence depending on the stomach contents of the deceased as stated by the Medical Officer (P.W 19) contradicting the statements of the eye witnesses. He also argued that the trial Court failed to consider the evidences and wrongly convicted the accused appellants though the prosecution miserably failed to prove its case against the accused appellants. According to him, the time of alleged occurrence and the time of death of the deceased as stated in the FIR and supported by the statements of P.W 10 and 11 are not correct, in view of the statement of the Medical Officer (P.W 19) who stated in his statement Specifically that he found the stomach of the deceased healthy and empty and normally a full solid food requires 4 to 6 hours for digestion and if someone takes dinner at 6.00 p.m., it would be available in the stomach at least for 4 to 6 hours. In the instant case, it is the specific case of the prosecution that the deceased after taking his meal while sleeping along with his wife and children at about 7.00 p.m., he was allegedly dragged out of the hut and killed by the accused appellants. If that being so, then existence of undigested food materials in his stomach would definitely be available as process of digestion would be stopped at the very moment the man dies. But in the instant case, no undigested food material was available in the stomach of the deceased; rather it was found empty, submitted Mr. Biswas. If that being so, then existence of undigested food materials in his stomach would definitely be available as process of digestion would be stopped at the very moment the man dies. But in the instant case, no undigested food material was available in the stomach of the deceased; rather it was found empty, submitted Mr. Biswas. He also urges that if the deceased took his meal at 6/6-30 p.m., then for digestion of food 4 to 6 hours were required, meaning thereby the digestion would be completed only after 12 to 12.30 p.m. of that night and the alleged incident took place after digestion of food being the stomach was found empty i.e. at about 12/12.30 p.m. If the prosecution is to be believed in regard to taking meal by the deceased along with his family members, then the doctor who held the post-mortem examination and found no undigested food materials in the stomach of the deceased is to be disbelieved. As no such undigested food material was found in the stomach of the deceased, it can be easily presumed that the prosecution story is doubtful one and it can be easily presumed that just before sleeping, the deceased did not take his meal as claimed by the prosecution witnesses, particularly P.W 10,11 and 18. He further submits that in a murder case, the time of death/occurrence is vital one which can be determined on the basis of nature of the contents of the stomach/intestine. In support of his aforesaid contention he relied on the decision of the Apex Court in Charan Singh vs. State of Punjab reported in 1974 Cri LJ 1253 and also the decision of the Division Bench of this Court in Bimal Sinha vs. State of Tripura reported in (1996) 2 GLR 279: 1996 Cri LJ 3437. The Division Bench of this Court took note of the decision of the Apex Court in Ram Narain Singh vs. State of Punjab 1975 Cri LJ 1500 and Raghunandan vs. State of U.P. 1974 Cri LJ 453 wherein the Apex Court determined the time of death/occurrence on the basis of nature of contents or the stomach/intestine. 9. Mr. The Division Bench of this Court took note of the decision of the Apex Court in Ram Narain Singh vs. State of Punjab 1975 Cri LJ 1500 and Raghunandan vs. State of U.P. 1974 Cri LJ 453 wherein the Apex Court determined the time of death/occurrence on the basis of nature of contents or the stomach/intestine. 9. Mr. Biswas also argued that when there was a contradiction between the testimony of the medical officer and alleged eye witnesses' i.e. the ocular evidence regarding time of death of the deceased, in that case, the evidence of the doctor being favourable to the accused persons, the benefit of discrepancy has to be given to them. He also placed reliance on the decision of the Apex Court in the case of State of U.P. vs. Bhagwant reported in 2003 Cri LJ 2337 and in Raja Ram v. State of Rajasthan reported in (2005) 5 SCC 272, particularly para-9 of the said report and in Mukhtiar Ahmed Ansari vs. State (NCT of Delhi) reported in 2005 Cri LJ 2569 particularly referring to paras 29, 30 & 31. 10. The learned Counsel further questioned the prosecution case in regard to the identification of the accused appellants by P.Ws 10 and 11 at the time of alleged occurrence with the help of either Kupibati or electric lamp as P.W 18, the mother of P.W. 10 and 11 and wife of the deceased, specifically stated in her cross-examination that there was no electric connection in their house and in their locality at the relevant time of death of her husband and since it was dark, she could not have identified the miscreants who pulled and dragged her husband and hacked him to death. He also urged that had there been a 'kupi bati' as alleged to have been lighted by their mother or a electric light alleged to have been switched on by the accused Khokan, the police could have seized the said 'kupi bati' or shown the electric post and the electric point in the hand sketch map (site plan). The same, having not seized or shown in the site plan by the police, it can be easily presumed that there was no 'kupi bati' and electrical bulb. The same, having not seized or shown in the site plan by the police, it can be easily presumed that there was no 'kupi bati' and electrical bulb. Since the night of the alleged day of occurrence was admittedly dark the identification of the accused persons by P.W. 10 and 11 without any light is highly doubtful. In support of his aforesaid contention; he placed reliance on a decision of the Apex Court in the case of State of Rajasthan v. Bhola Singh reported in AIR 1994 SC 542 , particularly he referred to paragraph-4 of the said decision wherein the Apex Court held that it is well-settled that if the case is rested entirely on the sole evidence of eyewitness, such testimony should be wholly reliable. In this case, occurrence admittedly took place in the darkness. The two accused were also sleeping in the courtyard along with the other family members, out of whom, three were unfortunately killed on the fateful night. P.W 1 categorically stated; that she woke up only when her mother-in-law was beaten by one of the accused but yet she added that she saw her father-in-law and husband who were sleeping in the courtyard of the house being murdered by the miscreants. This is a clear infirmity in her evidence. That apart, it is highly doubtful that there was any light with the help of which she could identify the accused. On the other hand, a story was built up that an electric bulb was burning, in support of which there is no material and a decision of this Court in Criminal (Jail) Appeal No. 14 of 1996 wherein this Court also took note of the case of State of Rajasthan v. Bhola Singh (supra) 11. Mr. Biswas also contended that P.W. 10 and 11 admittedly at the time of occurrence were about 10 and 7 years of age respectively and their statements under Section 161 of the Cr. Mr. Biswas also contended that P.W. 10 and 11 admittedly at the time of occurrence were about 10 and 7 years of age respectively and their statements under Section 161 of the Cr. P.C were recorded on 5.11.1995 i.e. after two days of the alleged occurrence when they were staying with their uncle (P.W. 5.) at Master Para and the delay caused in recording of such statement has not been properly explained which creates doubt on the prosecution story and the evidence of such eye witnesses making" it generally unworthy of credence and the same is to be rejected, particularly when their statements have not been corroborated by the evidence of other witnesses, rather contradicting, whereas corroboration of evidence of child witnesses are sine qua non for conviction of the accused persons in a murder case like the present one. In support of his aforesaid contention, the learned Counsel has placed reliance on the decision of the Apex Court in Panchi vs. State of U.P. reported in 1998 Cri LJ 4044, particularly in paragraph-11, wherein the Apex Court opined that it is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and thus a child witness is an easy prey to tutoring. Mr. Biswas finally urged that statements of P.W. 10 and 11 to the effect that the accused persons beat their father and dragged out of the hut to the court-yard and that they also inflicted blows by means of lethal weapons like dao and dagger on their father, which resulted in bleeding injuries, are not correct. Mr. Biswas finally urged that statements of P.W. 10 and 11 to the effect that the accused persons beat their father and dragged out of the hut to the court-yard and that they also inflicted blows by means of lethal weapons like dao and dagger on their father, which resulted in bleeding injuries, are not correct. Had there been any stroke of dao and dagger blow on their father, then from, the court-yard to the place of occurrence where the body of the deceased was found, the trail of blood would have been there, but the facts remain that no trail of blood/blood stain was found at the courtyard by the I.O. and it was also not the case of the prosecution before the Trial Court that the blood stain at the court-yard disappeared in view of the time gap between the incident and the I.O's inspection and due to gathering of the villagers in the place of occurrence. On that count also, according to Mr. Biswas, the statement of P.W. 10 and 11 ought to have been disbelieved by the trial Court, as admittedly there was no blood stain available either inside the hut or in the court-yard of the deceased, which also creates a considerable doubt as to the testimony of the P.W 10 and 11 with regard to witnessing the accused persons to have stricken with dao or dagger blow on, their father in the courtyard. It has also been contended that none of witnesses stated that they had found blood of the deceased in the courtyard to support the evidence of P.W 10 and 11. In support of his aforesaid contention,, the learned Counsel placed reliance on the decision of the Apex Court in the case of Hem Raj vs. State of Haryana reported in 2005 Cri LJ 2152 as well as in the case of Kanju Muhammed vs. State of Kerala reported in (2004) 9 SCC 193. 12. Finally, the learned Counsel argued that P.Ws. 10 and 11 admittedly being in custody of the uncle, it cannot be ruled out that they might have been tutored by their uncle. He also relied on the case of a Division Bench of this High Court in the case of Md. 12. Finally, the learned Counsel argued that P.Ws. 10 and 11 admittedly being in custody of the uncle, it cannot be ruled out that they might have been tutored by their uncle. He also relied on the case of a Division Bench of this High Court in the case of Md. Bachhu Miah and Alinoyaj vs. State of Tripura reported in which was subsequently relied on by another Division Bench of this Court in the case of Jharna Debnath vs. State of Tripura reported in (2000) 1 GLR 421. While placing reliance on the aforesaid decision of this Court, Mr. Biswas submits that the trial Court should have scanned the evidence of P.W. 10 and 11 carefully to find out whether there is any sign of tutoring or not and the court should also look for corroboration of the evidence of child witnesses by other prosecution witnesses, but in the instant case, the trial Court has failed to discharge its duties and it was also the duty of the trial Court to record the evidence of the child witnesses in question-answer manner, which was also not done. 13. Mr. Sarkar, learned P.P. while resisting the submissions of Mr. Biswas contended that time of death/occurrence cannot be always determined on the basis of the nature of the contents of the stomach/intestine, as digestion of food depends upon the condition of the digestive power of the person concern and when there is a difference between the ocular evidence and the medical evidence, it is the duty of the court to accept the ocular evidence and reject the medical evidence, as the medical evidence is nothing but an opinion, whereas the ocular evidence is the positive statement of the person who has seen the deceased at the time of taking meal. In the instant case, P.W. 10, 11, 18 being the inmates- children and wife of the deceased, they are the best trustworthy persons to say when the deceased took his meal before his death as eye witnesses. In the instant case, P.W. 10, 11, 18 being the inmates- children and wife of the deceased, they are the best trustworthy persons to say when the deceased took his meal before his death as eye witnesses. In support of his aforesaid submissions, the learned P.P. placed reliance on the decision of the Apex Court in the case of State of Madhya Pradesh vs. Dharkole alias Govind Singh reported in 2005 Cri LJ 108 wherein the Apex Court observed that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eye-witnesses account which had to be tested independently and not treated, as the Variable' keeping the medical evidence as the 'constant'. It is trite that where the eye-witnesses account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Mr. Sarkar has also placed reliance on the decision of the Apex Court in the case of State of Punjab vs. Hakam Singh, reported in 2005 Cri LJ 4111 wherein the Apex Court held that whenever there is conflict between medical evidence and ocular testimony, normally ocular testimony should be preferred, unless it belies fundamental facts. To brush aside the contention of Mr. Biswas as regard to the identification of the accused persons, Mr. Sarkar has contended that eye witness cannot always be treated as incompetent witness with intellectual capacity and capability of giving rational account of what he has seen or heard and there is no rule of law that evidence of child witness cannot in any circumstances be acted upon without any corroboration of direct nature. In the instant case, according to the learned P.P., P.W 10 and 11 though were at the age of 10 and 7 years, respectively, at the time of occurrence, that does not itself disqualify them from disclosing the factual truth which they have seen, only on the ground that they were minor in age, as they were the natural witnesses of the murder of their father by the accused appellants inside the hut where they were present. There may be some minor discrepancy between the statement made by them under Section 161 Cr. There may be some minor discrepancy between the statement made by them under Section 161 Cr. P.C. and the statement before the Court, but those minor discrepancies have to be ignored by the court of law for rendering the real justice to the family of the deceased as well as to the society, submits Mr. Sarkar. In support of his aforesaid contention, the learned P.P has relied on a decision of the Division Bench or this Court in the case of Musst. Jarina Khatun v. State of Assam reported in and a decision of the Apex Court in the case of Raj Pal v. State of Haryana reported in 2007CriLJ2926 to show that the ocular evidence will prevail over the medical evidence; Learned P.P also relied upon a decision of the Apex Court in Suresh vs. State of U.P reported in 1981 Cri LJ 746 wherein the Apex Court observed that Children, in the first place, mix up what they see with what they like to imagine, to have seen and besides, a little tutoring is inevitable in their case in order to lend coherence and consistency to their disjointed thoughts which tend to stray. The extreme sentence cannot seek its main support from evidence of this kind which, even if true, is not safe enough to act upon for putting out a life. 14. Mr. Sarkar then tried to support the stomach condition of the deceased on the plea that dinner/meal does not always mean a solid food. According to him, the deceased might have taken liquid food on the relevant night for which his stomach might have found empty. 15. Learned P.P also urged that the evidence of the hostile witnesses cannot always be discarded, as by this time it is the settled law that the evidence of hostile witness can be relied on to the extent to which it supports the prosecution version and on the basis of such statement, the order of conviction can be passed and in the instant case, the trial Court has rightly believed P.W 10 and 11 and partly P.W. 18 though she was declared hostile and convicted the accused appellants on the basis of their statements keeping in mind the facts and circumstances of the case. 16. 16. In support of the contention regarding the evidence of hostile witnesses, the learned P.P relied on a decision of the Apex Court in the case of Koli Lakhmanbhai Chanabhai vs. State of Gujarat reported in AIR 2000 SC 210 : 1999 Cri LJ 408. 17. It has also been urged that non-mentioning of the electrical pot in hand sketch map and non-seizure of blood stain from the hut and court-yard of the deceased by the 1.0 is a minor defect for which prosecution case cannot be brushed aside and the accused appellants will not be entitled to get the order of acquittal when they were convicted by the trial Court after proper scrutiny of the evidence of the witnesses. 18. The learned P.P. also argued that P.W 18 lodged FIR with utmost promptness wherein the names of the accused appellants were specifically mentioned and P.W 10 and 11 also in their 161 statement stated the names of the accused appellants without their surname, which shows that the accused appellants were known to them before the date of occurrence and when a person is known prior to an incident, he can be identified even in the dark night without any light. In the instant case, even if it is considered that there was no light, then also it can be presumed by the Court that the accused persons were properly identified by P.W. 10 and 11 for which they could disclose their names even in their 161 statement before disclosing the same to the trial Court. 19. Mr. Sarkar finally urged that the accused appellants were absconding from their respective houses just after the murder of the deceased and the said conduct of the accused appellants after the occurrence of offence is relevant pointing to their guilty mind and from the aforesaid conduct of the accused appellants, there can be a conclusion that they committed murder of the deceased and order of conviction was rightly passed by the trial Court. Relying on the decision of the Apex Court in Krishna Mochi vs. State of Bihar reported in 2002 Cri LJ 2645 particularly drawing the attention of Para 32 and 33 of the said report, wherein the Apex Court held that these days when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more, it has been submitted that now the maxim let, hundred, guilty persons be acquitted, but not a single innocent be convicted is, in practice, changing the world over and courts have been compelled to accept that society suffers by wrong convictions and it equally suffers by wrong acquittals. 20. With the aforesaid contention, the learned P.P. tries to convince this Court that as offence of murder is against the society, the Court should ignore doctrine of golden thread of criminal jurisprudence and dismiss the appeal affirming the order of conviction and sentence. 21. In response to the submission of Mr. Sarkar, Mr. Biswas submits that evidence of the child witnesses in this case has not been corroborated by the evidence of other witnesses, rather it contradicts and moreover, they are interested witnesses. Hence the evidence of P.W 10 and 11 have to be disbelieved. He also submits that P.W. 20 did not make any statements to the police while his statement was recorded under Section 161 Cr. P.C to the effect that the wife of the deceased disclosed to him the names of the accused/appellants and his subsequent statement in the court cannot be used against the accused appellants as the subsequent statement contradicts the earlier statement and the said fact has also been confirmed by the I.O. of the case. It has further been submitted that the conduct of the accused depends upon the facts and circumstances of each case. Without putting any question to the accused by the Court while examining them under Section 313 Cr. P.C regarding their absconsion, the said circumstances/facts cannot be used against them. Mr. It has further been submitted that the conduct of the accused depends upon the facts and circumstances of each case. Without putting any question to the accused by the Court while examining them under Section 313 Cr. P.C regarding their absconsion, the said circumstances/facts cannot be used against them. Mr. Biswas also submits that the Apex Court in a catena of decisions while interpreting Section 8 of the Evidence Act, categorically stated that it is true that when the accused appellant had absconded just after occurrence, then the police has the reason for suspecting the complicity of the accused in the offence and the said conduct is relevant under Section 8 of the Indian Evidence Act and might well be indicative to some extent of guilty mind, but this is not the only conclusion to which it must lead the Court. Even innocent persons may, when suspected of grave crimes, be tempted to evade arrest; such is the instinct of self-preservation in an average human being. In the instant case also, being the co-villagers, when the accused appellants heard that P.W 18 suspected them in connection with the murder of her husband and also lodged FIR against them, then they had no other alternative but to evade arrest, submits Mr. Biswas. In support of his aforesaid contention, the learned Counsel relied on the decision of the Apex Court in Thimma vs. State of Mysore reported in 1971 Cri LJ 1314, Hate Singh Bhagat Singh vs. State of Madhya Bharat reported in 1953 Cri LJ 1933 and the case of Rahman vs. State of U.P. reported in AIR 1972 SC 110 wherein the Apex Court held that "absconding by itself is not conclusive either of guilt or of a guilty conscience. For, a person may abscond on account of fear of being involved in the offence or for any other allied reason." Reliance has also been placed in the case of Matru alias Girish Chandra vs. State of U.P. reported in AIR 1971 SC 1050 wherein the Apex Court held that the act of absconding is no doubt relevant piece of evidence to be considered along with other evidence, but its value would always depend on the circumstances of each case. Generally the Courts consider it as a very small item in the evidence for sustaining conviction. Generally the Courts consider it as a very small item in the evidence for sustaining conviction. It cannot certainly be held as a determining link in completing the chain of circumstantial evidence consistent only with the hypothesis of the guilt of the accused. 22. The Court is to keep itself in place of justice seeker so that it can properly assess the evidence of prosecution witnesses to come to an unhesitant conclusion regarding commission of crimes in a criminal trial. Unless that can be done, there would be a chance to arrive at a wrong conclusion and due to such wrong conclusion, sometimes society may be benefited, but the innocent accused justice seeker would be deprived of from getting the proper justice to which he be entitled to from the Court of law. Therefore, we thought it fit to reproduce the evidence of the material witnesses relying on whom the learned trial Court passed the impugned judgment and order of conviction and sentence as the same would be profitable before coming to a conclusion regarding guilt of the accused appellants. Out of 29 prosecution witnesses, prosecution tendered seven witnesses; they are P.W. 4, 7, 15, 16, 17, 21, 26. Though the aforesaid witnesses were tendered by the prosecution, P.W 26 in her cross-examination stated that there was no electric supply in their area at the relevant time when Gunui (Ashit) was murdered. The trial Court mainly placed reliance on P.W 51, 10, 11, 18, 19, 20, 27, 28. 23. P.W 10, Shri Ashim Shil, who was aged about 10 years at the relevant time of occurrence and son of the deceased, stated that on 3.11.95 at night he along with his father Ashit Shil, mother Bina Shil and sister Soma Shil was in their house. At about 7/7-30 p.m. when they were lying on their bed inside their hut, one person came in their court-yard and enquired about whether Paritosh was inside their hut to which his mother replied in negative. After 5/7 minutes another person came and asked whether his father was at home to which also his mother replied negative. After sometimes, Khokan Kaku (uncle) came to their house and they could realize that Khokan kaku was accompanied by some other persons. After 5/7 minutes another person came and asked whether his father was at home to which also his mother replied negative. After sometimes, Khokan Kaku (uncle) came to their house and they could realize that Khokan kaku was accompanied by some other persons. His mother then lighted, a Kupi lamp (a traditional small kerosene lamp used in the village) and at that time, Khokan kaku pushed down the bamboo jhap door (a door made of bamboo used in a small hut) of their hut and after entering the hut Khokan kaku switched on the electric light and his father out of fear entered the Thakur Ghar (a space inside the hut where images of the god & goddess are worshiped), but as the light of the bulb focused at his father, he found that Khokan Kaku, Ratan Kaku, Swapan Kaku, Maran Kaku and Fuikya Kaku all caught his father, beat him and dragged him to the court-yard. His father told them not to kill him in presence of them and if they wanted to kill him they might take him away to kill. His father was crying and when he went near his father, Khokan kaku pushed him away. They (the accused persons) were striking Dao and dagger blow on his father in the courtyard and his father received bleeding injuries. Then his father fell in the corner of the nearby house on being assaulted by the miscreants and his father died there. He identified the accused Khokan Deb as Khokan Kaku, Promode Das @ Fhuku a Fuikya Kaku, Ratan Das as Ratan Kaku and Maran Karmakar as Maru Kaku 24. In his cross, he stated that after taking dinner, he went to bed on that night and the lamps were put out He could, not say the surname of the accused persons. He also stated that hearing their cry, nobody from the neighbourhood came to their house and after the murder of his father, his mother went to the police station and dead body of his father was lying on the spot. Somebody from the neighborhood took him and his sister to their house. His mother did not leave them in the neighbour's house and till they were taken to the neighbour's house, other villagers did not visit their house. He has forgotten in whose house they were taken. Somebody from the neighborhood took him and his sister to their house. His mother did not leave them in the neighbour's house and till they were taken to the neighbour's house, other villagers did not visit their house. He has forgotten in whose house they were taken. Thereafter, someone took him to the spot where his father was lying dead. He further stated that they were crying when his father was taken out and he was not afraid of and in hurry to enter inside the hut. He also did not flee from their house when the occurrence was going on and did not go anywhere to hide himself out of fear. On the following day, Darogababu met him and recorded his statement. He stated that he did not state to Darogababu that when his father was assaulted he went away out of fear. His attention was drawn to his previous statement recorded under Section 161 Cr. P.C, to which he admitted that such statement is there, but he denied to have made it to I.O. The portion was marked as Exht-A. This witness further stated that on the following morning of the night of the occurrence, he left for his uncle's house and it was evening time when Darogababu met him. His sister and mother also left for his uncle's house on the following day and after about six months, his mother and sister again left for their Dukli house. He also stated that his father was lying in the south east corner of the house of Lal Mohan Kaku. Inside the room also, his father was assaulted with dao blow and there was blood shed inside and outside the hut. Attention was drawn to the previous statement where he stated that he found to hurl blows with something pointed and sharp weapon but the specific name of dao and dagger was not there. The specific portion was marked as Exht A-1 subject to proof by I.O. which was ultimately proved by the I.O. It has further been stated that before murder of his father/people of Daspara set their house on fire and damaged their house hold goods and articles. He also stated that there was no electric connection in our house. 25. The specific portion was marked as Exht A-1 subject to proof by I.O. which was ultimately proved by the I.O. It has further been stated that before murder of his father/people of Daspara set their house on fire and damaged their house hold goods and articles. He also stated that there was no electric connection in our house. 25. P.W 11, Smt. Soma Shil, the daughter of the deceased has stated about the murder of her father on the same line with his brother P.W. 10. She also stated that when she was lying on bed along with her brother and parents, someone came to their house and after some time the door of the hut was broken. When the door fell down, the kupi lamp was put out. His father fled to the Thakur ghar, but Khokan kaku switched on the electric lamp and in the light, his father was found and then the accused persons gave blows on her father and dragged him out of the hut and due to assault, her father died on the spot. They raised cry, but out of fear neighbouring people did not come. She also stated she knew the accused persons well since they used to visit their house with her father. 26. In her cross examination, she stated that on the following day, they went to their uncles house. In her cross, she stated that she did not state to Darogababu that her parents were sleeping after taking dinner. Attention was drawn to her earlier 161 statement to which she admitted that there is such statement, but she denied to have made such statement which was marked as Exhibit-B subject to proof by I.O. She also stated that it is not a fact that there was no electric connection in their house 27. P.W 18 Mina Rani Shil is the wife of the deceased who lodged FIR immediately after the occurrence after reaching the Maharajganj Bazar police outpost and narrated the occurrence to the 1.0. In her chief, when she did not support the prosecution case, she was declared hostile 28. The observation of the trial Court is that the expose (scope) and manner of making statement of the witness speaks that she is deliberately trying to make statement with a different attitude than what is normal for a witness in ordinary situation. 29. In her chief, when she did not support the prosecution case, she was declared hostile 28. The observation of the trial Court is that the expose (scope) and manner of making statement of the witness speaks that she is deliberately trying to make statement with a different attitude than what is normal for a witness in ordinary situation. 29. She stated that as soon as the miscreants entered the hut, her husband also ran away and the miscreants chased behind him. When her husband was dragged away, she also came out of the hut and lost her sense and after sometimes when neighbouring people poured water on her head, she regained her sense. Thereafter, she found the dead body of her husband with multiple injuries. Since she lost her sense, she could not say what happened thereafter. At 9.00 p.m. Darogababu came to her house and she narrated the occurrence to Darogababu. But she cannot say what daroga babu wrote and that was not read over to her. She also cannot say whether she put her signature or put her thumb impression to any statement recorded by Darogababu. She also cannot say who kicked her husband. 30. In her cross examination by special P.P., attention was drawn to the entire statement recorded as FIR which this witness denied to have made that is marked as Exbt. 9. She also stated that she does not know Khokan, Fuku, Ratan, Dinabandhu and Maru and she heard from the people that the houses of those people are a mile away from her house. She also stated that they had no occasion of having picnic and her husband had quarrel with the accused persons and therefore the accused persons had a hostile attitude towards her husband. 31. She further stated that there was no electric connection in their house and in their locality at the relevant time of death of her husband and she did not light any lamp. And since it was dark she could not identify the miscreants who pulled and dragged her husband and hacked him to death. Her son and daughter also could not identify the miscreants. Her daughter was taken away by her brother-in-law to influence her to give deposition as per their desire. 32. And since it was dark she could not identify the miscreants who pulled and dragged her husband and hacked him to death. Her son and daughter also could not identify the miscreants. Her daughter was taken away by her brother-in-law to influence her to give deposition as per their desire. 32. P.W 5, Sri Pradip Shil is the brother of deceased Ashit and is a resident of different village who along with P.W 20 Shri Indrajit Debnath went to the hospital after hearing the occurrence and signed the inquest report. He stated in his deposition that he found the informant present in the IGM Hospital under great shock, who disclosed that her husband was forcibly taken by the miscreants in presence of their children and she could identify them as Fuikka, Maru, Khokan, Ratan and Swapan. She also told that the miscreants killed him with sharp weapon. During cross-examination, he also stated that he told Darogababu the names of accused persons which he learnt from her sister-in-law and it is not a fact that he did not meet the wife of Ashit at IGM Hospital and that she did not disclose to him any names of the accused persons. 33. P.W. 20, Sri Indrajit Debnath, went to the IGM Hospital with P.W 5 when the wife of deceased Ashit was already there. He deposed that on query by Pradip (P.W. 5), the wife of Ashit told that on the previous evening the miscreants murdered her husband and she told some names who killed her husband and out of those names stated by her he could recollect the names of Maru and Khokan. In cross, he stated that it is not a fact that the wife of Ashit was not in the IGM Hospital morgue when inquest was done and that she did not make any statement to Pradip. He denied the suggestion that the wife of Ashit did not make any statement disclosing the names of Maru, Khokan and other accused persons. He identified Khokan in the dock. 34. P.W. 19, Dr. Ashim Dutta conducted the post-mortem examination over the dead body of Ashit on 4.11.1995 at IGM Hospital morgue. The opinion of the doctor as to the cause of death of Ashit is' shock & haemorrhage as a result of multiple sharp cut injuries received on the head and body. He identified Khokan in the dock. 34. P.W. 19, Dr. Ashim Dutta conducted the post-mortem examination over the dead body of Ashit on 4.11.1995 at IGM Hospital morgue. The opinion of the doctor as to the cause of death of Ashit is' shock & haemorrhage as a result of multiple sharp cut injuries received on the head and body. The injuries are found to be recent, and ante mortem in nature. According to the doctor, the nature of injuries strongly suggest 'Homicidal' and caused by sharp cut weapon (Exbt, 10). He found the stomach healthy and empty. 35. P.W 27, Sri Amit Datta, is the photographer who took the photograph of the deceased and P.W. 28, Benu Bhusan Paul is a Home Guard in whose presence, FIR was lodged by Smt. Mina Rani Shil (P.W. 18) and who carried the FIR to the East Agartala P.S. 36. We have perused the impugned judgment of the learned trial Court and also considered the submission of the learned Counsel for the parties and the law Reports cited. There are cases where crimes are established but criminals' participation is covered by suspicion. The instant case is one of those cases. According to us, the trial Court did not consider the evidences of the witnesses in its proper perspective. It has riot considered some salient and material facts available on record while passing the impugned order of conviction and sentence, particularly, the source of identification of the accused persons in the dark night and the relevant time of death/occurrence of the deceased Ashit. The stomach of the deceased was found empty and it is the case of the prosecution that he I was killed by the accused persons just after taking dinner. It is an admitted position that Ashit was murdered on 3.11.95 and his dead body was found to the north-west corner of the house of Lal Mohan Das (P.W. 22). But question arises whether the accused appellants are actually those criminals or not, in other words, whether they were involved in the alleged crime of murder of deceased Ashit. 37. We are of the considered opinion that the time of death/occurrence of a person cannot always be determined on the basis of nature of contents of the stomach/intestine as well as on the testimony of the medical officer, it depends on the facts and circumstances of each case. 37. We are of the considered opinion that the time of death/occurrence of a person cannot always be determined on the basis of nature of contents of the stomach/intestine as well as on the testimony of the medical officer, it depends on the facts and circumstances of each case. In the instant case, though P.W. 10,11 and 18 clearly disclosed in their statement that the deceased Ashit took his meal just prior to his death, at the same time, doctor (P.W. 19) who had done the autopsy on the person of deceased Ashit in his cross stated that he did not mention the time of death. Normally a full stomach solid food for digestion requires 4 to 6 hours. He found the stomach of the deceased healthy and empty. If some one takes dinner at 6.00 p.m. it would be available at least for 4 to 6 hours in the stomach. 38. While considering the prosecution story on the touchstone of prosecution witnesses, it is the admitted case of the prosecution that the deceased took his dinner along with P.W. 10, 11 and 18 and they were sleeping, at that time accused Khokan asked P.W 18, the wife of the deceased, to open the door and ultimately the door was broken and the deceased was dragged out of the hut, who was given blows with dao, kirich etc. and he succumbed to the injuries. If the prosecution story was true that the deceased took his dinner just immediately before the death, then undigested food materials must be in his stomach, which is not there, according to the statement of the doctor. In the case of Bimal Sinha (supra), the Division Bench of this Court relying on the decision of the Apex Court in the case of Ram Narain Singh (supra) has also observed that digestion of food takes quite some time. That apart, the process of digestion would be stopped just after the death of the person. This Court in the case of Bimal Singh (supra) also observed relying on the Modi's Medical Jurisprudence and Toxicology, 21st Edition, Page-185 that food has been seen in the stomach remaining undigested in person who received severe head injury soon after their meal and died within twelve to twenty-four hours afterwards. Food consisting chiefly of rice and dal (pulse) may remain in the stomach for about 40 hours without undergoing digestion. Food consisting chiefly of rice and dal (pulse) may remain in the stomach for about 40 hours without undergoing digestion. If that be so, then in the instant case, just after the death of the deceased, process of digestion had been stopped and the doctor could not find undigested food materials in the stomach of the deceased when held post mortem and it was specifically mentioned in the post mortem report regarding the stomach of the deceased that the stomach was found healthy and empty. From this, it seems that the deceased did not take his dinner at about 6 to 6.30 p.m. as claimed by the prosecution witnesses. The Apex Court in the case of Ram Narain Singh (supra), which was relied by Mr. Biswas, noticed the circumstances in paragraph-9 that "medical evidence of Dr. Walia 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 p.m. which is also the usual time when the villagers take their food". Relying on this circumstance, Supreme Court came to the conclusion that the incident must have taken place at about 8 p.m. and it belied version of the two eye witnesses that the occurrence took place in their house at about 6.30 p.m. The Division Bench of this Court on consideration of Ram Narain Singh (supra) observed 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 died within half an hour after he took food last. 39. Taking aid from the aforesaid observation, it appears to us that time of death/occurrence can be determined on the basis of nature of the contents of the stomach/intestine. Therefore, the contents of stomach/intestine of a dead man must contain undigested food material if he died within half an hour after he took food last. 39. Taking aid from the aforesaid observation, it appears to us that time of death/occurrence can be determined on the basis of nature of the contents of the stomach/intestine. In the instant case, as the intestine was found healthy and the stomach empty by P.W. 19, the doctor, who had done autopsy, who specifically stated in his statement that normally full stomach solid food digestion requires 4 to 6 hours and if some one takes dinner at 6 p.m., it would be available at least for 4 to 6 hours in the stomach. The definite case of the prosecution story that the deceased took his dinner at 6/6.30 p.m. and he was killed within 1/2 hours from the time he took his meal cannot be accepted, which creates doubt in our mind about the time of occurrence as projected by the prosecution and claimed by the prosecution witnesses. 40. The learned Trial Court while passing the judgment of conviction has relied on the decision of the Apex Court in AIR 1988 SC 912 and 1982 Cri LJ 1972 wherein it was held that evidence of expert has to be appreciated like that of other witnesses and no presumption could be raised that the doctor is always a witness of truth and medical opinion cannot wipe out direct testimony of the witnesses. There is no dispute to the said proposition of law. However, in view of the facts and circumstances of their case, as discussed above, we are of the view that the prosecution story relating to the time of occurrence is doubtful. The prosecution, therefore, has failed to prove the time of occurrence by adducing cogent evidence. In this case, the testimony of the doctor cannot at all be brushed aside, in view of our finding that the ocular evidence of other witnesses are doubtful. 41. There is no quarrel with the proposition laid down by the Apex Court in the case of Dharkole alias Govind Singh (supra) and Hakam Singh (supra). In this case, the testimony of the doctor cannot at all be brushed aside, in view of our finding that the ocular evidence of other witnesses are doubtful. 41. There is no quarrel with the proposition laid down by the Apex Court in the case of Dharkole alias Govind Singh (supra) and Hakam Singh (supra). In those cases, the Apex Court held that it would be erroneous to accord undue primacy to the hypothetical answer of medical witnesses to exclude the eye-witnesses account which had to be tested independently and not treated as the Variable' keeping the medical evidence as the 'constant' and where the eye-witnesses account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Therefore, it can not be said that the Court cannot in no circumstances take aid of the medical opinion to record the finding regarding time of death when the eye-witnesses are found untrustworthy and when there is no other evidence to determine the time of death, as the time of death, is vital to come to a proper decision in a murder case like the case in hand. 42. We are unable to accept the contention of Mr. Sarkar that in all cases, the ocular evidence will prevail over the medical evidence. At the same time, we cannot also agree with the contention of Mr. Biswas that the evidence of child witness generally unworthy of credence and liable to be rejected, as by this time it is settled that child witness cannot be treated as incompetent witness, and evidence of such witness could be relied upon if he/she is capable of giving rational account of what he/she has seen or heard. There is no rule that evidence of child witnesses cannot in any circumstances be acted upon, without any corroboration of direct nature. But while accepting the version of the child witnesses, it is the duty of the Court to cautiously scrutinize the same as there are always some possibility of tutoring by other daily inmates of the house. 43. On going through the evidence of PW. 10 &11, it cannot be said that these witnesses are incompetent witness with intellect capacity and they are not capable of giving rational account of what they have seen or heard, however, the evidence of these witnesses are required to be scanned carefully. 43. On going through the evidence of PW. 10 &11, it cannot be said that these witnesses are incompetent witness with intellect capacity and they are not capable of giving rational account of what they have seen or heard, however, the evidence of these witnesses are required to be scanned carefully. While scanning the evidence of those witnesses, it is found that for the first time, the P.W. 11 stated in the Court that "Khokan Kaku switched on the electric lamp", about which she has not stated before the I.O. of the case while he recorded the statement under Section 161 Cr. P.C. In cross when she was asked about such fact and read out 161 statement, she admitted that there was no such statement that electric lamp was switched on by Khokan kaku, though the witness asserts that she made such statement. P.W 10 stated that when their father was assaulted, he did not go away to hide himself out of fear. But when the attention was drawn to the witness to his earlier statement recorded under Section 161 Cr. P.C. that "when his father was under assault they went away out of tear", he admitted that such statement is there but he denied to have made it to I.O. This witness has also stated that Kupi lamp, which was lighted by his mother was put out on the fall of jhap door of the hut and, in the meantime, the deceased fled to Thakur Ghar, and the accused Khokan switched on the electric lamp, on the light of which, his father was found and caught by Khokan kaku, Ratan kaku, Swapan Kaku, Maran Kaku and Fuikya kaku and they struck blows on their father with Dao and dagger. 44. Now, if we take the evidence of P.W. 26 and the I.O. (P.W 29), we would find that there was no electric light in the house of the deceased as well as in the area where the house of the deceased is situated. Therefore, identification of the accused persons by P.W. 10 and 11 with the help of electric lamp is not free from doubt. It leads to the question whether the accused could be identified by these two child witnesses with the help of Kupi lamp which was lighted by their mother and subsequently put out on the fall of jhap door. Therefore, identification of the accused persons by P.W. 10 and 11 with the help of electric lamp is not free from doubt. It leads to the question whether the accused could be identified by these two child witnesses with the help of Kupi lamp which was lighted by their mother and subsequently put out on the fall of jhap door. It appears from the record, particularly, the statement of I.O. of the case that the said Kupi lamp was not seized by the I.O. and non-recovery of the material like kupi lamp, by which the accused were alleged to have been identified, creates doubt in our mind. Had there been any kupi lamp inside the house of the deceased, then I.O. definitely would have seized the same and non-seizure of kupi lamp by the I.O., it may be presumed that the kupi lamp might not be there at the relevant time. That apart it is the positive statement of P.W 11 that the kupi lamp was put out at the fall of the jhap door and the accused person entered the hut thereafter. Therefore, question of identification either in the light of kupi lamp or electric lamp is not free from doubt. 45. From the aforesaid discussion, it is also evident that the evidence of these child witnesses is contradictory to their earlier statement. In the case of Md. Bachhu Miah, (supra) this Court keeping in view the facts involved observed that the child witnesses are a most untrustworthy class of witnesses for, when in tender age, they often mistake dreams for reality, repeat glibly as of their own knowledge what they have heard from others and are greatly influenced by fear of punishment, by hope of reward and by desire of notoriety. This Court also in considering the evidence of child witnesses also stated that these observations should not be lost sight of, although each case would depend upon its particular facts and circumstances. The evidence of a child witness 'should be scanned carefully, if no flaws or infirmities are found therein, there is no impediment in accepting his evidence. The Court should make endeavour to see whether there is sign of tutoring. The Court should also look for corroboration. The evidence of a child witness 'should be scanned carefully, if no flaws or infirmities are found therein, there is no impediment in accepting his evidence. The Court should make endeavour to see whether there is sign of tutoring. The Court should also look for corroboration. In the case at hand, though the child witnesses stated in their evidence regarding kupi lamp and electrical lamp, but existence of both source of light is not free from doubt. Therefore, we have no hesitation to hold that the evidence of these child, witnesses are not trustworthy so far identification of the accused are concerned, even if they were present at the time of alleged occurrence of murder. 46. It has been stated by P.W. 10 that the I.O. recorded the statement on the next day following the day of the night of murder of his father at Masterpara while they were residing in their uncle's house (P.W. 5), but the I.O. in his deposition specifically stated that the statements of the child witnesses were recorded on 5.11.95. Therefore, it can be presumed that the statement recorded under Section361 Cr. P.C. which was relied for the purpose of contradiction of these witnesses might not be the actual 161 statement, which also creates doubt about the prosecution case. 47. P.W. 10 also stated that his father was assaulted with Dao blow inside the house as well as in front of the house and there was blood stain inside and outside the hut, but facts remain that there was no trail of blood found by the I.O either inside the hut or outside the hut. 48. P.W. 11 though stated in the Court that her mother lighted kupi lamp and it was put out, but the said statement was not stated to the I.O. of the case while her statement was recorded under Section 161 Cr. P.C. While attention of the witness was drawn, this witness admitted that such statement was not there, but she asserted that she made the statement. 49. After going through the evidence of P.W. 10 and 11, it cannot be ruled out that these witnesses were tutored by their uncle i.e. P.W.5 while they were staying in his house almost for long six months from the date of murder of their father. 50. 49. After going through the evidence of P.W. 10 and 11, it cannot be ruled out that these witnesses were tutored by their uncle i.e. P.W.5 while they were staying in his house almost for long six months from the date of murder of their father. 50. As per the child witnesses, P.W. 10 and 11, it is not clear to us as to why the I.O. did not record the statements of these witness, though he met with them on 4.11.1995 at Masterpara. Instead he recorded the statement on 5.11.1995 which has no explanation and that also creates doubt regarding prosecution case. 51. The fact of the case in Hardev Singh vs. Barbhej Singh reported in (1997) 2 SCC 80 is different from the case in hand, as relied on by Mr. Sarkar, learned P.P. In that case, the incident took place at 7.30 p.m. on 23.5.1985 and the witnesses had emphatically asserted that there was enough light to identify the accused. Moreover, the, respondents (accused) were known to the eyewitnesses since their houses were adjacent to the house of Chanan Singh. And on that fact, the Apex Court held that High Court erred in recording the finding that it was a blind murder during the dark night. But in the instant case though the P.W. 10 and 11 stated that they identified the accused with the help of electric light, but it is an admitted position that there was no electric light in the hut of the deceased and nor did I.O. seize any kupi lamp lighted by the wife of the deceased from the hut of the deceased to prove that there was light in the hut of the deceased through which the accused could be identified. 52. 52. Both the P.W. 18, the wife of the deceased and an eye witness of the occurrence and P.W. 26 declared as hostile and tender witness, made a specific statement that there was no electric supply in the area at the relevant time of occurrence and the learned Trial Court also in its judgment specifically stated that in respect of the presence of electric light, there might be some sort of suspicion, but about the light of kupi lamp; there was a continuity of "statement from the inception and so even though the kupi lamp was not seized, he found no reason to disbelieve the eye witnesses i.e. P.W, 10 and 11 as these witnesses categorically stated so and that was also established from the circumstances, that the accused persons are the residents of the neighborhood of the deceased and P.W. 10 and 11 were closely known to them. On that circumstance, he found no reason to disbelieve the witnesses that they could identify the accused persons while the accused persons were dragging their father and hacked him to death. According to us, the said findings of the trial Court so far identification of the accused persons are concerned with the help of Kupi lamp is not acceptable as P.W. 11 specifically stated that Jhap door of the hut of the deceased was broken open and kupi lamp which was lighted by her mother was put off on the fall of the jhap door and in the meantime, her father fled to Thakur garh. No where they stated that they identified the accused persons with the help of kupi lamp. Therefore, the findings of the learned trial Court so far the identification of the accused with the help of kupi lamp is not acceptable and moreso, non-seizure of kupi lamp also creates doubt about the existence of the said lamp inside the hut of the deceased at the relevant time. 53. The learned trial Court also in its finding stated that the circumstances of absconsion of the accused persons is another additional assurance of the guilt of the accused. In his finding, he also stated that I.O. just immediately after the occurrence raided the house of the accused persons, but found them absconding. Thereafter also on repeated occasions, he raided the house of all the accused persons, but found them absconding. In his finding, he also stated that I.O. just immediately after the occurrence raided the house of the accused persons, but found them absconding. Thereafter also on repeated occasions, he raided the house of all the accused persons, but found them absconding. On 22.11.1995 at about 11.00/12.00 p.m. he raided East Dukli Rubber Plantation area and arrested the accused persons namely, Khokan deb, Promode Das Dinabandhu, Maru Karmakar and Swapan Deb and on 27.11.1995 he arrested accused Ratan Das. According to the learned trial Court, the absconsion and situation where the accused persons were found is an incriminating circumstance against the accused persons. 54. The aforesaid finding of the learned Trial Court was supported by Mr. Sarkar, learned P.P. 55. In Thimma vs. State of Mysore (supra), Hate Singh Bhagat Singh vs. State of Madhya Bharat (supra), Rahmah v. State of U.P. (Supra) and Matru alias Girish Chandra vs. State of U.P. (supra), it was held that it is true that the appellant was concealing himself for nearly a month though he must have known that he was wanted by the police and that he left his wife to face the situation alone, but absconding by itself is not conclusive either of guilt or of a guilty conscience, for, a person may abscond on account of fear of being involved in the offence or for any other allied reason. The Apex Court also held that act of absconding is no doubt relevant piece of evidence to be considered along with other evidence, but its value would always depend on the circumstances of each case. Generally the Courts consider it as a very small item in the evidence for sustaining conviction. It cannot certainly be held as a determining link in completing the chain of circumstantial evidence consistent only with the hypothesis of the guilt of the accused. 56. In the instant case, when the accused are admittedly residents of that locality, just after lodging FIR by the informant, the wife of the deceased, implicating them in the alleged case of murder, they might have concealed themselves by way of absconsion which cannot be a ground for coming to a conclusion regarding their guilt. It also an admitted position that while the accused were examined under Section 313 Cr. P.C by the trial Court, the Court did not ask any question to them regarding their absconsion. It also an admitted position that while the accused were examined under Section 313 Cr. P.C by the trial Court, the Court did not ask any question to them regarding their absconsion. Without providing them any opportunity/for explaining the reasons of their absconsion, the said fact cannot be, utilized against them. The absconsion may be a ground for suspicion, but suspicion cannot take place of proof for conviction. Hence, according to us, the contention of Mr. Biswas that even innocent persons may, when suspected of grave crimes, be tempted to evade arrest, such is the instinct of self-preservation in an average human being, holds good. Therefore, in our opinion that absconsion cannot be a ground to come to a conclusion of the guilt of mind of the accused persons and such fact of absconsion should also cannot be used for the purpose of conviction of the accused. 57. Let us now examine the contention of Mr. Sarkar regarding the effect of the evidence of hostile witnesses. We have no quarrel with the proposition laid down by the Apex Court in Koli Lakhmanbhai Chanabhai v. State of Gujarat (supra). By this time it is settled that entire evidence of the hostile witness need not be discarded. Evidence of hostile witness can be relied on by the prosecution if any portion of evidence supports its case and on the basis of such evidence even order of conviction can be passed. But in the instant case, none of the witnesses declared hostile i.e. P.W. 1, 2, 14, 16, 24 and 25 supported the case of the prosecution, even not corroborated the evidence of P.W. 10 and 11 so far identification of the accused appellants are concerned. P.W. 18 is the wife of the deceased, mother of P.W. 10 and 11, on the other hand, supported the case of defence. As regard to the evidence of P.W. 10 and 11, particularly, there is scope of being tutored by their uncle (P.W. 5) while they stayed in his house. P.W. 18 is a hostile witness and when her statement supported the case of the defence, the defence is entitled to get the benefit of the evidence of hostile witness, particularly, when such a hostile witness is the wife of deceased. P.W. 18 is a hostile witness and when her statement supported the case of the defence, the defence is entitled to get the benefit of the evidence of hostile witness, particularly, when such a hostile witness is the wife of deceased. Our aforesaid observation get support from the decision of the Apex Court in the case of Sarvesh Narain Shukla vs. Daroga Singh reported in AIR 2008 SC 320 wherein the Apex Court opined that both the parties are entitled to rely on such part of the evidence of hostile witness which assist their case. 58. As we have come to the conclusion that the identification of the accused persons by the P.W. 10 and 11 is doubtable and keeping in view the other infirmities in the prosecution case, as discussed above, we are of the view that it is not safe to rely on these, child witnesses, we do not consider it necessary to examine other points raised by the learned P.P. The Trial Court has overlooked aforesaid important aspects as well as failed to scrutinize the evidence of the child witnesses critically. Vital infirmities of the prosecution witnesses as pointed out which are not curable at all creates doubt regarding the prosecution case and whenever doubt is created the benefit of doubt should go in favour of the accused persons. Hence, in the instant case, we are of the view that the accused appellants are entitled to get the benefit of doubt and accordingly the impugned judgment of conviction and sentence ought to be set aside. 59. The appeal is allowed. 60. The conviction and sentence recorded by the Addl. Sessions Judge, are hereby set, aside. The accused-appellants shall stand acquitted of the charges framed against them. They are on bail. They need not surrender. They are discharged from the bail bonds. Send down the L.C. records. Appeal allowed.