JUDGMENT Biplab Kumar Sharma, J. 1. We have heard Mr. P.K. Biswas, learned Counsel appearing for the Appellants as well as Mr. R.C. Debnath, learned Special Public Prosecutor, Tripura, for the Respondent. 2. This appeal is directed against the judgment of conviction and sentence dated 18.12.2006, passed by the learned Addl. Sessions Judge, Sonamura, West Tripura, in case No. S.T. 43(WT/S) of 2005, by which the three accused-Appellants have been convicted under Section 302 read with Section 34 IPC with the sentence of rigorous imprisonment for life and to pay a fine of Rs. 2,000/- and in default to suffer further rigorous imprisonment for three months. 3. The criminal proceeding was set to motion with the lodging of FIR by one Abdul Kader (P.W. 1) stating therein that, on 01.11.2004 at about 11.30 am, his younger brother Abdul Karim (the deceased) while working in his home, the cattle of one of the accused Haradhan Dey damaged the saplings of the deceased's garden at the jackfruit orchard. Such damage being caused, altercation took place between Haradhan and the deceased. Subsequently, the other brothers of Haradhan came to the place of occurrence with a view to kill the deceased. They dealt with blows from the backside with sharp weapons, as a consequence of which, the deceased fell down and thereafter, he was taken to Kathalia hospital in bleeding condition, from where, he was taken to G.B. Hospital, Agartala, but he died. According to FIR, when the assault was on, hearing hue and cry, people gathered at the place of occurrence. 4. On the basis of the aforesaid FIR, Jatrapur P.S. Case No. 27 of 2004, dated 01.11.2004 was registered under Sections 326/302/447/34 IPC. 5. After causing investigation etc., charge was framed against four accused persons, the fourth accused being one Sri Shibu Dey. The case being exclusively triable by the Courts of Sessions, the same was committed to the said Court. During trial, prosecution examined as many as 22 P.Ws. and exhibited certain documents including the statement of P.W. 6, recorded under Section 164 Code of Criminal Procedure. 6. While Mr. Biswas, learned Counsel for the Appellants submits that based on one evidence, the learned trial Court convicted the accused-Appellants, Mr. Debnath, learned Special Public Prosecutor, upon a reference to the evidence of the witnesses, more particularly P.Ws. and exhibited certain documents including the statement of P.W. 6, recorded under Section 164 Code of Criminal Procedure. 6. While Mr. Biswas, learned Counsel for the Appellants submits that based on one evidence, the learned trial Court convicted the accused-Appellants, Mr. Debnath, learned Special Public Prosecutor, upon a reference to the evidence of the witnesses, more particularly P.Ws. 2, 3, 4, 5 and 6, submits that the evidence being overwhelming to establish the evidence committed by the accused-Appellants, it is not a fit case to entertain with the findings recorded by the trial Court. 7. We have given our anxious consideration to the submission made by the learned Counsel for the parties. We have also perused the entire materials on record. Before dealing with the evidence and the rival submissions made by the learned Counsel for the parties, it would be appropriate to state at this stage that the fourth accused Shibu Dey, against whom also charge under Section302 read with Section 34 IPC was framed, has been acquitted by the trial Court on the ground that the said accused did not participate in the commission of the offence in any manner. 8. The learned trial Court, while convicting the accused Appellants, has primarily placed reliance on the evidence of P.Ws. 4, 5 and 6, more particularly that of P.W. 6. As has been observed by the learned trial Court and also submitted by the learned Special Public Prosecutor, P.W. 6 is stated to be the only eye witness to the occurrence. 9. P.W. 4, Smti Rehena Khaton, in her deposition stated that, at about 11/11.30 am on the fateful day, while her husband was working in the jackfruit orchard, he saw the cattle of the accused persons damaging the jackfruit plants and accordingly called Haradhan to take the cattle back. Being annoyed, Haradhan rebuked him and subsequently her husband slapped Haradhan. Thereafter, Haradhan went back home and came back to the place of occurrence along with his other three brothers and started assaulting the deceased with dao etc. As per her statement, Ramu gave dao blow on her husband and all the accused persons brutally assaulted her husband, resultantly he fell on the ground and the witness also became unconscious. Thereafter, Haradhan went back home and came back to the place of occurrence along with his other three brothers and started assaulting the deceased with dao etc. As per her statement, Ramu gave dao blow on her husband and all the accused persons brutally assaulted her husband, resultantly he fell on the ground and the witness also became unconscious. After some time she regained her consciousness, when she came to know that her husband was taken to hospital from where he was sent to G.B. Hospital, but he died on the same day at about 4.20 pm. In her cross examination, although she stated that he had told the Darogababu i.e. the IO that she had seen the accused persons assaulting her husband, but her attention was drawn to the statement under Section 161 Code of Criminal Procedure and it was found that there was no such statement. The cross examination of this witness further revealed that she had regained her consciousness at about 7 pm. 10. P.W. 5, Smti Rajia Khaton, in her deposition also stated about her visit to the place of occurrence. Although this witness in his deposition in chief stated about seeing four persons running away from there, but did not implicate the accused Appellants by name. In her cross examination, this witness stated that she was plastering the mud wall along with the wife of the deceased i.e. P.W. 4. 11. P.W. 6, Sri Manjur Hussain is stated to be the eyewitness, who is the son of the deceased. He, in his deposition, narrating the incident, stated that accused Haradhan came with his cattle, which were damaging the jackfruit plants. When his father i.e. the deceased objected to that, Haradhan abused him and resultantly the deceased slapped him. Thereafter, Haradhan went back home and came back to the place of occurrence along with other accused persons. This witness, who was only 11 years of age, also stated in his deposition that the accused persons by embracing the deceased, assaulted him with dao. According to him, Haradhan also assaulted his father with a kirich. Seeing the assault, he started crying, hearing which, his mother i.e. P.W. 4, Rehana Khaton, P.W. 5, Smti Rajia Khaton, Noor Miah (not examined), Jamal Miah (P.W. 8) and Habil Miah (not examined) and others came to the place of occurrence. 12. According to him, Haradhan also assaulted his father with a kirich. Seeing the assault, he started crying, hearing which, his mother i.e. P.W. 4, Rehana Khaton, P.W. 5, Smti Rajia Khaton, Noor Miah (not examined), Jamal Miah (P.W. 8) and Habil Miah (not examined) and others came to the place of occurrence. 12. P.W. 7, Halim Miah also narrating the incident, stated in his deposition about the assault by the accused persons to the deceased, however, he did not see the occurrence. He specifically mentioned about the assault being made by Shibu Dey along with others. This witness is a reported witness and in his deposition, he stated that he was so reported by P.W. 6. In cross examination, this witness stated that while making deposition under Section 161 Code of Criminal Procedure before the IO, he had stated that P.W. 6 was going towards south crying that his father was killed. He also stated that he has stated to the IO that on being asked, P.W. 6 had told him that his father was assaulted by Shibu Dey and others. When attention of this witness was drawn to his statement made under Section 161 Code of Criminal Procedure, it was found that no such statement was made. 13. Likewise, although P.W. 8, Sri Jamal Miah, who is also a reported witness, has stated about the incident on being reported by the wife of the deceased i.e. P.W. 4, but in his cross examination, on being pointed out that he did not make any such statement under Section 161Code of Criminal Procedure, this witness admitted the same. However, in the said statement it was stated that the sons of Birendra Dey assaulted the deceased. 14. P.W. 6, in his statement made under Section 164 Code of Criminal Procedure stated about the incident in which he narrated the incident reflected in his aforesaid deposition. According to him, after his father had given a slap to Haradhan, he went away from the place, taking his cows and thereafter, came along with his three brothers to the place of occurrence. In the statement, he also named Shibu Dey, specifically stating that Shibu had nothing in his hand, but he shouted for bringing the deceased out from his house. Thereafter, Shibu caught hold of the deceased's waist and others assaulted him, as a result of which the deceased fell down. 15. In the statement, he also named Shibu Dey, specifically stating that Shibu had nothing in his hand, but he shouted for bringing the deceased out from his house. Thereafter, Shibu caught hold of the deceased's waist and others assaulted him, as a result of which the deceased fell down. 15. The learned trial Court has primarily relied upon the aforesaid depositions of P.W. 6. Mr. Debnath, learned Special Public Prosecutor, has placed reliance on the decision of the Apex Court, reported in Jai Bhagwan and other vs. State of Haryana, AIR 1999 SC 1083 in which the Apex Court disbelieved the plea of self defence. In that case, occurrence took place in land in possession of the accused persons. Deceased and his sons had come to the land of the accused persons to irrigate the same. The Apex Court held that the said occurrence amounted only to criminal trespass within the meaning of Section 411 and that, right of accused could not extend to causing death, but extended only to causing harm other than death. In the said case, the accused persons inflicted fatal injuries causing death of the deceased. In the circumstances, it was held that, it was a case of murder. 16. The above case has been pressed into service so as to contend that even if the deceased had given a slap to the accused Appellants, that by itself could have led the murderous assault on the deceased by the accused Appellants. 17. Mr. Biswas, learned Counsel appearing for the accused Appellants, placing reliance on the decision of the Apex Court, reported in Harchand Singh and another vs. State of Haryana, AIR 1974 SC 344 has contended that, as in the said case, in the instant case also the prosecution having led two sets of evidence, each one of which contradicts to other, it will not be safe to uphold the conviction of the accused Appellants. 18. The P.W. 6, who was a minor, both at the time of the occurrence as well as when he made the deposition, stated in his evidence that, his father had slapped Haradhan and thereafter, he went back to his home and came back with his other brothers to the place of occurrence. According to this witness, Bipul Dey embraced his father and Ramu Dey gave a dao blow at the backside and consequently, his father fell down on the ground. According to this witness, Bipul Dey embraced his father and Ramu Dey gave a dao blow at the backside and consequently, his father fell down on the ground. This witness also stated that, Haradhan also assaulted his father with a kirich. He, in his deposition during trial as well as in his statement under Section 164 Code of Criminal Procedure, stated about raising hue and cry, hearing which the other witnesses mentioned above came to the place of occurrence. He never stated of visiting other persons, raising hue and cry after the incident had taken place. 19. In the above context, it will be appropriate to refer to the evidence of P.W. 2, Abdul Rahim, who is the eldest brother of the deceased. He, in his deposition, stated that, P.W. 6 had came running to his house to tell about the assault on his father by the accused persons. Likewise, P.W. 7, Halem Miah also in his deposition, stated about visiting him by P.W. 6 to tell about killing of his father by the accused persons. P.W. 10, Harun Rashid also in his deposition, stated that P.W. 6 came running to his house and told him about his father being brutally assaulted by Shibu Dey and his three brothers. 20. From the above, it is found that there are three witnesses, who in their deposition, stated about visiting to their respective houses by the P.W. 6 to narrate the incident of assaulting his father by the accused persons, but on the other hand, as per the own statement of P.W. 6, both during trial and in his statement under Section 164 Code of Criminal Procedure, he never stated about his visit to the houses of the said P.Ws., but only stated that, he remained at the place of occurrence. Interestingly, P.W. 6, in his cross examination, categorically stated that, before going to hospital, he was at his house and did not go anywhere. If that is so, it is not understood as to how the aforementioned three witnesses could depose that P.W. 6 had come to them in a crying condition and narrated about the incident. 21. Interestingly, P.W. 6, in his cross examination, categorically stated that, before going to hospital, he was at his house and did not go anywhere. If that is so, it is not understood as to how the aforementioned three witnesses could depose that P.W. 6 had come to them in a crying condition and narrated about the incident. 21. Another interesting feature is that, in his statement under Section 164 Code of Criminal Procedure, P.W. 6 categorically stated that he was all along at the place of occurrence and that out of fear that the accused Appellants might also assault him, he kept himself hidden at a distance of 7/8 cubits. It is in view of the above contradiction, which leads to two sets of evidence, Mr. Biswas, learned Counsel for the accused Appellants has placed reliance on the decision reported in Harchand Singh (supra). 22. In the aforesaid case, the two accused were arraigned in the assault on the deceased as a result of which the latter died. The prosecution in support of its case examined two sets of eyewitnesses. The evidence of one set consisted of the testimony of three eyewitnesses, who were not present at the time of the occurrence and according to the fourth eyewitness, who according to the prosecution case was with the deceased at the time of the assault. The fourth eyewitness was also shown to be an unreliable witness by the other evidence produced by the prosecution. It was held that it was a case wherein one set of evidence condemned the other set leaving the Court with no reliable and trustworthy evidence upon which the conviction of the accused might be based. 23. In the present case also there are two versions of the witnesses. While the P.W. 6 stated about his constant present at the place of occurrence, but the aforementioned three witnesses stated that P.W. 6 came running in a crying condition to them to narrate the incident. Coupled with this, the fact that this witness i.e. P.W. 6 was a minor both at the time of making the statement under Section 164 Code of Criminal Procedure as well as while deposing in the trial, we are of the considered opinion that it will be unsafe to place reliance on the sole testimony of his evidence to convict the accused Appellants. Situated thus, we hold that the accused Appellants are entitled to the benefit of doubt. 24. Another aspect of the matter needs mention is that, the learned trial Court has acquitted the other co-accused, namely, Shibu Dey on the ground of his non-participation in the incident although he was present at the place of occurrence. However, as discussed above, even the P.W. 6, in his deposition, stated about the involvement of Shibu Dey in the incident. If Shibu Dey could be acquitted coupled with the fact that there is no evidence as to the part played by the accused Appellants, we are of the opinion that the accused Appellants are also liable to be acquitted on the benefit of doubt. 25. In view of the above, the appeal is allowed by setting aside the impugned judgment of conviction and sentence mentioned above. The Appellants be set at liberty forthwith, if not wanted in connection with any other case. Appeal allowed.