JUDGMENT Ashim Kumar Roy, J. 1. This appeal is directed against the order of conviction and sentence passed in Sessions Trial No. 18 of 1988 held before the learned Additional Sessions Judge, 1st Court, Jalpaiguri, in which both the appellants, Ananta Deb Adhikary and Lankeshwar Roy, were convicted under sections 302/149 of the Indian Penal Code and sentenced to suffer imprisonment for life with fine and default clause. In the said trial these two appellants along with 10 others were charged under sections 302/149 of the Indian Penal Code. The case of the prosecution shorn of detail is as follows:- On March 25, 1985, Bhisma Deb Roy, the deceased at about 9.30 p.m. while after meeting the Prodhan of Jhariatala Gram Panchayat and other members of the Krishak Samity was returning home in his cycle through the Kachha Rasta which is situated in the East of the river Galandi, he was attacked by the appellants and their associates who were waiting there before hand for his arrival. At night he did not return home and on the next morning, his dead body was discovered, which was lying in a pool of blood. Thereafter the police was informed and from the place of occurrence certain alleged incriminating articles and the personal belongings of the deceased were seized. In post-mortem examination, it was found that the death was homicidal in nature and the injuries, which caused the death, were ante-mortem. 2. There is no dispute that this is a case based entirely on circumstantial evidence. It is now well-settled in a case based on circumstantial evidence not only the links in the chain of circumstances be proved beyond all reasonable doubts at the same time the circumstances so proved must be compatible with the guilt of the accused and the fact established must rule out likelihood the innocence of the accused. 3. In course of trial the prosecution examined 21 witnesses to prove the guilt of the appellants. However, the defence examined none and from the trend of cross-examination and the answer given by the appellants in their cross-examination under section 313 Cr. PC. it appears the case of the defence is one of innocence and false implications. 4. 3. In course of trial the prosecution examined 21 witnesses to prove the guilt of the appellants. However, the defence examined none and from the trend of cross-examination and the answer given by the appellants in their cross-examination under section 313 Cr. PC. it appears the case of the defence is one of innocence and false implications. 4. So far as the prosecution case that the death of Bhisma Deb Roy was the result of injury found in his person and same are ante-mortem and homicidal in nature has not been disputed from the side of the appellants. We have also carefully gone through the deposition of the post-mortem doctor as well as through the post-mortem report and have no reason to take a different view from that of the autopsy surgeon. 5. The learned Counsel for the appellants appearing before us first contended that although it is claimed by the prosecution witnesses in their evidence that the bicycle of the deceased was found lying at the place of occurrence but such feet was never disclosed in the First Information Report, this adversely touches the credibility of the prosecution case and for this lacuna alone the entire prosecution case has to be given a go-bye. In this regard he relied on a decision of the Hon'ble Supreme Court in the case of Sujoy Sen vs. State of West Bengal, reported in 2007 Cr. LJ 3727. We have very carefully gone through the same and find the Apex Court refused to rely on the prosecution story as the omissions in the First Information Report were not on mere details but were of such nature which distort the substratum of the prosecution story. In this case the discrepancy pointed out to us is not on vital aspect of the case but on incidental fact and that does not justify to disbelieve the entire prosecution case. The learned Counsel of the appellants also relied on two more decisions of the Hon'ble Apex Court. The first one is reported in (2011) 2 SCC (Cri) 632 in the case of Kuldip Yadav and Ors. vs. State of Bihar and the next one is the case of Gambhir vs. State of Maharashtra, reported in s (1982) 2 SCC 351 . The first one is reported in (2011) 2 SCC (Cri) 632 in the case of Kuldip Yadav and Ors. vs. State of Bihar and the next one is the case of Gambhir vs. State of Maharashtra, reported in s (1982) 2 SCC 351 . On the other hand, the learned Counsel for the State vehemently urged before this Court that the unchallenged evidence of the prosecution witnesses goes to show that immediately before the incident the appellants were found being armed with deadly weapons at the place where the dead body was discovered subsequently and therefore there cannot be any doubt that Bhisma Deb Roy was murdered by them and none-else. He further contended that the time when the appellants were found at the place of occurrence is so closed to the time when Bhisma Deb Roy was killed the same is only compatible with the guilt of the accused and the Trial Court very rightly convicted the appellants. He submitted that the sentence is very much commensurate with the gravity of the offence. 6. We have given our anxious and thoughtful consideration to the rival submissions of the parties. We have very carefully perused the impugned judgment and gone through the evidence on record. We find that the entire prosecution case hinges on the only circumstance that just before the alleged incident of murder of Bhisma Deb Roy at 8/8.30 hours on 25th of March, 1985 the accused persons were found being armed with various deadly weapons at the place where dead body was subsequently discovered. 7. Now, before entering into the further details of the case, we find this is a case these two appellants along with 10 others were tried on a charge under section 302/149 IPC on the allegations that they were the members of an unlawful assembly and in prosecution of common object of such assembly to murder Bhisma Deb Roy they intentionally caused death of him. There is nothing in the charge that besides the said 12 accuseds including the present two appellants there was any other persons who were in the said unlawful assembly. Now having regards to the acquittal of 10 co-accuseds the charge against the appellants under section 302/149 IPC is liable to be failed and there is no scope to convict them thereunder. 8. Now having regards to the acquittal of 10 co-accuseds the charge against the appellants under section 302/149 IPC is liable to be failed and there is no scope to convict them thereunder. 8. Now, coming to the evidence of the prosecution witnesses we find according to the P.W. 3 on 25th March, 1985 at about 8/8.30 while he was returning home from the house of one of his relations he found the appellant Lankeshwar Roy with others were gossiping near a bamboo groves and on the next morning when he got the information that Bhisma Deb Roy was murdered, he went to the spot and found his dead body was lying near to the place where he on the previous night found the appellant Lankeshwar Roy gossiping with others. Besides that this witness has not deposed anything as regards to the alleged incident. 9. The next witness P.W. 4 Jogeswar Mondal in chief admitted he heard about the presence of the appellants and others at the place of occurrence from P.W. 7 Jiten Kabiraj but the P.W. 7 never claimed to have told such fact to the P.W. 2, therefore the evidence of P.W. 4 remains within the realm of hearsay evidence and is inadmissible in evidence and cannot also be pressed into service to corroborate the P.W. 7. 10. According to the P.W. 7 Jiten Kabiraj on 25th of March, 1985 at about 8/8.30 p.m. while he was passing through the place of occurrence he found some persons were sitting near the bamboo grove and then he asked them about their identity and recognized both the appellants and another. Now question is if the witness able to recognize both the appellants it is not quite unnatural for him to ask their identity. That apart the witness claimed at that time he was accompanied by two others P.W. 9 Nagar Chandra Sarkar and Bhawda Bhagat not examined. Apart from fact the witness had only allegedly found the appellants at the place where the dead body was subsequently found there is nothing on his evidence pointing towards the guilt of the appellants but on the point of identification of the appellants as the person present there we are of the opinion his evidence is not wholly reliable. Moreover, this witness admitted in his evidence the place was dark being surrounded by bamboo grove. 11. Moreover, this witness admitted in his evidence the place was dark being surrounded by bamboo grove. 11. The P.W. 9 Nagar Chandra Sarkar who according to the P.W. 7 was accompanied him has come out with a new story. In his evidence the P.W. 9 claimed that while he was passing through the place of occurrence he found the appellants and others standing there being armed with various deadly weapons and a dead body was lying there. It is his further evidence at that time the appellant Lankeshwar asked the other miscreants to kill him and his companion Bhawda Bhagat and then spared him threatening that if he disclosed anything about what he saw he will be killed. The witness claimed on the next day he had been to the place of occurrence where the dead body was lying and met many others. But we find from the evidence of P.W. 19, the Investigating Officer of the case that this witness was never examined by him during investigation. On the face of such evidence in our opinion it would not at all be safe to rely on the testimony of P.W. 9 Nagar Chandra Sarkar, who in spite of having witnessed the occurrence and not being prevented by any justifiable reason has not reported the same to the police. We find that none of the other two police officers, viz. P.W. 16 and P.W. 17 also did not claim to have examined the P.W. 7 during investigation. 12. In this case Bhawda Bhagat appears to be a very vital witness as it transpires from the evidence of P.W. 9 Nagar Chandra Sarkar and his non-examination during trial is of course fatal to the prosecution. Now coming to our final conclusion, we are of the opinion that the only circumstance pitted against the appellants is not only insufficient but also the witnesses through whom the prosecution during trial attempted to prove its case are not at all reliable, accordingly the order of conviction and sentence recorded against the appellants cannot be sustained and same is set aside. In the result appeal stands allowed. The appellant No. 1 Ananta Deb Adhikary who is now on bail be discharged from the bail bonds and the appellant No. 2 Lankeshwar Roy who is in custody at once be released from jail, if not he is not detained in connection with any other case. In the result appeal stands allowed. The appellant No. 1 Ananta Deb Adhikary who is now on bail be discharged from the bail bonds and the appellant No. 2 Lankeshwar Roy who is in custody at once be released from jail, if not he is not detained in connection with any other case. The Lower Court Records also to be sent down to the Trial Court. Criminal section is directed to deliver urgent Photostat certified copy of this Judgment to the parties, if applied for, as early as possible. I agree. Appeal allowed