JUDGMENT K. Hema, J. 1. The appellant along with another person was charge sheeted for offences under Sections 302 and 201 read with Section 34 of Indian Penal Code ('IPC' for short). After trial they were found guilty and convicted for the said offences by the Additional Sessions Court. They were sentenced to undergo imprisonment for life under Section 302 IPC and rigorous imprisonment for a period of one year for offence under Section 201 IPC. The first accused has filed this appeal. It is reported by the Registry that no appeal is filed by the second accused. 2. According to prosecution, on 09.10.2000 at about 6.45 p.m. the first accused along with the co-accused, in furtherance of their common intention, caused the death of Nandakumar @ Kumar also known as "M.G.R." aged 24 years by drowning him into the water in a Panchayath pond. Thereafter, a stone was tied on the dead body and the dresses worn by Nandakumar which were kept by the side of the bank of the pond were thrown into the pond and thereby caused evidence of commission of the offence to disappear with intention to screen them selves from legal punishment. 3. To prove the prosecution case, PW1 to PW17 were examined. Exts.P1 to P9 and MO1 to MO5 were marked. The appellant did not adduce any oral evidence, but marked Exts.D1 to D3 on his side. Ext.X1 was also marked. The appellant was questioned under Section 313 of Code of Criminal Procedure. But he pleaded innocent. He stated before court that during the time of occurrence he was residing in Tamil Nadu. 4. The trial court found that evidence of PWs 2 and 3 are believable. PW3 has seen both the accused and the deceased in a drunken state at about 5.30 p.m. and they went near the pond at about 6.30 p.m. Accused nos.1 and 2 returned to the house at 7.45 p.m. and the deceased was not present along with them. 5. It is also held that evidence of PW3 proves the extra judicial confession relating to commission of offence by the accused. The trial court further held that PW2 also deposed that he had seen the accused and the deceased on 09.10.2010 at about 6 p.m. near his house. He also stated that at about 7.30. 5. It is also held that evidence of PW3 proves the extra judicial confession relating to commission of offence by the accused. The trial court further held that PW2 also deposed that he had seen the accused and the deceased on 09.10.2010 at about 6 p.m. near his house. He also stated that at about 7.30. p.m. both the accused came back to the house and at that time deceased was not present with them. Relying upon certain conduct of the accused the court entered a conviction against the appellant and another. 6. Heard both sides. Perused the records. Points for consideration: i. Whether appellant along with second accused intentionally caused the death of deceased Nandakumar, by dipping his head into the Panchayat Pond and drowning him, as alleged by the prosecution? ii. Whether the appellant and second accused caused evidence to disappear by putting the dresses and the stone MO1 in the pond with intention to screen the mselves from the punishment? iii. Whether the conviction and sentence passed by the lower court are sustainable? 7. Points 1 to 3: Smt.Dhanya P.Asokan, learned counsel for appellant argued that trial court mainly relied upon evidence of PWs 2 and 3 to convict accused for the alleged offences, but they are totally unreliable and unbelievable for various reasons. Sri.Noble Mathew, learned Public Prosecutor vehemently argued that trial court has given cogent reasons to believe the witnesses and their evidence was rightly acted upon. Minor discrepancies in the evidence are not at all a reason to reject their evidence in toto, it is argued by placing reliance upon certain reported decisions. 8. Learned Public Prosecutor also argued that entire evidence has to be looked into to find out whether there is truth in the version of prosecution and if satisfies the conscience of the court, evidence of the witnesses can be acted upon. Evidence of PW2 and PW3 is satisfactory for the reasons stated in the impugned judgment and hence, their evidence can be acted upon, it is submitted. On going through the records and evidence, what strikes our attention most is the identity of the dead body. 9. On the facts of this case, the most important question is whether dead body found in the pond is that of Nandakumar @ Kumar and whether he is dead. On going through the records and evidence, what strikes our attention most is the identity of the dead body. 9. On the facts of this case, the most important question is whether dead body found in the pond is that of Nandakumar @ Kumar and whether he is dead. Can the Court safely conclude that the dead body seen in the pond is that of deceased Kumar? According to prosecution, deceased Kumar was aged 24 years at the time of his death and as per the charge sheet his age is 24 years. In the court charge also, it is mentioned as 24 years. But, the age of the dead body found in the pond was 40-45 years. 10. Ext.P1-F.I. Statement was given by PW1. He had seen the dead body in the pond and as per Ext.P1, the age of the dead body was between 40 to 45 years. The Sub Inspector of Police conducted inquest report on the same day between 10.30 a.m. and 12.30 a.m and in the inquest report, the dead body is that of a male aged 40 years. Thereafter, postmortem examination was conducted on the dead body by none other than a doctor, who is competent to assess the age. He also stated in the postmortem report Ext.P5 that the dead body was that of a male aged 40 years. 11. PW8 is the doctor who conducted postmortem examination and issued Ext.P5 postmortem certificate. He gave evidence that the body was that was a male aged between 40 to 45 years. Ordinarily, it is improbable that a person aged 24 years old will appear to be 40-45 years old. No body has a case that deceased Kumar (though was aged only 24 years) looked 40-45 years old. Of course, PW8, doctor also deposed that the dead body is that of a person aged between 22 and 40 years. But, it is needless to say that even a non-expert will be able to distinguish a person aged 22 years from the one aged 40 years. 12. Any way, as far as the age is concerned, the range spoken to by doctor is too wide. It appears that a statement is caused to be made by the doctor to suit the age of the so-called deceased who is only 24 years old. 12. Any way, as far as the age is concerned, the range spoken to by doctor is too wide. It appears that a statement is caused to be made by the doctor to suit the age of the so-called deceased who is only 24 years old. We find it difficult to act upon the opinion given by the doctor to hold that the body could be that of a boy aged 24 years, especially in the absence of any explanation why a person aged 24 years appeared to be of 40- 45 years old. 13. Section 45 of Evidence Act lays down that when the court has to form an opinion upon a point of science, the opinion upon that point of persons specially skilled in such science is a relevant fact. As indicated in Section 45 of Evidence Act, it is for the court to form an opinion on scientific matters, and while doing so, opinion of an expert is also relevant. The opinion of an expert specially skilled in such science can be admitted in evidence. Nevertheless, it is for the court to decide whether the opinion of the expert should be accepted or not. The court need not blindly accept an expert opinion and act upon the same. While analysing the evidence of PW8 and Ext.P5, we find it difficult to believe that the body seen by the doctor could be aged only 24 years, especially since he also stated that it was aged 40- 45 years. Even the investigating officer also assessed the age to be 40 years and a serious doubt is cast on this aspect. 14. It is in evidence that the pond in which the dead body was found is a public pond and it is accessible to public. PW1 stated that public take bath in this pond. It is a Panchayat pond. There is evidence to show that many persons were taking bath in the pond and therefore, unless the possibility of any person aged 40-45 years having been dead can be ruled out or it is proved that dead body was that of deceased Kumar himself, it would not be safe to conclude that the deceased Nandakumar was the person who was found dead in the Panchayat pond. 15. 15. It is the duty of the prosecution to establish beyond doubt by cogent and satisfactory evidence that the body found in the pond was that of the person who is allegedly murdered in this case. The court must be satisfied that there is no chance for making any mistake in identification of the dead body, as that of deceased Kumar. The deceased admittedly hails from Tamil Nadu and as revealed from the address shown in the charge sheet. 16. PW2 is the only person who identified the dead body as that of deceased Kumar. PW2 is the owner of the house (room) where deceased Kumar lived with deceased Devi for just two months. He stated that he saw the dead body of deceased Kumar lying in the pond situated about 1 mile away from his house. He deposed that dead body was found lying in the pond, with its face down. This fact is stated by PW1 also in his evidence. 17. PW1 deposed that his neighbours informed him that a dead body was lying in the pond which is situated in front of his house and accordingly, he went to see the body. He found the body lying in the pond with his face downwards. The body was naked. There were no dresses on the body. He gave first information about this fact to police. Ext P1 is the First Information Statement. As per Ext P1 the body appeared to be of 40-45 years old. He also stated that he did not see the body when it was taken out and kept outside the pond. 18. However, PW2 deposed that he could identify the body. But, a case diary contradiction was brought out from his evidence. PW2 did not say in court on what basis he identified the dead body which was lying with face downwards. According to him, he had only two months' acquaintance with the deceased. He did not say with reference to what material found on his body or particular feature he identified the dead body. An identification with reference to the dresses was not possible, since the body was naked, as per evidence. 19. No body has a case that deceased Kumar had any sort of deformity which could make identification of the body easier. An identification with reference to the dresses was not possible, since the body was naked, as per evidence. 19. No body has a case that deceased Kumar had any sort of deformity which could make identification of the body easier. For example, there is no case of anybody that he had any loss of finger or that he was lame etc. In such circumstances, there is every possibility for PW2 to commit mistake in identifying the dead body as that of the Kumar especially since he did not see his face and he has no sufficient acquaintance with the deceased for identifying him by seeing back side of his nude body. Anyway, evidence of PW2 is most unsafe to base a conclusion that the dead body which was found in the Panchayath pond was that of Kumar aged 24 years, who is allegedly murdered. 20. During investigation, investigating officer also must have been aware about the discrepancy in the age and the need to get the body identified correctly. The body was found naked and hence some body who has close acquaintance with the deceased must have been caused to identify the dead body. But, nobody from the native place of deceased Kumar or who had acquaintance with deceased was caused to identify the dead body during investigation. The deceased is a refugee residing in a refugee shelter, as per his address. It is not enquired whether there is any body in Tamil Nadu who can identify his body. 21. In this context, it is to be kept in mind that a suggestion was made in cross-examination of witnesses that deceased is still alive. The accused and deceased hail from the same place in Tamil Nadu and they are refugees. It is also pertinent to note that another death also took place in the same night and the person who is murdered is deceased Devi with whom deceased Kumar was living. Both accused in this case were also residing in another room in the same premises and deceased Devi used to prepare food for the accused, for which, they used to pay money to her. 22. But, Devi and accused allegedly had a quarrel on insufficiency of money paid for food and they were motivated to kill her. Both accused in this case were also residing in another room in the same premises and deceased Devi used to prepare food for the accused, for which, they used to pay money to her. 22. But, Devi and accused allegedly had a quarrel on insufficiency of money paid for food and they were motivated to kill her. With this motive, accused allegedly enticed her to come out of the house and took her to a remote road on the pretext that contractor wanted to give her some work on that night. But, accused killed deceased Devi from the road and on the very next day, a crime was registered in respect of unnatural death of deceased Devi. 23. It is, therefore, likely that if deceased Kumar was alive on the next day of that incident, he would have left the place apprehending that he would be the first person to be lifted in connection with the said crime, especially since deceased Devi and Kumar were not husband and wife but, they were into a live- in-relationship only. In this context, the state in which the house/ room where deceased Kumar and Devi lived was found after the incident is noteworthy. It was found barren. It has come out in evidence that 3-4 pieces of clothes (not dresses) and two aluminium vessels alone were found in the room where deceased lived with Devi. 24. There was absolutely no sign of human inhabitation or residence in the room. None of the articles which would normally be used by a couple could be found in the room. It was almost empty, except for 3-4 pieces of clothes and two aluminium vessels. There is no explanation for this emptiness. If the prosecution case is true and the couple lived there, sharing bed and bread, the only possibility is that somebody must have emptied the house immediately after the death of Devi. As the defence suggestion goes, did Kumar leave the room after collecting all his personal belongings on the same night or on the next morning? Is he still alive? 25. There is no explanation why the house was empty. There is no investigation as to who took away the articles from the room. As the defence suggestion goes, did Kumar leave the room after collecting all his personal belongings on the same night or on the next morning? Is he still alive? 25. There is no explanation why the house was empty. There is no investigation as to who took away the articles from the room. In the absence of any explanation for the discrepancies discussed already, it is doubtful whether body of a male aged 40- 45 years recovered from the pond is that of Kumar aged 24 years. The possibility for the body to be that of somebody else aged 40-45 years cannot be ruled out. The investigating officer has no case that he made any enquiry about deceased Kumar in Tamil Nadu. Any way, a serious doubt is cast whether the dead body which looked 40-45 years of age, even to an expert like PW8-the doctor, is that of Kumar himself, who was aged only 24 years. 26. The identity of the body recovered from the public pond is not proved in this case and it is doubtful whether Kumar, who is allegedly murdered in this case, is actually dead. This itself is sufficient for acquitting the accused. Still, this Court as an appellate court being a fact finding court will proceed to consider various other circumstances which are sought to be proved by prosecution to bring home guilt of the accused. The main circumstance which is relied upon by prosecution against accused is that deceased Kumar was last seen alive in the company of accused. 27. According to prosecution, deceased Kumar died at 6.45 p.m on 09.10.2000. and on the same day a few hours prior to that, the deceased was last alive in the company of accused by PWs 2 and 3. They were examined to prove this fact. So also, the appellant allegedly made an extra judicial confession to PW3. It is pointed out by learned Public Prosecutor that very same nature of evidence of very same witnesses was considered by another Division Bench of this court in the case of murder of Devi which took place on the same night and their evidence was accepted and the very same accused were convicted for committing murder of Devi. 28. It is pointed out by learned Public Prosecutor that very same nature of evidence of very same witnesses was considered by another Division Bench of this court in the case of murder of Devi which took place on the same night and their evidence was accepted and the very same accused were convicted for committing murder of Devi. 28. Therefore, it is argued that there is no reason to reject the evidence of PW2 and PW3 and it may be acted upon to hold the appellant also guilty. A reading of the deposition of PW2 shows that he did not state specifically that he saw the deceased last alive with accused. He only stated in court that he told the police that deceased was last seen alive in the company of accused etc., as recorded in Ext. P2 series. When various portions from case diary were put to PW2, he admitted that he stated so to the police and those were marked as Ext.P2 series. But, his evidence does not reveal whether the version given to the police as stated in Ext.P2 series is true or not. No evidence was elicited from PW2 that deceased was last seen alive with accused. 30. The portions of case diary statement, which are recorded in the deposition, with the first word and last word with dots in between will not constitute "evidence" relating to the facts disclosed from such portions. Unless the witness specifically deposes in court the facts which are perceived by his senses relating to relevant facts, it will not amount to "evidence", as per Section 3 read with Section 60 of Evidence Act. So, evidence of PW2 will, at best, may reveal that he gave a statement to police in a particular way, but, that is not sufficient to prove that he saw deceased and accused together on the crucial day. 31. A reading of Section 162 of the Code of Criminal Procedure ('the Code' for short) shows that the statement recorded under Section 161 of the Code shall not be used for any purpose other than what is stated therein. Such portions can be used only for contradiction and for explaining such contradiction, as per Section 162 of the Code. But, Ext.P2 series were used by prosecution not for contradicting the witnesses. The court used it as "evidence" also. Such portions can be used only for contradiction and for explaining such contradiction, as per Section 162 of the Code. But, Ext.P2 series were used by prosecution not for contradicting the witnesses. The court used it as "evidence" also. Therefore, the court below committed an illegality in allowing use of portions of the case diary statements of witnesses by prosecution for the purpose other than what is laid down in Section 162 of the Code and also as "evidence". 32. PW3 is examined to prove alleged extra judicial confession also. He narrated a story before court to make it appear that accused were guilty of committing murder of deceased Kumar and that an extra judicial confession was made to him by them. PW3 deposed that he knows the accused and they were residing in the house on rent for about two months. Deceased Kumar was also residing with the accused in the same house, he stated. But, on an analysis of evidence in this case, it is even doubtful whether he was residing in the room with the deceased or accused. 33. PW3 was aged about 19 years at the time of the incident. According to prosecution, this witness was brought from Tamil Nadu along with the accused. He claimed that that he was residing in a room in the house belonging to PW2 in the same premises. But, there is nothing in the evidence of PW2 to show that PW3 had resided in the house at any time or at least during the relevant period. Neither PW2 nor PW4-his niece has a case that PW3 had resided in the room rented out to the deceased. PW2 categorically deposed that PW3 was not his tenant. 34. The above facts cast a doubt whether PW3 could be present in the premises during the relevant time. A close scrutiny of his evidence also confirms that he was not present during the relevant period anywhere in the locality. In chief examination, in the beginning itself, he deposed that he had gone to his native place, one week prior to the incident and thereafter, he had not returned. He also stated that he did not know anything about the murder of Devi. PW3 also deviated from his earlier versions and stated some other new facts in court. 35. In chief examination, in the beginning itself, he deposed that he had gone to his native place, one week prior to the incident and thereafter, he had not returned. He also stated that he did not know anything about the murder of Devi. PW3 also deviated from his earlier versions and stated some other new facts in court. 35. Certain contradictions are also brought in the evidence of PW3 to point out that there can be no chance for this witness to make any extra judicial confession to PW3. PW3 stated in chief examination that extra judicial confession was made regarding the involvement of appellant while he was going in an autorickshaw along with accused to Edappally junction. He stated that he went to his native place in a lorry and first accused went to Dinduckal. However, in cross-examination, it is brought out from PW3 that on the date of occurrence he had gone in an autorickshaw to Kalamassery and from there, he walked for some distance and got into a bus from Ernakulam to Thrissur. That was the statement given by him, while he was examined in the case in which Devi was murdered and the deposition is marked as Ext.D2. 36. Any way, both of them, PWs 2 and 3, deviated form their earlier version given to police and they were declared as hostile, at the request of the prosecution. They were permitted to be cross examined by prosecution. Therefore, an important question of law arises whether their evidence as "hostile witnesses" can be relied upon by the prosecution to establish its case. There is no provision in the Evidence Act which refers to the expression, "hostile witness" nor there is any provision which lays down how and under what circumstances a witness can be declared or treated as "hostile". The term "hostile witness", "declared hostile" etc., are judge-made expressions. 37. Still, in the nature of the contentions raised in this case, it is necessary to consider the scope of Section 154 of Evidence Act. Section 154 of Evidence Act reads as follows: "154-Question by party to his own witness:- (1) The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. Section 154 of Evidence Act reads as follows: "154-Question by party to his own witness:- (1) The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. (2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness". 38. There can be no dispute that examination of a witness by a party who calls the witness is referred to as Chief examination and the examination by the opposite party is known as cross- examination. As per Section 154(1) of Evidence Act, a party who calls a witness may be permitted by the court to put any questions which might be put in cross-examination by adverse party. This is done, practically, by treating the witness as hostile or declaring him to be so. Thereby, any answer can be brought in evidence from a witness who is called by a party by way of suggestions or by putting leading questions, if the court grants permission under Section 154(1) of Evidence Act. 39. However, Section 154(2) lays down that nothing in this section shall disentitle the person so permitted under sub- section (1) to rely on any part of the evidence of such witness. Sub-section (2) of Section 154 of Evidence Act is very significant. In the light of the above provision, it may not be proper for a court to reject the evidence of a hostile witness in its entirety. A party will be entitled under Section 154(2) to rely on any part of a hostile witness, who is permitted to be cross-examined under Section 154(1). However, there is a rule of caution, while doing so. 40. It must be borne in mind that a hostile witness who has been subjected to cross-examination by the party who calls him "may" not be honest to himself. Having given up his own prior statements and by giving totally a different version in court, deviating from his earlier version, he may not be trustworthy. There may be other reasons also why credibility of such a witness is lost, by the nature of his evidence. A hostile witness may simply affirm whatever suggestive questions are put to him on crucial facts, without any sense of responsibility. 41. There may be other reasons also why credibility of such a witness is lost, by the nature of his evidence. A hostile witness may simply affirm whatever suggestive questions are put to him on crucial facts, without any sense of responsibility. 41. However, Section 154(2) of Evidence Act permits the party (who calls the witness) to rely upon any part of such evidence. Still, there is no mandate that such portions shall be acted upon by court. The court need not treat such evidence as gospel truth. Therefore, as a rule of caution, the court shall insist for corroboration to the evidence given by a hostile witness from reliable source before portions of his evidence are acted upon. 42. However, it must also be stated in this context that if the evidence of the so-called hostile witness is not discredited in cross-examination or in any other manner, there is no bar for the court to act upon such version. However, if evidence of a hostile witness is discredited in cross-examination and if the court wants to rely upon any portion thereof, the court must ensure that it is corroborated by other reliable and credit worthy evidence. This is very important. So, it follows that evidence of a hostile witness cannot be used to corroborate evidence of another hostile witness, if their evidence is shaken or shattered in cross- examination by contradictions or by any other reasons. 43. The reliable portions of evidence of a hostile witness, whose evidence is discredited, can be used only if there is other legally admissible and reliable evidence corroborating such portions. Thus, even though a party is permitted to rely upon the evidence of a hostile witness, as per Section 154(2) of Evidence Act, there is no rule that under all circumstances the court shall act upon such evidence. The court must be cautious before acting upon portion of evidence of a hostile witness and such portions can be used, only if it is corroborated by any other evidence, which is reliable and credit worthy. 44. If the court finds that a portion of the evidence of a hostile witness can be relied upon, it is open to the court to do so, depending on the facts and circumstances of the case. 44. If the court finds that a portion of the evidence of a hostile witness can be relied upon, it is open to the court to do so, depending on the facts and circumstances of the case. But, it is subject to the caution that some dependable part of such evidence is duly corroborated by some other reliable evidence available on record. Evidence of a hostile witness cannot be acted upon to prove a particular fact, unless some other evidence is available on the same fact, which is free of blemishes. In other words, portions of a hostile witness can be used only if some other reliable and admissible evidence on the same facts available on record. This is a rule of caution in appreciation of evidence. 45. In Podyami Sukada v. State of Madhya Pradesh ( (2010) 12 SCC 142 ) (vide also Himanshu v. State (NCT of Delhi) (2011) 2 SCC 36 ), it was held thus: "11. As stated earlier, all the witnesses to the extra-judicial confession have been declared hostile by the prosecution. True it is that the evidence of the hostile witness is not altogether wiped out and remains admissible in evidence and there is no legal bar to base conviction on the basis of the testimony of hostile witness but as a rule of prudence, the court requires corroboration by other reliable evidence". 46. But, in this case, no other evidence is available on the same aspects spoken to by PW2 and PW3. So, no portion of evidence given by PWs 2 and 3 can be acted upon to hold that they saw the deceased last seen alive with accused or that accused made extra judicial confession. Any way, evidence of PW2 and PW3 is not at all safe to be acted upon, without corroboration from any other reliable evidence. No conviction can also be made based on such evidence. Thus, prosecution has failed to prove last seen theory and also extra judicial confession. 47. The next piece of circumstance is the recovery of MOs 1 to 5, which are the dresses allegedly worn by deceased and the stone used for sinking the dead body in the pond by the accused. Prosecution sought to prove this circumstance with the aid of Section 27 of Evidence Act. PW16-the investigating officer has given evidence regarding recovery. 47. The next piece of circumstance is the recovery of MOs 1 to 5, which are the dresses allegedly worn by deceased and the stone used for sinking the dead body in the pond by the accused. Prosecution sought to prove this circumstance with the aid of Section 27 of Evidence Act. PW16-the investigating officer has given evidence regarding recovery. Trial court has not relied upon the evidence which may be relevant under Section 27 of Evidence Act. We find that the finding of trial court with respect to evidence on recovery is sound and acceptable. 48. Any way, accused cannot be convicted on the basis of the nature of evidence adduced in this case which is shabby and unacceptable even to conclude that the body seen in the Panchayat pond is that of Kumar, aged 24 years, who is allegedly murdered in this case. The prosecution failed to prove its case by satisfactory evidence and hence, conviction and sentence passed against the appellant are unsustainable. In the result, the following order is passed: i. The conviction and sentence passed against the appellant are set aside. ii. The appellant is found not guilty and he is acquitted of offences under Sections 302 and 201 read with Section 34 of Indian Penal Code. iii. The appellant is set at liberty forthwith. iv. The Registry shall issue release memo to the Superintendent of the prison concerned forthwith. This appeal is allowed.