Judgment :- Dipak Saha Ray, J. A common Judgment and order of conviction and sentence have been assailed in two criminal appeals. For the sake of convenience of discussion and arriving at a just decision, both the appeals viz. CRA No.12 of 2004 and CRA No. 459 of 2006 are taken up together. The aforesaid two appeals are directed against the Judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, (Special Court) Jalpaiguri, in Sessions Trial No. 22 of 2003, arising out of Sessions Case No. 175 of 2002 under Section 304/34 of the Indian Penal Code. The said case was started on the basis of a written complaint filed by one Sorojen Ray, on 05.09.2001 before the Inspector-in-Charge, Kotwali Police Station, Jalpaiguri Sadar. The de-facto complainant in his written complaint has alleged that on 04.09.2001 at about 12.30 a.m. at midnight four persons came at a tank known as Grampranchayit Pukur and started stealing fish from the said tank. At that time Subodh Roy and Ratiswar Roy who were guarding the said tank, resisted the said four persons. As a result, the said four miscreants attacked both the guards and assaulted them with sticks. As a result, Subodh Roy became senseless at the spot Ratiswar Roy raised hue and cry and somehow or other managed to escape therefrom. On hearing the said hue and cry villagers came at the spot and managed to apprehend the said four miscreants. Subsequently, when Subodh Roy was taken to Jalpaiguri Sadar Hospital, the doctor declared him as “brought dead”. It is further alleged in the said written complaint that on interrogation the said miscreants disclosed their names as Prabir Chandra Dey, Ramesh singh, Gurudas Roy and Nitya Roy. Two fishing nets, one dagger and cycles were recovered from the possession of the said miscreants. On the basis of the said written complaint, Kotwali Police Station Case No. 289 of 2001 dated 05.09.2001 under Section 304/34 of the Indian Penal Code was started. Police investigated the case and after completion of investigation submitted charge sheet against four accused persons namely Prabir Chandra Dey, Ramesh singh, Gurudas Roy and Nitya Roy under Section 304/34 of the Indian Penal Code. On the basis of the aforesaid allegations and other relevant materials, the aforesaid four accused persons were tried for the offences punishable under Section 304/34 of the Indian Penal Code. On the basis of the aforesaid allegations and other relevant materials, the aforesaid four accused persons were tried for the offences punishable under Section 304/34 of the Indian Penal Code. All the accused persons, however, pleaded not guilty and claimed to be tried when the said charges were read over and explained to them. As against this, the defence case, as it appears from the trend on cross-examinations and the statements made during examination of the accused persons under Section 313 of the Code of Criminal procedure, was the denial of the prosecution allegations and plea of innocence. The prosecution, in order to discharge the burden of establishing the guilt of the accused persons, examined 16 witnesses. After taking into consideration of all relevant facts and circumstances and the evidence on record, the learned Trial Court found the accused persons guilty for the offences punishable under Section 304/34 of the Indian Penal Code and they were convicted accordingly. They were sentenced to suffer Rigorous Imprisonment for 7 (seven) years each. Being aggrieved by and dissatisfied with the impugned Judgment and Order of conviction and sentence, the aforesaid four convicts namely Prabir Chandra Dey, Ramesh singh, Gurudas Roy and Nitya Roy as appellants have preferred two separate appeals which have been registered as C.R.A No. 12 of 2004 and C.R.A No. 459 of 2006 respectively. After taking into consideration all relevant facts and circumstances and materials on record and giving due regard to the submissions made by the learned Counsel for both the parties, I think that the only point requiring adjudication in this case is whether or not the impugned judgment and order of conviction and sentence passed by the learned Trial Court can be sustained in appeal. It is the prosecution case that on 04.09.2001 at the time of incident i.e., at midnight at about 12.30 a.m the convicts/appellants herein went to the concerned tank in order to steal fish therefrom; but two persons viz. Subodh Roy and Ratiswar Roy who were guarding the said tank resisted them from catching fish. For that reason the accused persons assaulted Subodh Roy with stick/lathi; as a result, Subodh Roy sustained rapture injuries on the leaver resulting in his death. Another guard namely Ratiswar Roy raised hue and cry and managed to flee away from the spot. Subodh Roy and Ratiswar Roy who were guarding the said tank resisted them from catching fish. For that reason the accused persons assaulted Subodh Roy with stick/lathi; as a result, Subodh Roy sustained rapture injuries on the leaver resulting in his death. Another guard namely Ratiswar Roy raised hue and cry and managed to flee away from the spot. On hearing the hue and cry of Ratiswar Roy villagers came at the spot and apprehended four miscreants therefrom. Learned Counsel for the appellant has assailed the judgment of conviction on the ground that the learned Trial Court has failed to make proper appreciation of the evidence resulting in miscarriage of justice. Attention of the Court has been drawn to the relevant observation made by the learned Trial Court at Page 11 and 12 of the impugned judgment. It is observed: “….. this is a case based on circumstantial evidence. Unfortunately, Ratiswar Roy who was the sole eye witness at the relevant point of time did not in specific term states about the act and conduct of the accused persons causing injury resulting in death of the victim. So, in the ultimate analysis that P.W-2, 3 10, 11 and 12 proved the fact that at the relevant point of time victim had gone for guarding the pukur when the accused persons came there, ‘maramari’ took place and during that victim fell down and succumb to the injuries (rupture of liver). So, in all probabilities the finding can be arrived that it was the act and conduct of accused persons which resulted into the rupture of liver of the victim.” By referring to the above quoted observation of the learned Trial Court in the judgment it is argued by the learned Counsel for the appellant that in arriving at the conclusion of guilt of the accused persons, Learned Trial Court applied the principle of preponderance of probabilities and based on his judgment on surmise and conjecture. It is also argued that the learned Trial Court could not and in fact did not rely on the oral testimony of P.W. 3 Ratiswar Roy who was projected by the prosecution as sole eye witness to the occurrence; and instead of that, the learned Trial Court relied upon the evidence of P.W. 2, 3, 10 11 and 13 to prove certain circumstances which, according to learned Trial Court, were sufficient to establish the guilt of the accused persons. I have read the impugned judgment and the evidence of the witnesses in between the lines in view of the scathing criticism of the Judgment by the learned counsel of the appellant. On scrutiny I find that the learned Trial Judge committed a basic error in applying the principle of “preponderance of probabilities” in criminal trial instead of insisting on the standard of proof beyond all reasonable doubt; and that the circumstances disclosed by P.W. 2, 3, 10, 11 and 12 in their respective evidence were not sufficient to establish the guilt of the accused persons beyond all reasonable doubt. P.W. 1 Dr. Ashish Sarkar held postmortem examination over the dead body of the victim Subodh Roy and found the following two injuries: i) Bruise mark over the right abdominal wall, size 6 inch X 3 inch with irregular margin; ii) Liver ruptured on anterior surface and the abdomen was full of clotted blood. Doctor was of the view that death was due to the shock and hemorrhage following rupture of liver which was ante-mortem in nature and might be caused by hard blunt substance. On the asking of the prosecutor, the Doctor opined that such types of injuries could also be caused by hit with lathi in the abdomen. Such opinion was solicited because the prosecution case was that the victim was assaulted with lathi. But P.W. 3 Ratiswar Roy who was cited by the prosecution as the sole eye witness to the occurrence stated specifically that he did not see any lathi in the hand of any of the accused. No other witness examined on behalf of the prosecution stated anything about the use of lathi in causing the injuries found on the person of the victim. The prosecution thus failed to prove as to how and under what circumstances the victim could suffer the bruise of 6 inch x 3 inch size and rupture of liver. No other witness examined on behalf of the prosecution stated anything about the use of lathi in causing the injuries found on the person of the victim. The prosecution thus failed to prove as to how and under what circumstances the victim could suffer the bruise of 6 inch x 3 inch size and rupture of liver. On scrutiny of the evidence of P.W. 2 Sorojen Roy, P.W. 3 Ratiswar Roy, P.W. 10 Sunil Roy, P.W. 11 Sujit Roy and P.W. 12 Insbul Haque I find that all the aforesaid witnesses barring P.W. 12 Isabul Haque were the close relation of the victim Subodh Roy and they were the post occurrence witnesses who, on arriving at the place of occurrence, found the victim lying on the ground in senseless condition and four persons of the same village had been kept in detention by the villagers on the allegation that those four persons came to the tank with net for stealing fishes. None of the villagers who allegedly detained four persons has not been examined by the prosecution. P.W. 3 Ratiswar Roy who was projected in the F.I.R. as the sole eye witness, did not also support the prosecution version. P.W. 3 Ratiswar Roy gave an altogether different version which can not stand the test of judicial scrutiny. In his evidence P.W. 3 Ratiswar Roy stated that at the relevant time of incident he was returning from the house of one Azahar Ali of Kohora Para and in the that dark night he saw an act of ‘dhastadhasti’ (Jostling) between the victim and the accused persons and in course of such jostling the victim Subodh Roy fell down on the ground and seeing that the accused persons started fleeing away; but the villagers managed to detain them along with fishing net, two cycles and one dagger. The First Information Report story is that P.W. 3 Ratiswar Roy and the victim Subodh Roy were guarding the tank and when they obstructed those four persons in their act of stealing fishes from that tank, there ensued a hot altercation during which one of the miscreants tried to give a blow of dagger but he somehow or other escaped from the spot. In evidence P.W. 3 Ratiswar Roy disowned the prosecution case of his guarding the tank along with the victim and of any attempt to his life with a dagger. In evidence P.W. 3 Ratiswar Roy disowned the prosecution case of his guarding the tank along with the victim and of any attempt to his life with a dagger. He introduced a third story of his subsequent arrival at the place of occurrence and witnessing an act of jostling and fall of the victim on the ground in senseless condition. Thus third story was not corroborated by any other witness examined on behalf of the prosecution. This third story, if at all believed to be true one, will also rule out the possibility of victim’s sustaining external injury like bruise of 6 inch x 3 inch in size and corresponding internal injury of rupture of liver. P.W. 12 Isabul Haque, a rickshaw van puller stated in his evidence that he came to the spot with his van rickshaw to take Subodh Roy who was lying on the ground in senseless condition, to sadar hospital. On the basis of a single circumstance that four persons were kept in detention by the villagers by the side of the village tank and the victim Subodh Roy were lying in senseless condition, the learned Trial Judge found no other alternative hypothesis than the only hypothesis consistent with the guilt of the accused. But in my considered view that this circumstance alone is not sufficient to establish the guilt of the accused because it is well established that in order to base any conviction on circumstantial evidence, the prosecution has to establish by cogent, convincing and legal evidence to complete chain of circumstances without any missing link which will lead to the only hypothesis consistent with guilt of the accused and none else. In view of the foregoing discussion I am constrained to hold that the prosecution miserably failed to bring home the charge to the accused persons and in such circumstances I cannot persuade myself by any other cogent reasons to agree with the findings of the learned Trial Court. The judgment of conviction and order of sentence cannot be sustained In the result both the criminal appeals are allowed. The Judgment and Order of conviction and sentence passed by the learned Court below are hereby set aside. The judgment of conviction and order of sentence cannot be sustained In the result both the criminal appeals are allowed. The Judgment and Order of conviction and sentence passed by the learned Court below are hereby set aside. Four convicts / appellants herein namely, Prabir Chandra Dey, Ramesh singh, Gurudas Roy and Nitya Roy are held not guilty for the offence punishable under Section 304 Part II of the Indian Penal Code and are acquitted to the said charge. They be set at liberty and be released from their respective bail bonds forthwith. Let a copy of this Judgment alongwith the LCR be sent to the learned court below at once. Upon appropriate Application(s) being made, urgent Photostat Certified copy of this Judgment, be given/issued expeditiously subject to usual terms and conditions.