JUDGMENT S.C. Das, J. Both the appeals were heard together on the prayer of learned counsel of the parties, since, directed against the same judgment and order dated 26.11.2013, passed by learned Addl. Sessions Judge, Court No.5 (Fast track Court) West Tripura, Agartala in Sessions Trial No. 183 of 2012. 2. By filing Criminal Appeal (J) No.45 of 2013, under Section 374 of Cr.P.C. the convict-appellant Shyamal Malakar challenged the judgment and order of conviction and sentence dated 26.11.2013 where under he has been found guilty of the charge framed against him under Section 302 read with Section 34 of IPC and sentenced him to suffer R.I. for life and to pay fine of Rs.5000/-, in default, to suffer R.I. for three months. 3. By filing Criminal appeal No.4 of 2014, under Section 378(1)(b) of Cr.P.C., the State of Tripura, appellant, challenged the same judgment and order dated 26.11.2013 where under the accused-respondent Suman Malakar has been acquitted from the charge framed against him under Section 302 read with Section 34 of IPC. 4. Heard learned counsel, Mr. Somik Deb for the appellant in Criminal Appeal (J) No.45 of 2013 and for the respondent in Criminal Appeal No.4 of 2014. 5. Simultaneously, heard learned P.P., Mr. A. Ghosh for the respondent in Criminal Appeal (J) No.45 of 2013 and learned counsel, Ms. S. Deb (Gupta) for the appellant of Criminal Appeal No.4 of 2014. 6. Shyamal Malakar, the appellant of Criminal Appeal (J) No.45 of 2013 and Suman Malakar, the respondent of Criminal Appeal No.4 of 2014 were full blood brothers. They along with another Indrajit Das were charge-sheeted by the police in West Agartala P.S. Case No.212 of 2011 under Section 302/34 of IPC and in course of trial learned Addl. Sessions Judge by order dated 17.12.2013, framed a common charge against them for commission of offence punishable under Section 302 read with Section 34 of IPC to which they pleaded not guilty and claimed to be tried. 7. Prosecution case was that accused Shyamal Malakar had a dispute with Surjya Chakraborty at the time of previous Durga Puja festival and thereafter Shyamal Malakar conspired to kill Surjya chakraborty. On 19.06.2011, a Sunday, at about 10/10:30 p.m. Surjya Chakraborty, aged about 22 years, was in his house and was enjoying a TV programme. 7. Prosecution case was that accused Shyamal Malakar had a dispute with Surjya Chakraborty at the time of previous Durga Puja festival and thereafter Shyamal Malakar conspired to kill Surjya chakraborty. On 19.06.2011, a Sunday, at about 10/10:30 p.m. Surjya Chakraborty, aged about 22 years, was in his house and was enjoying a TV programme. At that time, the accused Shyamal Malakar and Suman Malakar called Surjya Chakraborty from outside and accordingly Surjya Chakraborty went out of his hut to the road in front of his house and when he reached there, the accused persons Shyamal Malakar and Suman Malakar along with another attacked Surjya Chakraborty and Shyamal Malakar struck repeated 'Dao' blows on the head of Surjya Chakraborty and Suman Malakar also gave 'Shabal"(crow bar) blow on the face of Surjya and as a result, Surya received severe bleeding injuries, raised alarm and hearing his alarm when the inmates of the house of Surjya Chakraborty rushed to the spot, the miscreants fled away. The injured Surjya Chakraborty was immediately shifted to G.B. Hospital by his full blood brother Sujit Chakraborty (P.W.1) and accompanied with cousin brother Swapan Chakraborty (P.W.8) and at G.B.Hospital doctor declared him dead. 8. Some one reported about the incident to West Agartala P.S. without giving details and accordingly S.I. Ranjit Debnath of West Agartala P.S. (P.W.14) along with S.I. Milan Dutta (P.W.12), O.C. of Ramnagar T.O.P. and O.C. of West Agartala P.S. rushed to the village Lankamura after making a G.D. Entry No.1287 dated 19.06.2011 at West Agartala P.S. and thereafter on reaching the spot, the police party found that the injured was already shifted to the hospital and S.I. Ranjit Debnath (P.W.14) started investigation on the spot and the other police officers i.e. P.W.12 and O.C. of the P.S. went to G.B.Hospital where P.W.1 Sujit Chakraborty submitted a written FIR to P.W.12 which was forwarded to the O.C., West Agartala P.S. and on the basis of that FIR, West Agartala P.S. Case No.212 of 2011 was registered under Section 302/34 of IPC and S.I. Ranjit Debnath was entrusted investigation who conducted the major part of investigation and subsequently on his transfer investigation was entrusted to S.I. Manik Debnath (P.W.15) of West Agartala P.S. who submitted charge-sheet against accused Shyamal Malakar and Suman Malakar as well as another accused Indrajit Das. 9. Prosecution examined 15 witnesses and also proved several documents and materials. 9. Prosecution examined 15 witnesses and also proved several documents and materials. The list of witnesses and the list of exhibited documents and materials have been arrayed in Para 4 and 5 of the trial Court judgment. 10. After the prosecution evidence was closed, the accused Indrajit Das was acquitted under Section 232 of Cr.P.C. The accused Shyamal Malakar and Suman Malakar were examined under Section 313, Cr.P.C. and in their turn they declined to adduce any defence evidence. 11. At the time of cross examination of prosecution witnesses, the accused persons proved some portion of the previous statement of the prosecution witnesses which were marked as Exbt.A to Exbt.D, detailed in Para 6 of the trial Court's judgment. 12. Defence case is that of false implication of the accused persons out of previous enmity and quarrel. 13. Surjya Chakraborty died a homicidal death, is not in dispute. The accused appellant and the accused respondent of the present appeals denied their involvement in the incident. Burden lies on the prosecution to prove the charge beyond reasonable doubt. 14. It is argued by learned counsel, Mr. Deb that the finding of the trial Court in respect of the accused-appellant Shyamal Malakar is based on no legal evidence. According to Mr. Deb, the entire prosecution case in respect of involvement of the present accused persons were seriously doubtful since the FIR was lodged by none but a full blood brother, an inmate of the house of the deceased and in the FIR nothing was stated that the accused persons committed the murder of Surjya Chakraborty. Had any inmates of the house identified the accused at the time of commission of the crime it was natural for them to reflect it in the FIR which was lodged immediately after the occurrence and there was no scope of any development or embellishment. It was simply stated that there was a dispute on an issue occurred at the time of Durga Puja. Nothing was stated in the FIR that Surjya Chakraborty went out of the house on call of the accused persons at the time of occurrence or that any of the inmates of the house found the accused persons inflicting blows on the deceased at the time of occurrence. All the statements of the witnesses were subsequent development and were first time statement before the Court. All the statements of the witnesses were subsequent development and were first time statement before the Court. So, none of the witnesses can be believed to record a conviction. He has also submitted that the trial Court observed that the incriminating part of the evidence of witnesses were improved version but still the trial Court recorded conviction of accused Shyamal Malakar whereas on the same set of evidence, the accused Suman Malakar has been acquitted and the acquittal has been rightly recorded. It was also argued by learned counsel, Mr. Deb that according to the statement of the witnesses, Shyamal Malakar inflicted 'Dao' (sharp cutting weapon) blows on the head of Surjya but the Autopsy Surgeon found no sharp cut injury and the cause of death was not for any sharp cut injury. The trial Court ignored that part of evidence making some unusual observation based on no evidence at all. The improved version of the prosecution witnesses, according to Mr. Deb, the Trial Court would ignore and would appreciate in the same manner in respect of both the accused Shyamal and Suman and would record an order of acquittal. No basic reason has been assigned by the trial Court in distinguishing the incriminating part of evidence in respect of accused Shyamal and Suman. There is no cogent evidence at all to record an order of conviction and so Suman has been rightly acquitted and the judgment and order of conviction and sentence of accused Shyamal should be interfered and set aside. 15. On the contrary, learned P.P., Mr. Ghosh has submitted that the trial Court assigned reason while distinguishing the case of Shyamal Malakar from the case of Suman Malakar and recorded conviction in respect of accused Shyamal. The trial Court sifted the evidence on record and assigned reason while coming to the conclusion of guilt of the accused Shyamal. Since it is an admitted position that the deceased Surjya Chakraborty died a homicidal death and there was no other circumstances brought on record to show that anybody else might be involved behind the murder of Surjya Chakraborty, there was nothing wrong in coming to the conclusion that the accused persons were involved in the alleged offence and none else. 16. Ms. Deb (Gupta), learned counsel for the State-appellant of Criminal Appeal No.4 of 2014 also made the similar submission. According to Mr. 16. Ms. Deb (Gupta), learned counsel for the State-appellant of Criminal Appeal No.4 of 2014 also made the similar submission. According to Mr. Deb (Gupta) the trial Court was bound to record conviction of accused Suman also since the witnesses made categorical statement that both Shyamal and Suman inflicted blows on the deceased Surjya Chakraborty. The witnesses made categorical statement that Shyamal was armed with a 'dao' and Suman was armed with a 'shabal' (crow bar) and both of them inflicted blows with those weapons causing injury to the person of Surjya. While the trial Court put reliance on the evidence on record in respect of assault by Shyamal, there was no reason to disbelieve in respect of involvement of accused Suman. There was no scope at all to distinguish the evidence and to appreciate it in a different way and hence, the acquittal of accused Suman as recorded by the trial Court cannot sustain and is liable to be interfered. The accused Suman also should be convicted and sentenced for the murder of Surjya Chakraborty. 17. According to the prosecution, the incident occurred on 19.06.2011 at about 10/10:30 p.m. at village Lankamura (Malakar para). It is an admitted position that the deceased Surjya and other inmates of the house who were the material witnesses of the prosecution as well as the accused Shyamal and Suman were the residents of the same village i.e. village Lankamura (Malakar para). The incident occurred in front of the house of deceased Surjya Chakraborty on the road where he was attacked by the miscreants by inflicting fatal blows. FIR was lodged by P.W.1, Sujit Chakraborty at G.B.Hospital on 19.06.2011 at 23-30 hours which was received by P.W.12, S.I. Milan Dutta of Ramnagar T.O.P. under West Agartala P.S. 18. It is an admitted position that immediately after the occurrence P.W.1 called P.W.3, the owner/driver of an auto rickshaw and shifted injured Surjya Chakraborty to G.B. Hospital where Surjya was declared dead by the attending physician and at G.B. Hospital itself P.W.1 requested P.W.11 Goutam Bhowmik to write the FIR and according to the statement of P.W.1, P.W.11 wrote the FIR and that was handed over to P.W.12, the S.I. of Police of Ramnagar T.O.P. It appears, within about an hour the FIR was lodged. There was little scope of embellishment or afterthought. There was little scope of embellishment or afterthought. The FIR was lodged by none but full blood brother of the deceased who rushed to the spot hearing the alarm raised by the deceased. So in the particular facts and circumstances of the case, the fact disclosed in the FIR has a lot of significance since it was the information first in point of time about the offence. 19. P.W.1 in his deposition stated that the FIR was written at G.B.Hospital by P.W.11 Goutam Bhowmik as per his statement and thereafter he put his signature and it was handed over to the police officer. He proved his signature which was marked as Exbt.1. 20. P.W.11 stated that on 19.06.2011 at about 11 p.m. he reduced into writing a complaint at G.B.Hospital as narrated by Sujit Chakraborty (P.W.1) and he also put his signature at the bottom of the complaint and he proved the contents of the FIR marked Exbt.1/1 and his signature marked Exbt.1/2. 21. P.W.12 stated that at about 22:55 hours on receipt of a telephonic information he rushed to G.B.Hospital and in the hospital Sujit Chakraborty handed over him an FIR and he made endorsement in the FIR and forwarded it to the O.C., West Agartala P.S. for registration of the case and he proved his endorsement as Exbt.1/3. There is no confusion about the lodging of the FIR and the statements made in the FIR. 22. Let us now reproduce here the contents of the FIR which has been proved as Exbt.1/1--- "To The Officer-in-charge West Agartala P.S. Agartala. Sub: Prayer for proper investigation into the killing of my younger brother. Sir, My humble submission is that today dated 19-06-2011 A.D., Sunday at about 10.30 P.M. my younger brother Surya Chakraborty (22) was watching T.V. in his room. Suddenly a man called him and took (him) on the road in front of our house. Within a short time we all heard the scream of my younger brother and went (there) running. Then we saw that some people were running away towards the south. My brother was groaning on the ground with bleeding injuries. There were hacking (blows) of sharp edged weapons on his body. Instantly we brought (my) brother to G.B. Hospital but the doctor declared him dead. Those persons whom we saw running away killed my brother with sharp edged weapons. My brother was groaning on the ground with bleeding injuries. There were hacking (blows) of sharp edged weapons on his body. Instantly we brought (my) brother to G.B. Hospital but the doctor declared him dead. Those persons whom we saw running away killed my brother with sharp edged weapons. Be it mentioned here that during last Durgapuja, Shyamal Malakar of our area had a dispute with my brother. Since after that Shyamal Malakar went on hatching conspiracies to kill my younger brother. So I think that the said Shyamal Malakar and his accomplices were involved in the killing of my brother. Hence, orders may kindly be passed by your good self to apprehend the murderers and punish them after proper investigation. Scribed and read by Sd/- Goutam Bhowmik S/O Shri Mihir Bhowmik Vill-South Narayanpur, P.S. Airport, Professional-Business The end Submitted by Sd/ Sujit Chakraborty S/O-Lt Rabindra Chakraborty Vill-Lankamura Malakar Para, P.S. West Agartala, Profession-Business, Indian citizen Dated 19-06-2011." 23. It is quite evident from the above that P.W.1 Sujit Chakraborty, the informant could not identify as to who were the assailants of deceased Surjya Chakraborty. Had he identified the miscreants it was natural for him to mention the Scribed and read by Sd/- Gautam Bhowmik S/O-Shri Mihir Bhowmik Vill-South Narayanpur, P.S. Airport, Profession-Business. name of the assailants/miscreants in the FIR. No statement was made by P.W.1 in his deposition that the FIR was not written by P.W.11 as per his statement or that he stated something else and/or something more which was not written by P.W.11 or that the FIR was lodged in a hurry and, therefore, everything in details could not be stated in the FIR. It is clear from the statement made in the FIR that P.W.1 mentioned about some disputes between his brother deceased Surjya and the accused Shyamal occurred at the time of Durga Puja. If he could identify the accused persons at the time of occurrence he would definitely name the actual assailants of his brother in the FIR. In the given facts and circumstances of the case such absence of the name of accused in the FIR no doubt raises a serious suspicion. 24. The FIR itself is not a substantive piece of evidence. It can be used for corroborating or contradicting its maker when he/she appears in Court as a witness. In the given facts and circumstances of the case such absence of the name of accused in the FIR no doubt raises a serious suspicion. 24. The FIR itself is not a substantive piece of evidence. It can be used for corroborating or contradicting its maker when he/she appears in Court as a witness. The value of an FIR always depends on the facts and circumstances of a given case. It can only discredit the testimony of its maker. The total prosecution case cannot be thrown away on the ground of a faulty FIR if there is other cogent evidence on record. An FIR no doubt carries very important significance when it is lodged by a material witness of the occurrence. In the case at hand P.W.1 Sujit Chakraborty is the full blood brother of the deceased Surjya Chakraborty and according to the prosecution hearing the alarm raised by Surjya Chakraborty, the informant Sujit Chakraborty, his brother Biswajit Chakraborty (P.W.4), their sister Smt. Ranjana Chakraborty (P.W.2), brother-in-law Mihir Chakraborty (P.W.5) all rushed to the spot and that is the crux of the prosecution case. Sujit called P.W.3 to come to the spot with auto rickshaw and when P.W.3 came with his auto rickshaw then Sujit Chakraborty (P.W.1) along with Swapan Chakraborty (P.W.8) shifted injured Surjya Chakraborty to the hospital. At the time when Surjya was shifted to hospital all the inmates of the house i.e. P.Ws 2, 4, 5 and other material witnesses were on the spot. Had at that time any one of those witnesses could identify the miscreants, definitely at the time of lodging the FIR, P.W.1 would mention the name of the miscreants. This is a very vital part of the prosecution case which has been ignored by the trial court while appreciating the evidence and recording conviction of the accused Shyamal Malakar. 25. It is a settled position of law that entire prosecution case should not be a suspect simply because there was some infirmity in the FIR. If there is other cogent evidence on record, a conviction may sustain even ignoring the FIR. A court of fact has to consider in the light of the totality of the evidence of a particular case and should not take an easy course of discarding the entire evidence only on the ground of not mentioning the name of accused persons in the FIR. 26. A court of fact has to consider in the light of the totality of the evidence of a particular case and should not take an easy course of discarding the entire evidence only on the ground of not mentioning the name of accused persons in the FIR. 26. Let us now travel through the evidence on record. According to the prosecution Surjya and his brothers and sisters were in the house, in their respective hut. Someone called Surjya from outside and Surjya went out of his room and went to the road. The inmates of the house heard his alarm and rushed to the road in front of the house and found Surjya was lying with severe bleeding injury. Admittedly, Surjya could not make any statement about his assailants. 27. Now, let us see what those witnesses stated in their deposition. P.W.1 stated- "On 19.06.2011 just after 10 pm Shyamal Malakar and Suman Malakar called by brother Surjya Chakraborty to the main road. Immediately thereafter I head hue and cries of Surjya. I came out of the hut and reaching the road found him lying with bleeding injuries. I also found Shyamal Malakar, Suman Malakar and some other persons running away towards southern direction. I saw dao in the hands of Shyamal and Sabal with Suman." In his cross examination he admittedly stated- "I did not mention in my complaint that I saw Shyamal Malakar and Suman Malakar running away with dao and shabal in their respective hands. I did not mention in my complaint that on that night Shyamal Malakar called Surjya up to the road." It is, therefore, admitted by P.W.1 that the material incriminating part of his deposition before the Court was the first time statement and it was not made in the FIR. The prosecution case, therefore, cannot stand on the version of P.W.1. 28. P.W.2 in her deposition stated- "At that time I saw Shyamal Malakar giving 3 dao blows on the head of Surjya. I also saw Suman giving shabal blow on the face of Surjya." In her cross examination she stated- "I stated to the police that Surjya had my daughter in his lap and he went out with her, immediately thereafter, he handed her over to me and I saw Shyamal Malakar giving 3 dao blow to Surjya and Suman giving shabal blow to Surjya and that I raised cries. Attention of the witness being drawn to the recorded statement witness admits this, is not there." From the above, it is clear that this witness also made the incriminating part of the statement for the first time before the Court and that was not made by her before I.O. at the time when she was examined. 29. P.W.4 in his deposition stated- "At that point of time, hearing cries, I went to the road side and found Shyamal Malakar giving dao blows to Surjya and Suman sabal blow to Surjya. As I proceeded further they fled away." This part of the statement of P.W.4 has not been contradicted with his earlier statement but the other part of the statement has been contradicted. This witness was examined by I.O. on 25.06.2011 and there was no explanation as to why he was not examined on the night of occurrence itself or on the following day of the night of occurrence. The delayed examination of the witnesses by the I.O. has not been explained at all. 30. P.W.5 is the husband of P.W.2. He also rushed to the spot hearing the cries and found Surjya was lying with bleeding injuries and some persons fleeing away to the southern side. He did not name the accused persons. 31. It is quite evident from the evidence of P.Ws 2 and 5 that P.W.2 is the married sister of deceased. She was a resident of Malaynagar under Srinagar Police Station, far away from the place of occurrence i.e. Lankamura. She and her husband P.W.5, according to the prosecution were in the house of her parents i.e. P.Ws 1 and 4 on that night. According to the I.O., P.W.2 was examined by him on the night of occurrence itself. The other witnesses also stated that P.W.2 was found there in the house. P.Ws 2 and 5 being residents of Malaynagar, were simply chance witnesses of the occurrence. They were not supposed to be there in the house of the deceased in ordinary course. The evidence of a chance witness is not readily to be discarded but has to be corroborated by some other evidence. P.Ws 2 and 5 being residents of Malaynagar, were simply chance witnesses of the occurrence. They were not supposed to be there in the house of the deceased in ordinary course. The evidence of a chance witness is not readily to be discarded but has to be corroborated by some other evidence. So far incriminating part of the evidence of P.W.2, it is the first time statement before the Court and in her previous statement recorded by I.O., allegedly on the night of occurrence itself, nothing was stated that she found the accused persons inflicting 'Dao' and 'shabal' blows on the person of the deceased. P.W.1 though in his deposition stated that he found the accused persons inflicting 'dao' and 'shabal' blows on Surjya but in the FIR he did not make any such statement and therefore, his statement is also a suspect and cannot be readily relied by the Court unless some other cogent corroborating evidence on record. 32. From the statements of P.Ws 1, 4, 2 and 5 it is quite evident that they were together by the side of the injured Surjya when he was shifted to hospital. Had any one of them could identify the miscreants who assaulted Surya, definitely they would disclose the name of the assailants on the spot and it is the normal human behaviour. 33. P.W.4 Biswajit Chakraborty in his statement recorded by I.O. mentioned the name of the accused persons but he was examined by the I.O. only on 25.06.2011 i.e. after six days of the occurrence and I.O. in his deposition stated nothing as to why there was delay in examining that witness. The evidence of P.W.4 also, therefore, required to be scrutinized in the given facts and circumstances of the case, since it was natural for him to disclose the name of the assailants on the spot if he could identify the miscreants. 34. Let us now come to the evidence of the other set of witnesses who allegedly found the accused Shyamal Malakar and Suman Malakar fleeing away with 'dao' and 'shabal' in hand respectively. They were P.Ws 6,7,8,9 and 10. Out of them P.W.6 was examined by the I.O. on 25.06.2011, P.W.7 was examined by the I.O. on 07.07.2011; P.W.8 was examined by the I.O. on 15.11.2011; P.W.9 and 10 were examined by the I.O. on 24.01.2012. They were P.Ws 6,7,8,9 and 10. Out of them P.W.6 was examined by the I.O. on 25.06.2011, P.W.7 was examined by the I.O. on 07.07.2011; P.W.8 was examined by the I.O. on 15.11.2011; P.W.9 and 10 were examined by the I.O. on 24.01.2012. Such delayed examination of the witnesses by the I.O. has not been explained. Anyway, let us go through the incriminating part of the statement of those witnesses. 35. Learned counsel, Mr. Deb seriously questioned the credibility of those witnesses since the incriminating part of the statement of those witnesses were the first time statement before the Court. 36. P.W.6 in his examination-in-chief stated that on the following morning of the night of the occurrence, he went to the house of Surjya Chakraborty and came to learn from Biswajit Chakraborty that Surjya was assaulted by 'dao' and 'shabal' by Suman Malakar and Shyamal Malakar on the previous night at about 9-30 pm which led to the death of Surjya Chakraborty. In cross examination, his attention was drawn to his previous statement recorded by I.O. to which he admitted that there was no mention that he went to the house of Biswajit Chakraborty on the following morning. He, however, denied the suggestion that Biswajit did not inform him about the accused Suman and Shyamal who assaulted Surjya by 'shabal' and 'dao' etc. 37. P.W.7 stated that at about 10 p.m. hearing the alarm he went to the road near the house of Sujit Chakraborty and at that time he found Suman and Shyamal running away. Suman had a 'shabal' in hand and Shyamal had a 'dao' in hand. Sujit, Swapan and Biswajit informed him that Suman and Shyamal assaulted Surjya. In cross examination his attention was drawn to his previous statement to which he admitted that the statement that he found Suman and Shyamal running away with 'dao' and 'shabal' in hand was not there and that statement was the first time statement before the Court. He also admitted that the statement that Sujit, Swapan and Biswajit informed him that Surjya was assaulted by Suman and Shyamal was not there in his previous statement. 38. He also admitted that the statement that Sujit, Swapan and Biswajit informed him that Surjya was assaulted by Suman and Shyamal was not there in his previous statement. 38. P.Ws 8 and 9 also made similar statements as that of P.W.7 and the incriminating part of the statement that they found accused persons fleeing away with 'dao' and 'shabal' in hand and that they were informed by the inmates of the house that accused Suman and Shyamal assaulted Surjya causing injury were not there. Absolutely that part of the statements was the first time statements before the Court and were not there in the previous statements of those witnesses. 39. P.W.10 stated that when he went to the house of Surjya Chakraborty he was informed by Ranjana and Biswajit that Surjya was assaulted by Shyamal and Suman but that part of the statement was not made before I.O. which he admitted in his cross examination. 40. The crux of the prosecution case was that P.Ws 1, 2 & 4 had seen the accused persons assaulting Surjya but that particular material statement was not made in the FIR which was lodged immediately after the occurrence. The evidence of P.Ws 1, 2 and 4 cannot be isolatedly read and appreciated since before the lodging of the FIR by P.W.1 they all were together till the deceased Surjya was shifted to hospital and in the hospital itself P.W.1 lodged the FIR and there was no scope of any concoction or development in the actual story. As it appears P.W.2 also did not make any incriminating statement to the I.O. though she was examined on that night itself. P.W.4 made the incriminating statement but he was examined only on 25.06.2011 i.e. after six days of the occurrence and there was no explanation for his delayed examination by the I.O. In such given circumstances of the case the version of the alleged eye witnesses of the prosecution cannot be believed. 41. The further case of the prosecution was that the accused persons were found fleeing away with 'dao' and 'shabal' in hand were all first time statement before the Court and were not made before the I.O. at the time when those witnesses were examined though long after the date of occurrence having no explanation for such delayed examination. 42. The next point which was raised by the defence was the manner of identification. 42. The next point which was raised by the defence was the manner of identification. There is no evidence that it was a moonlit night or that there was any streetlight in front of the house of the deceased at the time of occurrence. Rather, P.W.15 in his cross examination made a clear statement that it was revealed during investigation that at the time of incident there was load shading at the place of occurrence. The witnesses stated that in the light of airport authority they identified the accused persons. The hand sketch map prepared by the I.O. has been proved as Exbt.6 and the index as Exbt.6/1. There is no mention of any electric light post either in front of the house of the deceased or in the premises of the Airport. It was the duty of the prosecution to clearly indicate that there was an electric post in the premises of the airport authority wherefrom the place of occurrence was illuminated. P.W.14 rather made confusing statement. In cross examination he stated that in the entire map no street light indicated as there was no street light in the portion indicated. He voluntarily stated that it is mentioned in the C.D. that the place of occurrence was visited with the dragon light, torch light and light of the airport authority. The dragon light and torch light are used when the light is not sufficient in the particular area. The witnesses stated that they identified the accused persons with the light of the airport. The hopeless investigation does not reflect as to where the light of the airport was located by which the area was illuminated. Rather, in the cross examination of P.W.15 it was stated that the area was under load shading at that point of time. It is, therefore, absolutely in doubt as to whether there was any light at all in the area at the time of occurrence. The alleged identification of the accused persons in the given facts and circumstances of the case is, therefore, absolutely doubtful. 43. Surjya Chakraborty died a homicidal death. P.W.13 along with another Autopsy Surgeon conducted postmortem examination over the dead body of Surjya Chakraborty. In his deposition P.W.13 stated --- "On examination of the dead body following external and internal injuries were noticed: 1. 43. Surjya Chakraborty died a homicidal death. P.W.13 along with another Autopsy Surgeon conducted postmortem examination over the dead body of Surjya Chakraborty. In his deposition P.W.13 stated --- "On examination of the dead body following external and internal injuries were noticed: 1. Lacerated wound 8.5 cm x 3 cm x bond deep present on the right side of forehead placed obliquely from outer to inner side associated with underlying depressed comminuted fracture of right side of frontal bone which was 0.5 cm right of mid line. 2. Abrasion 5 cm x 2.5 cm on the right side of cheek 2 cm below the lower eye lid. 3. Abrasion 2 cm x 1 cm over central portion of the bridge of nose. 4. Abrasion 6 cm x 2.5 cm over the chin. 5. Abrasion 2.5 cm x 1.5 cm over outer aspect of right upper eye lid. 6. Contusion over both eye lids of both the eyes. 7. Multiple fracture over nasal bone, both maxilla and central part of mandible with fall of all the upper and lower incisors. 8. Scalp- defused haematoma found into the deeper layers of scalp over right frontal and right temparo occipital region. 9. Brain-diffused subdural and subarachnoid, haemorrhage around all the surfaces of both cerebral hemispheres. The cause of death in our opinion was trauma as a result of head injury caused by impact of blunt force. All the injuries were anti mortem in nature, fresh in duration and were sufficient to cause death in ordinary course of nature. We gave a report in this regard which was written by Dr. Subrata Biswas. I know his hand writing and signature. This is the report under his hand bearing his signature as well as my signature marked exhibits-5, 5/1 and 5/2 respectively. The injuries aforesaid may be sustained if one is struck by iron rod (shabal). In cross examination he stated- "No sharp cutting injury was found. At Sl. No.9 of the injury aforesaid the quantity of blood is not mentioned. Witness volunteers: the amount of blood will be huge but it is not mentioned. It is not a fact that huge blood was not there for which it is not mentioned. It is not a fact that injuries aforesaid shall not be sustained if one is truck by iron rod (shabal). Witness volunteers: the amount of blood will be huge but it is not mentioned. It is not a fact that huge blood was not there for which it is not mentioned. It is not a fact that injuries aforesaid shall not be sustained if one is truck by iron rod (shabal). Normally it would take at least 30 minute after taking meal to get the food semi digested in the stomach. Becoming senseless and going to coma are different. Injuries at Sl. Nos.2, 3, 4 & 5 singly could not have caused death. Injuries at Sl. Nos. 8 & 9 were related and caused by injury at Sl. No.1. It is not a fact that all the injuries were not sufficient to cause death in ordinary course of nature." 44. It is quite evident from the above statement of the witness that no sharp cut injury was found on the person of the deceased. All the alleged eye witnesses of the prosecution stated that the accused Shyamal inflicted 'dao' blows on the head of the deceased. Admittedly, a 'dao' is a sharp cutting weapon whereas the doctor found no sharp cut injury. The witnesses stated that Suman inflicted blow by 'shabal' (crow bar) on the face of the deceased. There was no statement that Suman inflicted blow with 'shabal' on the head. The trial Court acquitted Suman from the charge whereas convicted Shyamal on the same set of evidence. There is no finding on the charge of common intention. Common intention has to be inferred from the facts and circumstances of a particular case. A presumption may be drawn that the assailants assaulted Surjya with intention to kill him. In a case based on circumstantial evidence, prosecution has to prove the motive behind. No evidence adduced as to what was the dispute which cropped up between Shyamal and Surjya at the time of Durgapuja as alleged by prosecution. Since there was no sharp cut injury found over the dead body of the deceased, it is difficult to record conviction of one of the accused referring to common intention while the other accused has been acquitted by the trial Court. The presumption of innocence multiplies when an order of acquittal is recorded. Since there was no sharp cut injury found over the dead body of the deceased, it is difficult to record conviction of one of the accused referring to common intention while the other accused has been acquitted by the trial Court. The presumption of innocence multiplies when an order of acquittal is recorded. The Court will convert an order of acquittal to an order of conviction only in exceptional cases where the vital evidence has not at all been considered and the case has been proved with overwhelming evidence. 45. In the given facts and circumstances of the case, acquittal of accused Suman Malakar by the trial court cannot be termed as illegal. The conviction of Shyamal Malakar simultaneously was not based on any legal evidence. If according to the prosecution Shyamal was armed with 'dao' and he inflicted repeated 'dao' blows on the head of the deceased, whereas no sharp cut injury was found on the head, it is quite doubtful whether Shyamal had inflicted 'dao' blows or not. 46. The Supreme Court in the case of Kaliram v. State of Himachal Pradesh, reported in AIR 1973 SC 2773 : (1973) 2 SCC 808 : observed that - The golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. It is also an accepted rule that in case the Court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable; it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that it is hesitant and afraid to take things to their natural consequences. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations. 47. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations. 47. Lord Denning in Bater v. Bater (1950) 2 All ER 458 at page 459 has observed that doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject matter. 48. In the case at hand, if we consider the evidence in its entirety some sorts of suspicion raises in the mind that the accused persons might have committed the offence but suspicion whatever strong cannot take the place of proof. There must be clear and cogent evidence to record conviction. No doubt a life has been taken away by the brutal act of the miscreants but the involvement of the particular miscreant must be proved by legal evidence and if there is any doubt, the benefit is to go to the accused. The trial Court considered all the aspects but in spite of that recorded conviction in respect of the accused Shyamal Malakar but on the same set of evidence acquitted the other accused. The acquittal since was reasonable being a case of reasonable doubt we do not like to interfere. Since the finding of conviction and sentence of accused Shyamal Malakar, in our considered opinion, was not based on legal evidence and since there are room of suspicion in respect of all items of evidence, we are inclined to give benefit of doubt to accused Shyamal Malakar. 49. Accordingly, the judgment and order of conviction and sentence of accused Shyamal Malakar is set aside. 50. The Criminal Appeal (J) No. 45 of 2013, preferred by convict Shyamal Malakar is allowed. 51. The convict-appellant Shyamal Malakar be set at liberty at once. 52. The appeal against acquittal of accused Suman Malakar stands dismissed. 53. Both the appeals accordingly stand disposed of. 54. Send back the L.C. records along with a copy of this judgment.