JUDGMENT 1. This appeal from jail has been filed by the appellants, namely, Kamil Kandulona and Khristofar Tappo @ Khiris Tappo being aggrieved with the judgment dated 09.04.2015 passed by learned Additional Sessions Judge, Sonitpur, Tezpur in Sessions Case No. 110/2005, arising out of G.R. Case No. 06/2002 corresponding to Tezpur Police Station (District-Sonitpur) Case No. 05/2002 whereby they have been convicted under Section 302 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for Life with fine of Rs. 2,000/- each, in default to undergo Rigorous Imprisonment for another one month, for committing murder of Prithwiraj Ghosh, an Air Force personnel at Tezpur. 2. Prosecution''s case is that one Ms. Rekha Sharma (PW.5), a social worker of Sitabasti on 01.01.2002 around 09:45 am over phone informed Salonibari Out Post that an unidentified dead body was found floating in a pond in a field at Sitabasti. Said information was registered as Salonibari Out Post G.D. Entry No. 2 dated 01.01.2002. The In-charge of Salonibari Out Post along with its other police personnel on 01.01.2002 itself visited the place of incident, a small pond, located amidst a paddy field at Salonagaon, drawn its sketch map (Exhibit-8) and recovered the dead body from the said pond. In presence of the Officer-in-Charge of Tezpur Police Station, people of the locality and personnel of Air Force, Salonibari, said dead body was identified to be of Corporal Prithwiraj Ghosh. The In-charge of Salonibari Out Post made inquest on the said dead body of Prithwiraj Ghosh in presence of witnesses and prepared the Inquest Report (Exhibit-3) and forwarded the body of said deceased to the Kanaklata Civil Hospital, Tezpur for its Post Mortem Examination by preparing necessary Challan (Exhibit-7). The said In-charge recorded the statements of the witnesses, the residents of the concerned locality, acquainted with the incident and on receipt of a written ejahar (Exhibit-6) from one Kanhaya Rai (PW.12), Junior Warrant Officer of 11, Air Wing, Salonibari, Tezpur on 01.01.2002 itself, registered it as Salonibari Out Post G.D. Entry No. 9 of 01.01.2002 and forwarded it to the Officer-in-Charge of Tezpur Police Station, which was received as Tezpur Police Station G.D. Entry No. 30 dated 01.01.2002 and the said ejahar (Exhibit-6) was registered as Tezpur Police Station Case No. 05/2002 under Section 302 IPC, corresponding to G.R. Case No. 06/2002 . 3. 3. By the said ejahar dated 01.01.2002 (Exhibit-6) the informant (PW.12) reported before the Officer-in-Charge of Salonibari Out Post that the dead body of 729044-K Corporal Prithwiraj Ghosh, Clerk, General Duty of 11 Wing, Air Force was found floating in a pond adjacent to the Air Force boundary wall near Sonabheel Gate in Village-Salonagaon, Post Office-Haleswar around 01:00 pm on 01.01.2002 having cut marks over it, suspected of being murdered and therefore, the Commanding authority of the Air Force requested the authority concerned to investigate the matter and to take necessary action in that regard. 4. To record their statements by the Magistrate under Section 164 CrPC, the Investigating Officer of the case on 07.01.2002 forwarded four witnesses, to the Chief Judicial Magistrate, Sonitpur, Tezpur. The CJM, Sonitpur, Tezpur on 07.01.2002 in G.R. Case No. 6/2002 recorded the presence of those four witnesses (Exhibit-9) and on 07.01.2002 itself, through the Judicial Magistrate First Class, Sonitpur, Tezpur recorded the statements of those witnesses, namely, Rajesh Thakury (PW.1) (Exhibit-1), Joy Nath Singh (PW.2) (Exhibit-2), Chatra Bahadur Chetry (PW.4) (Exhibit-4) and Smti. Santoshi Chetri (Exhibit-11). 5. The accused appellants were traced by police at Tamuli Tea Estate under Ghoramora Out Post of Lahowal Police Station of Dibrugarh District and they were arrested on 21.01.2002 in said Tezpur P.S. Case No. 5/2002. The Investigating Officer prayed for Test Identification Parade of the arrested accused persons and on 30.01.2002 in GR Case No. 6/2002 the CJM, Sonitpur, Tezpur passed the necessary order in that regard (Exhibit-13). On 02.02.2002 TIP of the two arrested accused, i.e., the appellants herein, were conducted at Tezpur Jail (Exhibit-14) in presence of the Sub-Divisional Judicial Magistrate (Sadar), Tezpur (PW.17). One of the accused Sanu Ali evaded arrest during investigation of the case. On completion of the investigation of the case and on collecting the Post Mortem Examination Report of the Deceased (Exhibit-5) and finding prima facie materials against the appellants herein and another, namely Sanu Ali; the Investigating Officer of Tezpur P.S. Case No. 5/2002 submitted the Charge Sheet in the said case vide No. 457 dated 31.10.2013 (Exhibit-12) under Section 302/34 IPC. 6. As Section 302 IPC is exclusively triable by the Court of Sessions, learned SDJM(S), Tezpur by order dated 06.06.2005 committed the said G.R. Case No. 6/2002 to the Court of learned Sessions Judge, Sonitpur, Tezpur wherein it was registered and numbered as Sessions Case No. 110/2005. 6. As Section 302 IPC is exclusively triable by the Court of Sessions, learned SDJM(S), Tezpur by order dated 06.06.2005 committed the said G.R. Case No. 6/2002 to the Court of learned Sessions Judge, Sonitpur, Tezpur wherein it was registered and numbered as Sessions Case No. 110/2005. The Trial Court on 04.07.2005 framed charge under Section 302 IPC against the three charge sheeted accused persons of the case for alleged murder of Prithwiraj Ghosh, which was read over and explained to them, to which the accused persons pleaded not guilty and claimed to be tried. Accordingly, the trial of said Sessions Case No. 110/2005 started. 7. During the trial, since 17.12.2013 the accused Sonu Ali remained absent in the case and for his appearance in the matter, orders of Non Bailable Warrant of Arrest, Proclamation and Attachment were issued against him in said Sessions Case No. 110/2005. The said accused Sonu Ali did not appear in the matter and absconded though the concerned Executing Officer made Search and Seizure and executed the order of Proclamation and Attachment. To that extent said Executing Officer submitted reports on Attachment, Proclamation, Search and Seizure and also Separate Report with regard to the said accused Sanu Ali. After examining the said Executing Officer, Bidya Ram Kalita, ASI of police and on recording his evidence to that extent, the learned Trial Judge by order dated 27.06.2014 passed in said Sessions Case No. 110/2005 declared Sonu Ali, another accused of the case, as an absconder and the case was filed against him. 8. To prove the guilt of the accused, prosecution examined 17 (seventeen) witnesses, including the concerned autopsy doctor, who conducted the post-mortem examination of the deceased; the investigating officer of the case and others. The defence did not adduce any evidence, but cross-examined the prosecution witnesses. After completion of recording of evidence of prosecution witnesses, the Trial Judge on 08.01.2015 recorded the statements of the accused persons under Section 313 CrPC, wherein they denied all the accusations made against them by the prosecution witnesses. However, in their statements recorded under Section 313 CrPC regarding their identification during TIP by the concerned witness, the accused persons stated that they being his neighbours, the said witness identified them during the TIP. The two accused persons denied to adduce evidence in the case. 9. However, in their statements recorded under Section 313 CrPC regarding their identification during TIP by the concerned witness, the accused persons stated that they being his neighbours, the said witness identified them during the TIP. The two accused persons denied to adduce evidence in the case. 9. Having found the accused persons guilty of the offence, under Section 302 IPC, the learned Trial Court by the impugned Judgment dated 09.04.2015 convicted them and passed sentence against them as noted above. Aggrieved by their conviction and the sentence passed against them, the accused persons have preferred this appeal. 10. We have heard Ms. P. B. Bordoloi, learned Amicus Curiae for the appellants and Ms. S. Jahan, learned Additional Public Prosecutor, Assam for the State, respondent No.1. 11. Ms. Bordoloi, learned Amicus Curiae for the appellants submitted that the prosecution failed to prove the guilt of the accused appellants beyond all reasonable doubt and that the appellants have been convicted on mere suspicion only. As such she submitted that the impugned judgment of conviction and sentence should be set aside and quashed and the appellants should be acquitted from the charge in the case. Ms. Jahan, learned Additional Public Prosecutor for the State respondent on the other hand submitted that the Trial Court on proper appreciation of evidence adduced by the prosecution passed the impugned judgement of conviction and sentence, which does not call for any interference. 12. To ascertain the correctness of the impugned judgment let us briefly go through the evidence on record. 13. First let us consider the evidence of PW.9, the doctor who had admittedly conducted the post mortem examination on the dead body of Prithwiraj Ghosh on 01.01.2002 and found as follows: "Stout male body. Rigor mortis present. INJURY Sharp cut injury on the right wrist almost completely separated from the upper limb. Three cut injuries (superficial) on left hand. One deep cut injury on palm of the left hand. Bruise on the back of chest and abdomen. Sharp cut injury over the middle part of the upper abdomen. Penetrating injury over the small intestine. CRANIUM Seven sharp cut injuries on the scalp. One deep cut injury on the upper part of neck extending upto the lower cranium. One deep cut injury on palm of the left hand. Bruise on the back of chest and abdomen. Sharp cut injury over the middle part of the upper abdomen. Penetrating injury over the small intestine. CRANIUM Seven sharp cut injuries on the scalp. One deep cut injury on the upper part of neck extending upto the lower cranium. BRAIN MATTER Two deep cut injuries on the skull exposing brain matter The injuries were ante mortem in nature." In the opinion of the said doctor PW.9 the cause of death of the deceased was due to cut injury on his head and his right hand and the said doctor proved the Post Mortem Examination Report,Exhibit-5 and his signature on it. During his cross examination by the defence, said doctor PW.9 stated that the penetrating injury in the abdomen of the deceased was caused by sharp pointed weapon, but he did not mention the duration of the injury in his report. 14. It is seen that regarding the cause of death of the deceased, the findings of the doctor PW.9 and his opinion was not disputed at the trial. Since there were seven sharp cut injuries on the scalp, one deep cut injury on the upper part of neck extending upto the lower cranium, two deep cut injuries on the skull exposing brain matter and penetrating injury over the small intestine on the person of the deceased, which were ante mortem in nature, as such the prosecution could prove that the death of the deceased was homicidal in nature. 15. Pw.1, Rajesh Thakury deposed before the Trial Court that on the night of 31.12.2001 around 01:00 pm while he was in his house, he heard a cry for help and his mother asked him to enquire about it. Then he came out of his house and saw the accused persons standing near the church and as he moved forward to them, the accused Khiris threatened him saying that if he steps forward he would also be hacked. He also deposed that he saw an object, like dao, on the hand of Khiris''s, but out of fear, he went inside his house. He proved his statement recorded by the Magistrate, Exhibit-1 and his signature on it. He also deposed that he saw an object, like dao, on the hand of Khiris''s, but out of fear, he went inside his house. He proved his statement recorded by the Magistrate, Exhibit-1 and his signature on it. During his cross-examination by the defence, PW.1 stated that on the night of the incident though there was fog, but there was moonlight and that he recognised the accused persons by their voices as they were from the same village and stated that his house was about 50/60 feet away from the church. PW.1 in his statement under Section 164 CrPC deposed before the Magistrate, Exhibit1, that on 31.12.2001, while he was sleeping at his house, at night around 01:30 pm hearing a cry for help, his mother woke him up and when he came out of his house for about 15 feet, he saw Khris, Kamila and Sanu about 50 meters away, with dao in their hands and as they threatened him saying that if he comes forward he will be killed, he returned home and on the next morning he saw blood spots in that area . 16. Pw.2, Joy Nath Singh deposed before the Trial Court that on the night of 31.12.2001 around 01:30, hearing a commotion outside his house, he came out and saw few boys and amongst them, he saw that the accused persons were assaulting one person, but stated that he did not move forward near that place and remained inside his house. He also deposed that on the following day he learnt that the accused persons had killed a person with surname Ghosh. He proved his statement recorded by the Magistrate, Exhibit-2, including his signature on it. During his cross-examination by the defence, PW.2 stated that he saw the incident from a distance of 15/20 meters, did not talk with the persons who made the assault, did not see as to who was being assaulted in the night and that he just saw a person being assaulted. He also stated that when he saw the person on being lifted from the pond on the next day, he understood that it was the same person who was assaulted by those persons, whom he had seen in the previous night. He also stated that when he saw the person on being lifted from the pond on the next day, he understood that it was the same person who was assaulted by those persons, whom he had seen in the previous night. In his statement under Section 164 CrPC, PW.2 deposed before the Magistrate Exhibit2, that on 31.12.2001, while he was sleeping at his house all of a sudden he heard that someone was being assaulted. About 30 feet away from his house he saw Khris and Sanu assaulting someone and Khris was saying "come Sanu, I am holding him". As Khris and Sanu warned them, he did not to move forward and on the next day from the nearby pond police recovered dead body of one person named as Ghosh. 17. Pw.3, Mahender Singh is the witness who saw the dead body of the deceased floating in the pond and informed the villagers who was not aware as to how the incident occurred and also a signatory to the Inquest Report of the deceased, Exhibit-3. 18. Pw.4, Chatra Bahadur Chetry, an employee of the Air Force deposed before the Trial Court that on the night of 31.12.2001 while he was sleeping, his mother woke him up saying that someone is crying for help and when he went out, from a distance of about 15 feet he heard that someone is being assaulted and near the house of Rajesh Thakury (PW.1) he saw three persons with arms in their hand and one person was lying in the ground, whom he could not recognise due to darkness and that he did not go near that place. He also deposed that police as well as the t Magistrate recorded his statements, which is Exhibit-4 and proved his signature on it. During his cross-examination by the defence, PW.4 stated that because of the darkness at night he could not identify any person. He also deposed that police as well as the t Magistrate recorded his statements, which is Exhibit-4 and proved his signature on it. During his cross-examination by the defence, PW.4 stated that because of the darkness at night he could not identify any person. PW.4 in his statement under Section 164 CrPC deposed before the Magistrate, Exhibit4, that on 31.12.2001, hearing the cry for help around 01:30 pm, his mother woke him up and when he went out he heard someone saying "mar-mar" (hit-hit) and when he moved forward, he saw Khris, Kamila and Sanu were assaulting a person with a weapon like khukuri (Nepali Dagger) and as Khris warned him that if he comes forward he shall also be hacked, he returned and that on the next day, dead body of a man, named Ghosh was recovered. 19. Pw.5, Rekha Sharma over phone informed Salonibari Out Post that a dead body was found floating in the fond and she was not aware about the occurrence of the incident. 20. Pw.6, Nirmal Baruah deposed before the Trial Court that in the morning on 01.01.2002 two boys from the village informed him that a dead body was found floating in the pond and then he went to that pond, saw the dead body and thereafter went to Salonibari Police Station to inform the same. He also deposed that he came with police to that pond and in the mean while police personnel from Air Force also arrived at that place and then all the people present their came to know that the deceased was Prithwiraj Ghosh. He deposed that he was present during the inquest of the said deceased and also a signatory to the Inquest Report (Exhibit-3). During his cross examination by the defence, PW.5 stated that a boy named Mahender Singh (PW.3) first informed him about the recovery of the dead body and that he was not aware as to how the incident occurred. 21. Pw.7, Sahed Ali deposed before the Trial Court that on 01.01.2002 police called him to Salonibari Out Post and interrogated him, asking him where about of his uncle Sanu Ali to which he replied that he is not aware about him. He also deposed that from police he could come to know that Sanu, Kamil and Khiris killed a man from Air Force. Defence declined to cross examine him. 22. Pw.8, Ms. He also deposed that from police he could come to know that Sanu, Kamil and Khiris killed a man from Air Force. Defence declined to cross examine him. 22. Pw.8, Ms. Maya Nayak deposed before the Trial Court that she could learnt that a man named Ghosh of Air Force was murdered and that she does not know as to who killed him. She deposed that she saw said Ghosh and his wife often visiting the house of a lady named Julie. Defence did not cross examine her. 23. Pw.10, Dharmaraj Chetry, a NCE (Non Combatant Enrolled) of Air Force, who was posted at 11 Wing, Air Force at Tezpur at the relevant time deposed before the Trial Court that on the night of 31.12.2001 he came to his house at Sitabasti and met Ghosh (the deceased) at Ranbir''s house and told him that he had come to celebrate New Year. Then he along with Ghosh went to the house of Julie to celebrate the New Year and after enjoying song and dance there for some time, they returned from Julie''s house. He deposed that while returning 3/4 boys asked them to provide liquor to them that include the three accused persons of the case, amongst whom Sanu was known to him, who threatened them by showing a dao. He went on deposing that they asked those boys from where they shall arrange liquor for them and then those three persons along with another started assaulting him and Ghosh with lathi and dao and during that palm of his right hand was injured due to lathi blow on him. He further deposed that they ran towards the house of Manna Narayan to save their life and asked them to open the door, but they did not. At that time those three persons after a chase apprehended them and brought them near the house of a person whose surname was Das and started assaulting them in front of a pole. Said PW.10 deposed that he cried out for help and somehow they ran away from that place and that Ghosh fell down on the road and he managed to escape by entering the house of a Mali of the Air Force and that he did not know what happened to Ghosh. On the following morning he learnt about the death of Ghosh. On the following morning he learnt about the death of Ghosh. Said PW.10 further deposed that on the said night he did not inform about the incident to any else even the said Mali, as the accused persons threatened to kill him and informed the said incident to the Air Force personnel only on the next day. He deposed that said Ghosh was serving in the Air Force. During his cross-examination by defence PW.10 stated that Ranbir still resides in the same village and that Julie''s house was behind Ranbir''s house. He stated that the accused persons were dancing and had liquor at Julie''s house and that he doesn''t know whether said Mali was still there or not. He stated that Mali''s wife was also there when he stayed in the house of said Mali on that night and that he revealed the incident to them. He denied all the suggestions made by the defence, but stated that the Air Force Guard and police brought him to the jail and he identified the accused persons (appellants) in the jail. 24. Pw. 11, Jakarias Kandulana, father of the accused Kamila Kandulana deposed before the Trial Court that at the time of the incident he was not at home and Kamila was in election duty. He also deposed that Police recorded his statement and that he had no knowledge about the incident and that he heard that an Air Force man was killed. He also deposed that accused Khiris use to visit his house occasionally. Defence did not cross examine him. 25. Pw. 12, Kanhaya Rai, Security Officer of 11 Wing, Air Force at the relevant time was the informant of the case who submitted the written ejahar of the case, Exhibit-6 and identified his signature on it. He deposed that on 01.01.2002, the dead body of the deceased Ghosh, an Air Force personnel was found floating in a pond near the boundary wall of Air Force at village Solagaon. During his cross-examination by the defence, PW.12 stated that he does not know anything about the occurrence. 26. He deposed that on 01.01.2002, the dead body of the deceased Ghosh, an Air Force personnel was found floating in a pond near the boundary wall of Air Force at village Solagaon. During his cross-examination by the defence, PW.12 stated that he does not know anything about the occurrence. 26. Pw.13, Paramananda Kalita, the In-Charge of Salonibari Out Post at the relevant time who started the investigation of the case, deposed before the Trial Court that on 01.01.2002 around 09:45 am, over phone, Rekha Sharma (PW.5) informed that a body of an unknown person was floating on a pond in a field at Sitabasti and at the same time Nirmal Baruah (PW.6), the Village Headmen (Gao Burha) also arrived at the police outpost with the same information and that he accordingly made the G.D. Entry No. 2 dated 01.01.2002 and proceeded to the place of occurrence. He deposed that during investigation he forwarded the witnesses to the Magistrate to record their statements under Section 164 CrPC and that he made prayer for identification of the two arrested accused persons and accordingly, TIP was held, wherein the witness Dharmaraj Chetry (PW.10) identified the two accused persons. He deposed that during the investigation of the case, he was transferred and he submitted the case diary to the then Officer- in-Charge of Tezpur Police Station. During his cross-examination by the defence, PW.13 stated that on receipt of verbal instruction, he proceeded with the investigation of the said G.R. Case. He also stated that PW.1 Rajesh Thakury neither stated before him that he recognised the accused persons in the moonlight nor he stated that he saw a weapon like Dao in the hand of Khristofar. PW.13 also stated that PW.1 did not state before him that Khristofar with the said Dao threatened him saying that if he steps forward, he shall also be hacked. PW.13 during his cross-examination stated that PW.2, Joy Nath did not state before him that Kamila, Khristo and another were assaulting one person. PW.13 also stated that PW.1 did not state before him that Khristofar with the said Dao threatened him saying that if he steps forward, he shall also be hacked. PW.13 during his cross-examination stated that PW.2, Joy Nath did not state before him that Kamila, Khristo and another were assaulting one person. Said Investigating Officer, PW.13 stated that PW.10, Dharmaraj Chetry stated before him that they (he and Ghosh) returned from Ranbir''s house around 11:00 pm and that he had shaken hands with Julie and her mother at Ranbir''s house, but said Dharmaraj did not state before him that 3/4 boys asked Ghosh for money to drink liquor nor he (Dharmaraj) stated that they (PW.10 and Ghosh) asked the accused persons where from they would provide liquor to them and also did not state before him that by showing dao Khristofar threatened them. PW.13 in his cross-examination also stated that witness Dharmaraj (PW.10) also did not state before him that he had cried out to Tirki''s wife for help, that Tirki had came out and her elder son took her away and that the three accused persons along with another assaulted him and Ghosh with stick and dao. PW.13 went on stating that said PW.10 Dharmaraj did not state before him that he had gone to Manna Narayan''s house and that the inmates of the said house did not open the door and then the three accused persons apprehended them, brought them near the house of a person named Das and assaulted them under a pole and that he shouted for help. PW.13 further stated that the witness Dharmaraj did not state before him that as the accused persons threatened him he did not tell anyone about the incident. 27. Pw. 14, Satya Nath Sarma deposed before the Trial Court that at the relevant time he was serving as Judicial Magistrate First Class, Sonitpur, Tezpur and he recorded the statements under Section 164 CrPC of Rajesh Thakury (Exhibit-1), Joy Nath Singh (Exhibit-2), Chatra Bahadur Chetry (Exhibit-4) and Smti. Santoshi Chetri (Exhibit-11), proved his signature on those statements and also deposed that said Smti. Santoshi Chetri had given her thumb impression in his presence. Santoshi Chetri (Exhibit-11), proved his signature on those statements and also deposed that said Smti. Santoshi Chetri had given her thumb impression in his presence. During his cross-examination by defence, PW.14 stated that witness Rajesh Thakury did not state before him that one Khiris had weapon in his hand and that the said witness also did not state that Khiris threatened him not to proceed otherwise he would be killed and that he recorded the statements of those witnesses on 07.01.2002. 28. Pw. 15, Joy Ram Borah deposed before the Trial Court that on 16.04.2003, he was the In-Charge of Salonibari Out Post and took up the investigation of the case on receipt of the relevant case diary. He found that the investigation of the case was almost complete except the arrest of the accused Sanu, who was evading arrest. He submitted that the charge sheet in the case, Exhibit-12 was filed against all the three accused, Khristofar Tappo, Kamil Kandulona and Sanu Malik, showing accused Sanu Malik as absconder in it and identified his signature on the same. Defence declined to cross examine PW.15. 29. Pw. 16, Pradip Kumar Das deposed before the Trial Court that on 19.03.2002, he was the In-Charge of Salonibari Out Post and that he took up the investigation of Tezpur P.S. Case No. 5/2002 under Section 302 IPC as the earlier Investigating Officer of the case was transferred and that he found that TIP of two accused were already conducted, but did not find its order sheet. He also deposed that another accused Sanu Malik could not be arrested in the case and that from the GR Branch of the Court, he had collected the relevant documents of the TIP and as he was transferred, he submitted the entire case diary before the Officer-in-Charge of Tezpur Police Station. Defence did not cross examine said PW.16. 30. Pw. 17, Tarokeswar Lohar deposed before the Trial Court that on 30.02.2012, he was serving as Sub-Divisional Judicial Magistrate (Sadar) at Sonitpur, Tezpur and on receipt of an order of the CJM, Sonitpur, Tezpur in G.R. Case No. 6/2002 under Section 302 IPC, he was present during the TIP of the accused persons Kamil Kandulona and Khristofar Tappo @ Khiris Tappo that was conducted inside the jail premises on 02.02.2002. He also deposed that from amongst 50 prisoners having almost same appearance and almost similar dress, the witness Dharmaraj Chetry (PW.10) by touching their bodies identified Kamil Kandulona and Khristofar Tappo. The said SDJM (S), PW.17 proved the order of the CJM, Sonitpur, Tezpur dated 30.01.2002, Exhibit-13 as well as the signature of the said CJM on it and the prescribed Forms of TIP, Exhibits-14 (1) and (2) and his signatures on those Forms and also the signatures of the witness Dharmaraj Chetry that were taken before him. During his cross-examination by the defence PW.17 from the records of the G.R. Case stated that the accused persons were arrested on 21.01.2002, produced before the Court, remanded them to police custody, who where again produced on 23.01.2002 and on 30.01.2002 the Investigating Officer of the case prayed for conducting of TIP of the accused persons. He stated that he cannot say as to whether the accused persons were taken by police during their police custody and that in the TIP Forms, the type of dress wore by the accused persons at the time of their identification were not mentioned and also did not write about the height, description of appearance of the accused persons. But he stated that it was written that they were identified amongst the other persons of the same height and description etc. He also stated that the column No.8 of those Forms does not contain the remarks and signatures of the Investigating Officer of the case. He denied the suggestion that the TIP was not conducted as per the procedure of law. 31. We have carefully perused the evidence, the exhibits and the records of the case. The prosecution through the evidence of its prime witnesses PW.1 Rajesh Thakury, PW.2 Joy Nath Singh, PW.3 Chatra Bahadur Chetry and PW.10 Dharmaraj Chetry tried to establish the involvement of the appellants in the case. We have already seen that PW.1 in his crossexamination stated that on the night of the incident he recognised the accused persons from their voices as they were from the same village. We have already seen that PW.1 in his crossexamination stated that on the night of the incident he recognised the accused persons from their voices as they were from the same village. Regarding identification or recognition of the accused persons on the night of the incident, the Investigating Officer of the case, PW.13 did not corroborate the statement of said PW.1 as the said witness, during investigation, neither stated before the said Investigating Officer about recognition of the accused appellants in the moonlight nor stated before him that a dao like weapon was in the hand of Khristofar by which he threatened the said witness. 32. Similarly, PW.2 though deposed before the Trial Court that on the night of 31.12.2001 around 01:30 on hearing a commotion outside his house he came out and saw a few boys and amongst them he saw the accused persons were assaulting one person, but his said statement was not corroborated by the concerned Investigating Officer of the case, PW.13 since the said witness (PW.2) during investigation of the case did not state before the said police officer that the accused appellants with the other accused and another were assaulting one person. We have also seen that the PW.4 in his evidence stated that due to darkness at night, he did not recognise any person present at the time of the incident. 33. Pw.10, identified the accused appellants during the TIP in Tezpur Jail. In his evidence PW.10 deposed that 3/4 boys including the three accused persons asked them (said PW.10 and the deceased Ghosh) to provide liquor to those boys amongst whom Sanu was known to him, who threatened them by showing a dao and those three persons along with another started assaulting him and Ghosh with lathi and dao and because of lathi blow on him, palm of his right hand was injured. He deposed that then they ran towards the house of Manna Narayan to save their life and asked them to open the door, but the inmates of the house did not open the door. At that time those three persons, after a chase, apprehended them and brought them near the house of a person whose surname was Das and started assaulting them in front of a pole. At that time those three persons, after a chase, apprehended them and brought them near the house of a person whose surname was Das and started assaulting them in front of a pole. He deposed that that he out cried for help and somehow they ran away from that place and Ghosh fell down on the road, but he managed to escape by entering the house of a Mali of Air Force. But the Investigating Officer of the case, PW.13 did not corroborate the statement of PW.10 saying that the said witness during investigation of the case did not state before him that 3/4 boys asked Ghosh for money to drink liquor on the night of the incident, that they (PW.10 and Ghosh) asked the accused persons where from they would provide liquor to them, that by showing dao Khristofar threatened them, that he had cried out to Tirki''s wife for help, that Tirki had came out and her elder son took her away, that he had gone to Manna Narayan''s house and the inmates of the said house did not open the door and theeafter the three accused persons apprehended them, brought them near the house of a person named Das and assaulted them under a pole, that he shouted for help, that the three accused persons along with another assaulted him and Ghosh with stick and dao and that as the accused persons threatened him he did not tell anyone about the incident. 34. We have seen that the evidence regarding maar-pit (brawl/fight) by the accused persons with PW.10 and the deceased Ghosh during the night of the incident could not be destroyed by the defence. But it is also in evidence that both PW.10 and said Ghosh somehow ran away from them and Ghosh fell down in the road and PW.10 entered the house of a Mali (Gardener) of the Air Force. But after such maar-pit, when said PW.10 and Ghosh ran away, thereafter there is no evidence from the prosecution that the accused appellants chased them again. But after such maar-pit, when said PW.10 and Ghosh ran away, thereafter there is no evidence from the prosecution that the accused appellants chased them again. From the evidence of the autopsy doctor, PW.9 and the post mortem report of the deceased, Exhibit-5 we have noticed that the dead body of the deceased had sharp cut injuries on the scalp, deep cut injuries on the skull exposing brain matter, deep cut injury on the upper part of neck extending upto the lower cranium and penetrating injury over the small intestine and those were ante mortem in nature. From such injuries, generally it can be established that for such injuries sharp and pointed weapon (s) have to be used. But we have noticed that the prosecution failed to establish that the accused appellants during such maar-pit had any weapon like dao or other sharp and pointed weapon with them. We have also observed that the appellants were arrested during investigation of the case and the other accused Sanu appeared on few dates before the Trial Court during recording of evidence of some of the prosecution witnesses. But, the prosecution did not make any attempt to recover the weapon (s) used in the crime. 35. Moreover, we have also observed that the prosecution did not examine Manna Narayan or any one of his family regarding the shelter and help sought by PW.10 and said Ghosh, the deceased. Prosecution also did not examine the said Mali (Gardener) of the Air Force or his wife, in whose house PW.10 alleged to have taken shelter on the night of the incident, after escaping from the accused persons as stated by him. 36. It is settled that in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt. It is also settled that while making appreciation of evidence, a presumption cannot be raised against the accused either of fact or in evidence and the rule of evidence is that it must be read as it is available on record. The prosecution must prove its case beyond any reasonable doubt and such is not the burden on the accused. 37. The prosecution must prove its case beyond any reasonable doubt and such is not the burden on the accused. 37. In the case of Babu Singh -Vs- State of Punjab, (1963) 3 SCR 749 : (1964) 1 Cri LJ 566 , a three Judges Bench of the Hon''ble Supreme Court have held that " in a criminal trial, the presumption of innocence is a principle of cardinal importance and so, the guilt of the accused must in every case be proved beyond a reasonable doubt. Probabilities however strong and suspicion however grave can never take the place of proof." 38. With regard to criminal trial and its standard of proof, referring its earlier decisions, the Hon''ble Supreme Court in the case of Paramjeet Singh -Vs- State of Uttarakhand, (2010) 10 SCC 439 , , have held as follows: 10. A criminal trial is not a fairy tale wherein one is free to give flight to one''s imagination and fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions". Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence." In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinising the evidence more closely, lest the shocking nature of the crime induces an instinctive reaction against dispassionate judicial scrutiny of the facts and law. [ Kashmira Singh -Vs- State of M.P., (1952) AIR SC 159 ; State of Punjab -Vs- Jagir Singh, (1974) 3 SCC 277 ; Shankarlal Gyarasilal Dixit -Vs- State of Maharashtra, (1981) 2 SCC 35 ; Mousam Singha Roy -Vs- State of W.B., (2003) 12 SCC 377 and Aloke Nath Dutta -Vs- State of W. B., (2007) 12 SCC 230 ] . 11. In Sarwan Singh Rattan Singh -Vs- State of Punjab, (1957) AIR SC 637 this Court observed: (AIR p. 645, para 12) "12. considered as a whole the prosecution story may be true; but between ''may be true'' and ''must be true'' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence [before an accused can be convicted]." 12. Thus, the law on the point may be summarised to the effect that in a criminal trial involving a serious offence of a brutal nature, the court should be wary of the fact that it is human instinct to react adversely to the commission of the offence and make an effort to see that such an instinctive reaction does not prejudice the accused in any way. In a case where the offence alleged to have been committed is a serious one, the prosecution must provide greater assurance to the court that its case has been proved beyond reasonable doubt. 39. Regarding suspicion of committing the crime by the accused, the Hon''ble Supreme Court in the case of Sujit Biswas -Vs- State of Assam, (2013) 12 SCC 406 , have held as follows: "13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved, and something that "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large, and divides vague conjectures from sure conclusions. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. [ Hanumant Govind Nargundkar -Vs- State of M. P., (1952) AIR SC 343 ; State -Vs- Mahender Singh Dahiya, (2011) 3 SCC 109 and Ramesh Harijan -Vs- State of U. P., (2012) 5 SCC 777 ) . 14. In Kali Ram -Vs- State of H. P., (1973) 2 SCC 808 this Court observed as under: (SCC p. 820, para 25) "25. Another 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. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence." 15. In Sharad Birdhichand Sarda -Vs- State of Maharashtra5 this Court held as under: (SCC p. 185, para 153) "153. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence." 15. In Sharad Birdhichand Sarda -Vs- State of Maharashtra5 this Court held as under: (SCC p. 185, para 153) "153. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, * * * (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." 16. In M. G. Agarwal -Vs- State of Maharashtra, (1963) AIR SC 200 , this Court held, that if the circumstances proved in a case are consistent either with the innocence of the accused, or with his guilt, then the accused is entitled to the benefit of doubt. When it is held that a certain fact has been proved, then the question that arises is whether such a fact leads to the inference of guilt on the part of the accused person or not, and in dealing with this aspect of the problem, benefit of doubt must be given to the accused, and a final inference of guilt against him must be drawn only if the proved fact is wholly inconsistent with the innocence of the accused, and is entirely consistent with his guilt. 17. Similarly, in Sharad Birdhichand Sarda, (1984) 4 SCC 116 this Court held as under: (SCC pp. 127-28) Graver the crime, greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt or the accused is sought to be established by circumstantial evidence. 18. Thus, in view of the above, the court must consider a case of circumstantial evidence in the light of the aforesaid settled legal propositions. The principle has special relevance where the guilt or the accused is sought to be established by circumstantial evidence. 18. Thus, in view of the above, the court must consider a case of circumstantial evidence in the light of the aforesaid settled legal propositions. In a case of circumstantial evidence, the judgment remains essentially inferential. Inferences are drawn from established facts, as the circumstances lead to particular inferences. The court must draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion, that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused. 19. This Court in Babu -Vs- State of Kerala, (2010) 9 SCC 189 , has dealt with the doctrine of innocence elaborately, and held as under: (SCC p. 201, paras 27-28) "27. Every accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right. However, subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence. For this purpose, the nature of the offence, its seriousness and gravity thereof has to be taken into consideration. The courts must be on guard to see that merely on the application of the presumption, the same may not lead to any injustice or mistaken conviction. Statutes like the Negotiable Instruments Act, 1881; the Prevention of Corruption Act, 1988; and the Terrorist and Disruptive Activities (Prevention) Act, 1987, provide for presumption of guilt if the circumstances provided in those statutes are found to be fulfilled and shift the burden of proof of innocence on the accused. However, such a presumption can also be raised only when certain foundational facts are established by the prosecution. There may be difficulty in proving a negative fact. 28. However, in cases where the statute does not provide for the burden of proof on the accused, it always lies on the prosecution. It is only in exceptional circumstances, such as those of statutes as referred to hereinabove that the burden of proof is on the accused. There may be difficulty in proving a negative fact. 28. However, in cases where the statute does not provide for the burden of proof on the accused, it always lies on the prosecution. It is only in exceptional circumstances, such as those of statutes as referred to hereinabove that the burden of proof is on the accused. The statutory provision even for a presumption of guilt of the accused under a particular statute must meet the tests of reasonableness and liberty enshrined in Articles 14 and 21 of the Constitution." 40. In the case of Latesh -Vs- State of Maharashtra, (2018) 3 SCC 66 , the Hon''ble Supreme Court have held as follows: "45. The prosecution has to prove the guilt of the accused beyond all reasonable doubt. The accused has a profound right not to be convicted for an offence which is not established by the evidential standard of proof beyond reasonable doubt. The law does not permit the court to convict the accused based on suspicion or on the basis of preponderance of probability. 46. In our opinion, an ingenious mind can question anything and, on the other hand, there is nothing which it cannot convince. When you consider the facts, you have a reasonable doubt as to whether the matter is proved or whether it is not a reasonable doubt in this sense. The reasonableness of a doubt must be a practical one and not on an abstract theoretical hypothesis. Reasonableness is a virtue that forms as a mean between excessive caution and excessive indifference to a doubt." 41. Taking into account all the above stated circumstances coupled with the evidences, we are of the opinion that the case of the prosecution, suffers from proven improbabilities, infirmities and contradictions. We have found that regarding homicidal death of the deceased Prithwiraj Ghosh, the Air Force personnel, the prosecution has failed to prove and establish the fact of involvement and guilt of present accused appellants beyond reasonable doubt. 42. Accordingly, we allow the present appeal. 43. The impugned judgment dated 09.04.2015 passed by learned Additional Sessions Judge, Sonitpur, Tezpur convicting the appellants Kamil Kandulona and Khristofar Tappo @ Khiris Tappo in Sessions Case No. 110/2005, arising out of G.R. Case No. 6/2002 corresponding to Tezpur P.S. Case No. 05/2002 under Section 302 IPC and sentencing them to undergo Rigorous Imprisonment for Life, with fine of Rs. The impugned judgment dated 09.04.2015 passed by learned Additional Sessions Judge, Sonitpur, Tezpur convicting the appellants Kamil Kandulona and Khristofar Tappo @ Khiris Tappo in Sessions Case No. 110/2005, arising out of G.R. Case No. 6/2002 corresponding to Tezpur P.S. Case No. 05/2002 under Section 302 IPC and sentencing them to undergo Rigorous Imprisonment for Life, with fine of Rs. 2,000/-, in default to undergo Rigorous Imprisonment for another one month are hereby set aside and quashed. Consequently, both the appellants named above are acquitted of the offence under Section 302 IPC in the said Sessions Case No. 110/2005 arising out of Tezpur Police Station Case No. 05/2002. They be set at liberty forthwith, if there is no other impediment on it. 44. However, we made it clear that our observation and opinion, noted above are with regard to the present appellants only. 45. We appreciate the valuable assistance rendered by both Ms. Purnima Baruah Bordoloi, learned Amicus Curiae, appearing for the accused appellants and Ms. Shamima Jahan, learned Additional Public Prosecutor, Assam representing the State. The Gauhati High Court Legal Services Authority, Guwahati shall pay an amount of Rs. 7,500/- to the learned Amicus Curiae Ms. Purnima Baruah Bordoloi towards her professional fee. 46. Registry shall return the records to the Court of learned Additional Sessions Judge, Sonitpur, Tezpur along with a copy of this Judgment.