(1) THE judgment of the Court was as follows : Bhattacharya, J. : The hearing stems from an appeal preferred against the judgment and order of conviction and sentence passed by the learned additional Sessions Judge, 3rd Court, Midnapore in S. T. Case No. 10 of august, 1993 on 26. 05. 1994.

(2) A thumbnail sketch of the prosecution case is that Smt. Malati bhowmick was often subjected to torture, mentally and physically, in her in-laws house by the members of the family including mother-in-law but excluding the eldest brother-in-law and his wife, by way of assault and not offering food. On 20. 09. 1986 at about 2. 45 a. m. she expired. In day-time on that day the mother-in-law assaulted her and it is apprehended that all the members of the house had assaulted and committed her murder during night and to avoid the blame her body was hung up in a tamarind tree in the cover of dark night. Hence, all the four accused persons viz. Smt. Haimabati Bhowmick, kalipada Bhowmick, Shyamapada Bhowmick and Uttam Bhowmick were charged under Sections 302/34 and 201/34 I. P. C.

(3) THE defence case, as suggested to P. Ws. 1, 4, 6 and 7 and as contended by the accused persons during their examination under Section 313 Cr. P. C. , is that the victim malati was neither ill-treated nor tortured nor there was any denial of food to her. The accused persons have been falsely implicated in this case.

(4) 20 witnesses were examined on behalf of the prosecution, whereas none was examined on behalf of the defence, and after considering the facts, circumstances and materials-on-record, the learned Court below found the husband accused Kalipada Bhowmick guilty under Sections 302 and 201/34 i. P. C. , convicted him accordingly and sentenced him to suffer imprisonment for life and to pay fine of Rs. 2000/- i. d. to imprisonment for two years and r. I. for three years and to pay fine of Rs. 1000/- i. d. to imprisonment for one. year respectively, and acquitted other accused persons of the charges.

(5) BEING aggrieved by and dissatisfied with the said judgment and order of conviction and sentence, the convict Kalipada has preferred the present appeal.

(6) ALL that now requires to be considered is whether the learned Court below was justified in passing the above order of conviction and sentence.

(7) OUT of the above witnesses, P. Ws. 1 to 4, 6, 7, 19 (I. O.) and 20 (autopsy surgeon) are vital, others were either tendered for cross-examination or declared hostile or formal.

(8) THE present case rests on circumstantial evidences, the circumstance being the victim last seen together with accused Kalipada. Before a person can be convicted on the strength of circumstantial evidence, the circumstances in question must be satisfactory established and the proved circumstances must bring home the offence to the accused beyond all reasonable doubt. If these circumstances can be explained by any reasonable hypothesis, then the accused must have the benefit of the hypothesis (AIR 1980 SC 1168 [LQ/SC/1980/44] , AIR 1981 SC 34 [LQ/SC/1980/304] etc.). When a case rests entirely on circumstantial evidence, such evidence must satisfy the following tests : (1) the circumstances from which an inference of guilty is to be drawn must be cogently and firmly established and not may be established, (2)the circumstances should be of a conclusive nature and definite tendency unerringly pointing towards the guilt of the accused and the facts so established should be consistent not only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty but they should exclude every possible hypothesis except the one to be proved and (3) 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 (AIR 1984 SC 1622 [LQ/SC/1984/171] , AIR 1977 SC 1116 [LQ/SC/1977/98 ;] ">AIR 1977 SC 1116 [LQ/SC/1977/98 ;] [LQ/SC/1977/98 ;] ). Ordinarily, the fact that accused and the deceased were last found together and the failure of accused to explain disappearance is a circumstance pointing to murder by accused, but this fact alone is not enough to find guilt.

(9) P. W. 1 (defacto-complainant) on receipt of an intimation from local people regarding the death of the victim Malati at about 3. 00 a. m. had been to the locality being accompanied by some persons, found the dead body of the victim hanging from a branch of a tamarind tree at a height of 11/12 ft. from the ground level and in-formed the matter in writing (Ext. 1) to the local p. S. The police came and got the dead body untied from the branch of the said tree through the husband of the deceased. On being pointed out by police he marked abrasions on the elbow and back of the victim. P. W. 6, a neighbour, found black mark of rope around the throat and nail marks right below that. The evidence of P. W. 7, another neighbour, who found nail mark on the throat, abrasion on elbow and a black mark at the back does not appear to be in consonance with the above evidence of P. W. 6. Moreover, there is no such earlier statement under Section 161 Cr. P. C. on his (P. W. 7) as is evident from his cross-examination.

(10) P. W. 20 on holding P. M. Examination over the dead body of the victim on 21. 09. 1986 found two bruises obliquely situated below chin extending from ligature mark in the neck upto the chin, one ligature mark round the neck, 2" below the chin, with a gap of 2" near left ear, no perchmentisation, hyoid bone intact and on dissection found inner surface of larynx lacerated and opined that death was due to rasphyxia as a result of strangulation. The injuries and strangulation were ante-mortem in nature. Bruises and ligature mark could very well be caused by strangulation with a rope or a folded sari, and the laceration in the larynx could also be caused by strangulation. He, however, did not give any specific opinion whether the death was homicidal suicidal or accidental in nature which is undoubtedly an infirmity going very much against the prosecution.

(11) NEVERTHELESS, in regard to the above circumstance i. e. the deceased last seen together with accused Kalipada, P. W. 2, P. W. 3 and P. W. 4 are the relevant witnesses, out of whom P. Ws. 2 and 3 were declared hostile. The mere fact that a witness is declared hostile by the party calling him and allowed to be cross-examined does not make him unreliable so as to exclude his evidence from consideration altogether, and his evidence is to be considered for what it is worth (AIR 1976 SC 202 [LQ/SC/1975/504] ; AIR 1976 SC 294 [LQ/SC/1975/379] ). In other words, evidence of a hostile witness can be accepted in part and it is to be considered in the light of other evidence on record. P. W. 2 (wife of accused shyamapada) in her cross-examination by prosecution stated that Malati and Kalipada also like them went to sleep that night in their room which is contradicted by P. W. 3 (sister of accused Kalipada) who deposed that Malati went to her room though her husband was not there as he was in the verandah with her father. The statements of the above two witnesses were recorded under Section 164 Cr. P. C. by the learned Magistrates (P. W. 17). A statement recorded under Section 164 is not substantive evidence but it can be used either for contradiction or for corroboration (AIR 1970 SC 1305 [LQ/SC/1970/147] ). When police gets the statement of a witness recorded under Section 164 earlier, the police is obviously underthe impression that he may later change his version, and so the evidence of such witness should be scrutinised with caution. When the witness sticks to the statement, he may be accepted as a dependable witness (AIR 1968 SC 1270 [LQ/SC/1968/58] ). In other words, if a witness resiles in evidence from his statement recorded, his statement can be held to be doubtful. In this connection, the decision reported in 88 CWN 990 may be referred to. Here, the above two witnesses having resiled in evidence from their earlier statements under Section 164 Cr. P. C. , no reliance can be placed upon their above testimony. P. W. 4, a neighbour, on hearing a hue and cry at about 4/4. 30 a. m. had been to the house of accused Kalipada who on his query infermed that he and his wife had gone to bed last night after dinner and on getting up when he could not find his wife he searched for her and found that she had committed suicide by hanging and when he (P. W. 4)asked for the place, he took him to a tamarind tree nearby where the dead body was found hanging from a branch at a height of about 8/10 ft. from the ground level. There being no such earlier statement under Section 161 Cr. P. C. on his behalf, as is evinced from his cross-examination, that accused kalipada informed him that he went to bed after dinner along with his wife and after getting up he found his wife missing and thereafter on search he found the dead body of his wife, the said evidence may be excluded from consideration on account of contradiction due to omission on vital point. That apart, the above incriminating circumstances was not put to accused kalipada during his examination under Section 313 Cr. P. C. and so, as he was not afforded an opportunity to submit an explanation to it, the said circumstances can be excluded from a consideration. In this connection, the decision reported in AIR 1979 SC 1566 [LQ/SC/1979/185] may be referred to Therefore, there is virtually no evidence to show that the victim was last found with the above accused Kalipada.

(12) ASSUMING arguendo that the death of the victim was homicidal in nature, let us proceed further to consider the case. In cases where only circumstantial evidences is available, at the outset one normally starts looking for motive an opportunity to commit the crime. If the evidence shows that the accused had a strong enough motive and had the opportunity of committing the crime and the established circumstances of the record considered along with the explanation, if any, of the accused exclude the reasonable possibility of anyone else being the real culprit then the chain of evidence can be considered to be so complete as to show that within all probability the crime must have been committed by the accused and he may safely be convicted on circumstantial evidence (AIR 1972 SC 54 [LQ/SC/1971/466] ). Here, P. W. 1, P. W. 4, P. W. 6 and P. W. 7 are witnesses on the point. According to the evidence of P. W. 1, the deceased Malati was not in good terms with her mother-in-law Haimabati, as male members of the family used to remain outside, her mother-in-law used to deny her food and inflict torture on her as was reported to him by the victim. But he cannot say the exact date or year of Malatis reporting to him. However, there is no allegation against accused,kalipada. P. W. 4 deposed that the deceased did not have good relationship with her husband and members of his family, as Kalipadas mother used to quarrel with her, assault her and deny her food and accused Kalipada also used to assault her, as was informed to him by the victim. It is the evidence of P. W. 6 (cousin brother)that after about 2/3 months of marriage, her husband and mother-in-law started assaulting her every now and then, and that she was even denied food, as was reported to him by her. P. W. 7, another neighbour, stated that sometime after the marriage, Malati used to assaulted by her husband and mother-in-law and she was denied food, as was complained by her to him and he advised her to talk to others. It is his further evidence that on the fateful day, in day-time Maleti had a quarrel with her mother-in-law. So far the above evidence of P. W. 4 is concerned, apart from inconsistency in regard to alleged assault by accused Kalipada with the testimony of P. W. 1, there being no such earlier statement under Section 161 Cr. P. C. on his behalf that Kalipada used to assault his wife or that she was denied food or that she used to report it to him, that part of the evidence in view of contradiction due to omission on vital point cannot be taken into account. Similarly, there is no such earlier statement under Section 161 Cr. P. C. on behalf of P. W. 7 that malati used to be tortured by her husband though the stated about torture by her mother-in-law and as such it is a contradiction due to omission on vital point. The story of torture by accused Kalipada, as deposed by him, is also contradictory to the above evidence of P. W. 1. Therefore, that part of the evidence against accused Kalipada, can be excluded from consideration. As regards P. W. 6 he never lodged any diary with the P. S. over the alleged act of torture nor even informed the matter to anyone which appears to be beyond the normal conduct of a brother, and so over much importance cannot be attached to the above sole testimony of P. W. 6 which is also inconsistent with the evidence of P. W. 1. It is the evidence of P. W. 2 that Malati during her lifetime was a victim of despair and melancholy and they unsuccessfully tried to make her life more interesting. Similar is the testimony of P. W. 3.

(13) THEREFORE, in the absence of cogent and reliable evidence that the victim was last found together with accused Kalipada and for want of sufficient evidence regarding motive for the crime, the prosecution cannot be held to have proved the case against accused Kalipada beyond all reasonable doubt.

(14) IN the premises, the appeal be allowed on contest. The judgment and order of conviction and sentence passed against accused Kalipada by the learned court below in S. T. Case No. 10 of August, 1993 on 26. 05. 1994 be set aside.

(15) ACCUSED Kalipada Bhowmick is found not guilty and he stands acquitted of the charge under Sections 302 and 201/34 I. P. C. , and he be set at liberty at once. The said accused Kalipada be released forthwith from custody.

(16) ALAMATS if any, be disposed of after the period of appeal is over. Let a copy of this judgment along with the L. C. R. be sent down at once to the learned Court below with a direction for communication of the order to the authorities of the Correctional Home concerned for release of the said accused at once.