JUDGMENT : Misra, J. - This is a reference u/s 374, Code of Criminal Procedure by the learned Additional Sessions Judge, Cuttack-Dhenkanal for confirmation of the sentence of death passed by him upon one Dibakar Sadangi who has been convicted by him u/s 302 I.P.C. The accused has also filed an appeal being Criminal Appeal No. 5 of 1955 against his conviction and sentence. The reference and the appeal were heard together by us on the 14th of February, 1955. After hearing learned Counsel for the Appellant, and the learned Counsel on behalf of the State, we came to the conclusion that the conviction of and the sentence passed upon the Appellant could not be sustained. Accordingly, we passed an order on that date setting aside the conviction and sentence of the Appellant and directing that he be set at liberty forthwith. We now proceed to give our detailed reasons for the said order. 2. The accused-Appellant is a Brahmin of village Pahanga in police station Jagatsingpur. The prosecution case is that he had a mistress Malati Devi. The charge against him was that he caused the death of Malati with a Katari on the night of Wednesday, the 28th of April, 1954, at a place near the village Juanga. According to the prosecution case, the accused had no lands. He was making his living by begging, Both he and his mistress Malati were begging in the neighbouring district of Mayurbhanj. There, it is said, the accused came in contact with a young woman Bishnupriya Devi, P.W. 1, who it seems had been decided by her previous husband. She had two sons through her previous husband. The accused brought P.W. 1. with him, and P.W. 1 sold whatever belongings she had in the district of Mayurbhanj, and after P.W. 1 was brought, the accused put up a hut in village Pahanga and began to live there. This took place sometime in January, 1954. The prosecution case is that ever since the advent of P.W. 1 into the house, the accused was ill-treating Malati, as a result of which she was leaving the house off and on, and that two days prior to the occurrence, he had beaten her and brought her back to the house. This took place sometime in January, 1954. The prosecution case is that ever since the advent of P.W. 1 into the house, the accused was ill-treating Malati, as a result of which she was leaving the house off and on, and that two days prior to the occurrence, he had beaten her and brought her back to the house. On the date before the occurrence, that is, on the 27th of April, 1954, he had sent Malati Land the elder son of P. W. 1, Dinabandhu (P. W. 3), to village Tribunal which lies on the other side of the river Devi to, fetch paddy from a bhag-tenant Alekh (P. W. 4). Later on, he himself left for Tumba. All of them remained at Tumba during the night. The next day the accused sent the boy, P. W. 3 ahead with some mangoes and other articles in a tin and in the afternoon he anti Malati started for their village with a basket of paddy and some mangoes. It is said that sometime after the midnight the accused alone reached his house, and P. W. 1 heard a sound of some substance hitting a tin. P. W. 1 opened the door and enquired about Malati but the accused could not give any satisfactory explanation. In the morning, it is said, P. W. 1 bound the Katari, M. O. I, with blood-stains under a tin and a red-bordered Saree worn by Malati, the deceased, M. O. II, bearing blood-stains. This Saree, it is said, is kept in an Atika in the house. She also found that the Dhoti, M. O. II, and M. O. III which had been worn by the accused and had been cast off by him in the night after his return from Tumba, had blood-stains but she had not the courage to ask the accused about it. She then went with the paddy which the accused had brought for being husked to the house of Gopi Sadangi, an uncle of the accused and while she was there, she heard that the accused had been arrested. The dead body which was lying in a field near the village Juanga was first discovered by Pankaj Charan Lenka (P. W. 9) of that village. He noticed some vultures near about the place, and that attached his attention, and on going there he found the dead body. The dead body which was lying in a field near the village Juanga was first discovered by Pankaj Charan Lenka (P. W. 9) of that village. He noticed some vultures near about the place, and that attached his attention, and on going there he found the dead body. He showed this to the other villagers one of whom is P. W. 8. The residents of the neighbouring villages including Pahanga arrived there and identified the dead body to be that of Malati. The Choukidar Chaitan (P. W. 10) went and informed the Sarpanch of Pahanga (P. W. 7), who gave a letter, Ext. 9, to him to be handed over at the police station at Jagatsingpur.... He went to the police station, but as the officer-in-charge was absent the junior Sub-Inspector (P. W. 14) drew up the F.I.R. at 3-30 p.m. on 29-4-54. It may be noted that the village Juanga is at a distance of 15 miles fro the police station. He left for the spot at 4 p.m. and reached the place at 9.30 p.m. He held the inquest at 10 p. m. with the help of a petromax light. The body had no wearing cloth. A torn dirty cloth was lying covering the legs. He then made arrangement for a cart, but no cart was available that night. He then went to Pahanga being half a mile from Juanga. According to him he seized the M. Os. I, II, III and the Tokei (basket), M. O. V, which was produced by P.W. 1 at 6 a.m., and he seized them at 7 a.m. The senior Sub-Inspector arrived there at 11 a.m., and P. W. 14 thereafter made over the investigation to him. After investigation, the senior Sub-Inspector submitted a charge-sheet, as a result of which the accused was put upon trial. 3. From the facts stated above, it is clear that there was no eye-witness to the occurrence. The case against the accused rests entirely upon circumstantial evidence. The circumstantial evidence against the accused had been detailed by the learned Additional Sessions Judge as follows: (1) The accused has betrayed signs of dissatisfaction with Malati after the advent of Bishnupriya. (2) That he initially did not intend to go to Tumba, but he left subsequently on a second thought. (3) That he sent away the boy Dinabandhu in advance in the forenoon with a definite purpose. (2) That he initially did not intend to go to Tumba, but he left subsequently on a second thought. (3) That he sent away the boy Dinabandhu in advance in the forenoon with a definite purpose. (4) That he left Tumba with the deceased rather late, and returned home alone past midnight, and could not satisfactorily explain the absence of the deceased to Bishnupriya. (5) That the next morning Bishnupriya found the Katari (M. O. 1) with blood-stains, the Saree of the deceased (M. O. II) with blood-stains half concealed in the Attika, and also the Dhoti which the accused had worn (M. O. III) having blood-stains. (6) The basket also on examination was found to have blood-stains on it. The question for consideration is whether the circumstantial evidence in this case is such as to conclusively point to the guilt of the accused. The law on the subject is perfectly clear. The circumstantial evidence must be consistent and consistent only with the guilt of the accused is if the evidence is consistent with any other rational explanation, then there is an element of doubt of which the accused must be given the benefit. Where the evidence against the accused is circumstantial in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt, see Hem Chandra Haldar Vs. Emperor, Basangouda Yamanappa (1940) 43 Bom. P.L.R. 144 Hassan Din (1942) 44 P.L.R. 554 and AIR 1943 56 (Lahore) . It is admitted that the Katari, M. O. I had no blood-stains when it was seized by the Sub. Inspector. We have it only in the evidence of P. W. 10 that she saw blood-stains on it when she first found it on the 29th morning. M. O. II and M. O. III were sent to the Chemical Examiner, but the Serologist reported that the blood on the basket splints was found to be too small for serological test, and blood on M. Os. II, III and IV was found to be so disintergrated that their origin could not be determined. M. O. II and M. O. III were sent to the Chemical Examiner, but the Serologist reported that the blood on the basket splints was found to be too small for serological test, and blood on M. Os. II, III and IV was found to be so disintergrated that their origin could not be determined. The learned Additional Sessions Judge, however, concludes "Though the human origin of the blood could not be proved, in the circumstances of this case, I have no reason to doubt that the blood found thereon belonged to the deceased who was killed thus bringing home the guilt to the accused". This is a weeping remark for which we do not find any justification in the evidence. 4. To begin with the seizure of the M. Os. is shrouded in mystery. The method and manner of the production of the articles gives rise to a suspicion that P. W. 1 herself may have had some hand, or may have been in some way connected with the commission of the offence, and that she was trying to save her own skin by creating evidence against the present accused. According to P. W. 14 they were seized on the morning of the 30th, when he reached Pahanga, and examined Bishnupriya at 5-30 A.M. After examining her he seized the M. Os. after inspection at 7 a.m. The seizure lists, Exts. I, I/A, I/B, also show that they were seized on the 30th April, 1954, at 7 a.m. There were two witnesses to the seizure list, Ext. 1, which is the seizure list in respect of the Katari, M. O. I. Bijayaram Misra one of the witnesses, has not been examined at all. The other witness, Pravakar Naik is P. W. 6. His evidence is that he went to the spot (the place where the dead body was found). The corpse was then about to be tied and despatched. Then he returned back. According to his evidence by the time the Sub-Inspector reached the village it was evening. He examined P. W. 1 and in course of the examination she was producing the M. Os. This evidence would show that the seizure took place in the evening of the 29th, whereas the positive evidence of the Sub-Inspector is that he reached Pahanga in the early hours of the 30th and seized the articles at 7 a.m. 5. He examined P. W. 1 and in course of the examination she was producing the M. Os. This evidence would show that the seizure took place in the evening of the 29th, whereas the positive evidence of the Sub-Inspector is that he reached Pahanga in the early hours of the 30th and seized the articles at 7 a.m. 5. The evidence relating to seizure given by the junior sub-Inspector is not only inconsistent with the evidence of P. W. 6, but both the versions relating to seizure of the material objects are inconsistent with the evidence of P. W. 13 who is a Chowkidar No. 1717 of Pahanga. He deposed that at the Minor School the Head Master Lokanath Swain told him that a murder took place in Mathasahi that Dibakar was being suspected of having murdered his wife and that on hearing the same he went to the house of the accused and found P. W. 1 at home and enquired of her also. He also deposed that thereafter she brought out and showed him the Katari and a blood-stained cloth and that he took custody of the same and kept them in that house. He also stated to a question put by Court that when he went to the house of the accused, Sankar Malik, Daffadar and some others numbering over 50 were present and at that time the Katari M. O. 1 had on it blood-stains is that P.W. 1 also showed two cloths and that they asked her to keep them in safe custody till the is arrival. To a question put by Court, he gave a categorical reply to the effect. No we kept them with us. Daffadar kept them with him. He brought them to the place of occurrence. He kept them then with him till the arrival of the I. O. This categorical statement of the chowkidar P. W. 13 gives a completely different version of the custody of the material objects. He definitely states that they were with the Daffadar from the morning 9 a.m. till the arrival of the. This is quite a different version of the seizure of the material objects. The prosecution did not choose to examine this Daffadar. He definitely states that they were with the Daffadar from the morning 9 a.m. till the arrival of the. This is quite a different version of the seizure of the material objects. The prosecution did not choose to examine this Daffadar. Even the Chowkidar P. W. 13 who, according to this evidence, was the first man to come to know of the alleged offence and who went to the house of the deceased was not examined by the prosecution in the committing Court, but was only examined in the Sessions Court at the instance of the Court. But as observed by the learned Additional Sessions Judge, for reasons best known to the prosecution, it wanted to suppress these facts and attempted to show that the material objects were actually recovered as and when produced by P. W. 1 during her examination by the I. O. All these different versions relating to e seizure of the material objects in a case in which the guilt or otherwise of the accused depended upon purely the circumstantial evidence, lead me to think that there was no fair investigation in this case. 6. With regard to the Katari, the learned Additional Sessions Judge says that the accused himself admits that the Katari was brought from Mayurbhanj and belongs to him. This is a complete misapprehension of the statement of the accused. What the accused said was that she (Bishnupriya) brought M.O. I from Mayurbhanj, when she came with him in March last. This is not tantamount to saying that the Katari belongs to him. That is the most incriminating piece of evidence in the case. Therefore, the ownership of M. O. I. must be established by cogent evidence. He nowhere admits that the Katari belongs to him. Moreover, we find from the evidence of P. W. 1 that when the accused left for Tumba on Tuesday afternoon, he took with him a torn cloth, and a Chaddar. That is her positive evidence in Court. There is no evidence how and at what point of time, the accused took the Katari with him when he left for Tumba. But apart from anything else, when the Katari does not contain any blood-marks, it cannot be used as a piece of incriminating evidence against the accused. 7. That is her positive evidence in Court. There is no evidence how and at what point of time, the accused took the Katari with him when he left for Tumba. But apart from anything else, when the Katari does not contain any blood-marks, it cannot be used as a piece of incriminating evidence against the accused. 7. The medical evidence shows that the deceased had six incised injuries, three of which were 4" long and one was 3" long and the other 2". No doubt the doctor opines that the injuries could be caused by the Katari, M. O. I. We have ourselves examined the Katari M. O. I. The edge of the katari is not straight. It is somewhat bent at the middle. The injury report shows that the depth of the injuries was uniform. We are of opinion that a Katari like the M. O. I could not cause injuries of uniform depth as the edge of it was bent at the middle. Therefore, we are not prepared to accept the evidence that the injuries could have been caused by the Katari, M. O. I. 8. With regard to M. O. II, which is the Saree said to have been worn by the deceased when she left for Tumba, we are of opinion that it is difficult to believe that the accused after having killed the woman would have the patience to make her naked and take away the Saree, and bring it to his own house and keep evidence of his own guilt in the house. This is wholly inconsistent with natural human conduct. The Saree is said to have contained certain blood-marks at about ten places. We have ourselves examined the Saree, M. O. II, and found that the blood-marks were too small in size. If the deceased was wearing the Saree at the time when this brutal assault was committed upon her, the whole of the Saree would have been smeared with blood. The medical evidence discloses the following: (1) "An incised wound 4" X 2" X I" on the front of the neck below the hyed-bone. All the muscles and vessels were cut. Trachia and acsophagus were cut. (2) An incised wound 3" X I" X I" on the right side of the neck. The common curolid artery and external jugular vein were cut. All the muscles and vessels were cut. Trachia and acsophagus were cut. (2) An incised wound 3" X I" X I" on the right side of the neck. The common curolid artery and external jugular vein were cut. (3) Incised wound 4" X 2" X 1" on the right scapular resion. (4) Incised wound 1" X ?" X ?" on the right palm betweep the middle and dug finger. (5) Incised wound 4" X ?'' X ?" on the outer side of the right foot below the ankle joint. (6) Incised wound 2" X ?" X 1" on the centre of the right side of the abdomen, through which a portion of intestine was protruding. But no injury to it was noticed. If the deceased had received so many incised wounds at different parts of the body beginning from the head right upto the ankle-joint and also in the abdomen, the whole of the Saree would have been soaked with blood. That "there was profuse bleeding is proved by the dimensions of the blood patches found on the earth near the deadbody. P. W. 14 says that the area of the first blood-spot was 14" X 12" the second was 36" X 18", and the third was 18" X 18". It is impossible to think that the deceased was wearing the Saree, M. O. II, when she received these injuries. 9. The Dhoti, M. O. III, is of course admitted by the accused to be his Dhoti. The alleged blood-marks in the Dhoti were too small when we noticed them, and it has not been established that they were human blood, and there is no reliable evidence that the accused was wearing the Dholi when he left for Tumba. The only other circumstance which may be said to exist against the accused is that he left Tumba along with the deceased. That is the evidence of P. W. 4. He says that on the 28th morning he gave the accused paddy and mangoes. He also gave the accused and the deceased rice. They cooked and took meal and left the village at 4-30 p.m. In cross-examination he, however, says that he ha not seen when they cooked their food. He admits that the accused' and the deceased had visited him a number of times but only in the last visit they were not having unity. They cooked and took meal and left the village at 4-30 p.m. In cross-examination he, however, says that he ha not seen when they cooked their food. He admits that the accused' and the deceased had visited him a number of times but only in the last visit they were not having unity. The accused in his examination has offered an explanation which is as follows It is true, we went to Tumba, and the next day I sent Dinabandhu ahead and I and deceased started in the afternoon at 4 p.m. At Tumba alone she left to see her son Budhi residing at Kalara, a mile to the west of Tumba on the same side of Devi river. I reached home at 8 p.m." When the accused has given an explanation, the truth of which was capable of being checked by further evidence on behalf of the prosecution, and when the prosecution has not cared to give that evidence, it cannot be said that the fact that the accused and the deceased were seen together for the last time, can be taken as a circumstance against the accused. In order to come to Pahanga from Tumba one has to cross the river Devi. P. W. 3 Dinabandhu, the son of P. W. 1 says that there was neck-deep water in the river, and he had to cross the river by a boat. If the accused and the deceased had come from Tumba together towards Juanga they must have crossed the river by a boat, P. W. 14 who started the investigation says that he did not examine the boatmen who ferry the river. "Rama Babu (the investigating officer) examined the Ghat-men", he said. So the prosecution were alive to this aspect of the case and the Investigating Officer acutally examined the boatmen. Their evidence would have thrown a good deal of light on the question. But none of the boatmen has been examined in the case. Therefore, in my opinion, the circumstance that the accused and the deceased were seen together at Tumba at about 4 p.m. for the last time loses much of its force. 10. I have examined all the circumstances relied upon by the learned Additional Sessions Judge. In my opinion, none of those circumstances either taken individually or the cumulative effect of them is sufficient to bring home the guilt to the accused. 11. 10. I have examined all the circumstances relied upon by the learned Additional Sessions Judge. In my opinion, none of those circumstances either taken individually or the cumulative effect of them is sufficient to bring home the guilt to the accused. 11. Apparently no motive is suggested by the prosecution as to why the accused should have committed this murder. The only circumstance referred to by the learned Additional Sessions Judge and alleged to have been proved by P. W. 5 is that the accused of late had been showing signs of dissatisfaction with the deceased, and that he had beaten her two to three days prior to her death. P. W. 5 however does not give any reason as to why the accused assaulted her and it is difficult to accept his evidence that all of a sudden the accused for no reason whatsoever took to his head to assault the deceased, and dragged her back to the house. The accused in his examination says that the deceased was a 'Pagal' and also a woman of loose morals. I am not satisfied that the prosecution has been able to prove satisfactorily that the story of previous assault is true. 12. The trial of this case has disclosed a very serious defect which should be noted by the learned Additional Sessions Judge. In a criminal trial, and particularly in the trial of a murder case, it is of the utmost importance that the prosecution would examine the investigating Officer. The absence of the Investigating Officer from the witness-box, places the accused sometimes at a great disadvantage for he may not bring out many facts on record which might go in support of his defence. There are cases, for example, the case of Niru Bhagat v. The king Emperor ILR 1 Pat. 630 in which the High Court has set aside the conviction mainly on the ground that the investigating Officer was not examined, and the non-examination resulted in great prejudice to the accused. In this case the investigation was conducted by Rama Babu, and after completion of the investigation, he submitted the charge-sheet. The learned Additional Sessions Judge says in his judgment that the Investigating Officer could not be examined as he was an in-patient in the -hospital. We were informed that he was an in-patient in the General Hospital at Cuttack. In this case the investigation was conducted by Rama Babu, and after completion of the investigation, he submitted the charge-sheet. The learned Additional Sessions Judge says in his judgment that the Investigating Officer could not be examined as he was an in-patient in the -hospital. We were informed that he was an in-patient in the General Hospital at Cuttack. There is no reason why the Additional Sessions Judge could not have examined him on commission, if he was not in a position to come to Court. The mere fact that the Investigating Officer was will is not in our opinion, sufficient ground for his non-examination. If necessary, the hearing of the case could have been adjourned, for such time as would have enabled the investigating Officer to come and give his evidence. Had he been examined, the Court would have been in a position to know whether he had recorded the statements of the boatmen, and if the prosecution had withheld the boatment under those circumstances, a strong inference would be drawn against the prosecution and in favour of the accused. Courts trying such important cases should always insist on the examination of the Investigating Officer, for, as I have already said, his evidence is of great assistance to the court and also to the accused. 13. For the reasons stated above, we held in our order dated 14-2-55 that the conviction of the Appellant u/s 302, I.P.C. and the sentence of death passed upon him could not be sustained. Accordingly we discharged the reference and set aside his conviction and sentence and acquitted him. Rao, J. 14. I entirely agree with the reasons and remarks given by my learned brother. 15. Conviction set aside.