JUDGMENT : G.K. Misra, J. - Initially four accused stood trial. Satyanath Patra and Madhu Patra were acquitted by the learned Sessions Judge. The Appellant has been convicted u/s 302, Indian Penal Code, and sentenced to R.I. for life. Gurubari Bewa was convicted under Sections 201 and 202, Indian Penal Code, and sentenced to R.I. for one year and six months respectively under those sections. Both the sentences were to run concurrently. Gurubari has filed no appeal. This appeal is, therefore, confined to the case of Dandun alias Bijaya Naik. 2. The prosecution case may be stated in short: The prosecution case is that the deceased was murdered in the night of 18th March, 1966, in the house of Gurubari Bewa by Appellant Bijay Naik. It is alleged that Bijay Naik went to the house of Gurubari where the deceased was sitting on the verandah. The Appellant asked for some tobacco which Gurubari supplied. Thereafter the Appellant callght hold of the bands of Gurubari. She protested. The deceased also came to her support and asked the Appellant as to why he callght hold of Gurubari. Thereafter both the Appellant and the deceased left Gurubari's house. The deceased was going ahead. The Appellant gave two strokes on the head of the deceased. He dragged him to a nearby field. The body of the deceased was floating in a tank. It was discovered on 24th of March, 1966. Post mortem examination was held and it was found to be a case of murder. 3. The plea of Gurubari was that the Appellant killed the deceased and it is under fear of threat that she covered the blood in her Court yard with cow-dung. 4. The Appellant denied the occurrence. 5. The learned Sessions Judge held that death was homicidal and the Appellant killed the deceased and Gurubari tried to conceal the evidence of murder. The case of Gurubari would not be dealt with as she has filed no appeal. 6. The finding that the death was homicidal is not assailed before us. The doctor, p.w. 7, held the post mortem examination. He found two lacerated injuries, one behind the left ear and the other on the right cheek. On dissection, the injury was found to have extended to chest, and it was sufficient, in ordinary course of nature, to cause death. The doctor, p.w. 7, held the post mortem examination. He found two lacerated injuries, one behind the left ear and the other on the right cheek. On dissection, the injury was found to have extended to chest, and it was sufficient, in ordinary course of nature, to cause death. He also found an incised wound at the root of the penis. According to him; all the injuries were ante mortem. On the doctor's evidence there cannot be any escape from the conclusion that the death was homicidal. 7. The only other question for consideration is whether the Appellant was responsible for death of the deceased. P.Ws. 3 and 4 claim to be eye-witnesses to the occurrence. The learned Sessions Judge elaborately discussed this evidence and held that they are unreliable. He placed reliance on the statement of Allah Dei, delighter of Gurubarj, made in the committing Court. The learned Sessions Judge held that despite best efforts on the part of the police her whereabouts could not be traced out. He accordingly admitted the statement made by her in the committing Court u/s 33 of the Evidence Act. In our view, the conclusion of the learned Judge is contrary to the materials on record. The sessions case was fixed to 11.9.1967 for trial. Even on the 10th of September 1967, just a day before, the summons meant to be served on Allah Dei was returned unserved with the report that on account of floods the village where she used to reside could not e approached. It is some what remarkable that this place of evidence escaped the notice of the learned Judge. We therefore cannot agree with him that Allah Dei could not be found to be examined as a witness in the Sessions Court. One of the basic postulates for the applicability of Section 33 of the Evidence Act is that the witness must either be dead, or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable. None of these conditions applies to this case. Merely because the summons could not be served, a finding cannot be recorded that the witness was not found. None of these conditions applies to this case. Merely because the summons could not be served, a finding cannot be recorded that the witness was not found. The learned Sessions Judge wrongly admitted the statement of Allah Dei made in the committing Court. We accordingly rule it out of our consideration. 8. If this piece of evidence is ruled out, the residual evidence constitutes only the recoveries alleged to have been given by the Appellant. It is said that while in police custody, the Appellant gave recovery of a cloth, MO. V worn by the deceased from the paddy field of p.w. 2. He similarly gave recovery of the Tangi, MO. III, and its handle MO. IV, from Banadunguri hillock. The Appellant, while examined u/s 342, Code of Criminal Procedure, was given a reasonable opportunity to explain there discoveries, admissible u/s 27 of the Evidence Act. The reply was a mere denial. We accordingly hold that the discoveries given by the Appellant, as presented by the prosecution while the Appellant was in police custody, are pieces of evidence admissible u/s 27 of the Evidence Act. 9. The aforesaid find, however, does not advance the prosecution case. Merely on the basis of discoveries of incriminating articles containing human blood, a finding cannot be recorded that it is the Appellant who killed the deceased. The discoveries may be equally consistent with the knowledge of the Appellant about concealment of those articles at particular place's from where they were discovered. They are very strong pieces of incriminating circumstances to arouse the suspicion that the accused-Appellant might have been the author he murder. But it is well-known that mere suspicion, however, grave, cannot take the place of legal proof. 10. Taking the entise evidence into consideration, it is difficult for us to say that the Appellant committed the murder. In the result, therefore, the judgment under appeal and the conviction and the sentence passed on the Appellant are set aside and the appeal is allowed. The Appellant Bijaya Naik be set at liberty forthwith. Ray, J. 11. I agree. Final Result : Allowed