JUDGMENT : R.N. Misra, J. - This reference. has been made u/s 374 of the Code of Criminal Procedure by the learned Sessions Judge at Baripada for confirmation of the death sentence awarded by him in respect of Debendra 'Tiria. The Criminal Appeal is by the said Debendra who has been convicted u/s 302 read with Section 34 of the Indian Penal Code and sentenced to death. The second accused has also been convicted u/s 302/34 of the Indian Penal Code and sentenced to rigorous imprisonment for life. 2. Appellant Debendra and deceased Kunja were living in the same village as close friends. Gamha Mahanta and sarala were Kunja's parents. For more than a year before the date of occurrence, which is said to be during the night of 29th of January, 1969, a proposal was mooted that Gamha along with his wife and son would shift over to a neighbouring village permanently quitting Debendra's village. Same land which Gamha had in the Debendra's village was accordingly arranged to be sold to p.w. 4 for Rs. 1,500/-. He had paid Rs. 1,100/- out of it and the accused Debendra came forward to undertake payment of the balance amount to deceased Gamha. The sale wail on the 25th of January, 1969. It bad been arranged from before that some land in the new village would be purchased by Gamha, but as the vendor of such land was an aboriginal and the sale in favour of Gamha may not be permissible without permission of the Revenue Authorities, the purchase would be benami in the name of Debendra. Sometime in January of 1969, Kunja transferred movable assets from their house to the house of Debendra including food. stuffs, oat the, goats and other belongings. It was arranged that Gamha, his wife and his son would shift over to the new village of Hatanabeda and for the time being stay in somebody's house and in due course would rasie their own house. According to the prosecution case, it was the practice that when a man left a village in similar circumstance, he was to leave during night when the villagers would not see him. It was, therefore, arranged that in the night of 29th of January, 1969, the family of Gamha would move away from the village. It was further arranged that the two accused persons would escort them out. It was, therefore, arranged that in the night of 29th of January, 1969, the family of Gamha would move away from the village. It was further arranged that the two accused persons would escort them out. It was planned that on their way near a hillock they would offer worship to a deity and sacrifice two chicken. Accordingly they left the village and when they reached the bottom of the hillock, the parents of Kunja stayed behind and Debendra in the company of Kunja proceeded for the purpose of performing Puja, sacrifice. The co-accused was left to look after the old people. Soon after the Puja was offered, Debendra is said to have dealt several blows on the neck of deceased Kunja with M.O. XIII a sharp cutting instrument. Kunja fell down dead at the spot. Debendra. came back to the place where Kunja's parents were sitting and dealt a blow with the same sharp cutting instrument on the head of Gamha. In the poroses of dealing the blows, for some reason the handle of the instrument broke. Debendra. picked up a boulder and crushed the head of Gamha. with it. He directed the co-accused Haladhar to give lathi blows on the head of deceased Sarala. After a lathi blow was given by Haladhar, the lady fell down. Thereupon Debendra is alleged to have picked up another boulder and crushed her head with it. The dead bodies were found a couple of days after the occurrence when some villagers came across them and reported to the Grama Rakshi, who in his turn brought the matter to the notice of the Panchayat Ward Member-p.w. 1. p.w. 1 in the company of others went to the spot, saw the dead bodies and ultimately lodged the report at the local police station (Ext. 1). On 2nd of February, 1969, the Officer-in-charge of the local police station - p.w. 16 - came to the spot and noticed the dead bodies. He, however, could not make the inquests as it was already late in the evening. Inquest was made next morning. Apart from the dead bodies, he found several articles like fishing net, bamboo basket, Hadia Chala, earthen pot, brass metal measure and bell metal utensils etc. scattered around. The dead bodies had not yet been identified. He, therefore, called people from the local village to identify the bodies. Inquest was made next morning. Apart from the dead bodies, he found several articles like fishing net, bamboo basket, Hadia Chala, earthen pot, brass metal measure and bell metal utensils etc. scattered around. The dead bodies had not yet been identified. He, therefore, called people from the local village to identify the bodies. On the 3rd of February, some money was recovered upon search from the house of Debendra Debendra was taken into custody on the 4th and while in custody gave recovery u/s 27 of the Evidence Act of a Chaddar said to be of Kunja. M.O. XII. On the following day, he also gave recovery of the sharp cutting instrument - M.O. XIII. During investigation, later on the house of a neighbour was searched and money was found from inside a basket of paddy. The co-accused was arrested near the Bokaro Steel Plant and from him some currency notes were also seized On 26th of February, 1969, that accused made a confessional statement, wherein he implicated himself as also Debendra. Upon the clue given in such confessional statement further investigation was conducted which led to submission of charge sheet and ultimate committal of the two accused persons to the Court of Session for their trial for the offences punishable u/s 302 read with Section 34 of the Indian Penal Code. 3. Admittedly there are no eye-witnesses to the occurrence and the entire evidence upon which the prosecution relies are circumstantial evidence along with the confessional statements of accused Haladhar Debendra. had also made a statement u/s 164 of the Code of Criminal Procedure, but the prosecution has not relied upon it and therefore, no steps have been taken to exhibit it. Even before us learned Government Advocate does not refer to it. The learned Sessions Judge in paragraph 27 of his judgment has put together all the circumstances in the following way: (1) The accused Debendra and deceased Kunja were sworn friends and for that reason he was able to gain the confidence of the parents of the latter. (2) He prevailed upon the deceased persons to sell their lands at Purunia and to buy land at Hatanabeda. (3) He took initiative in deceased Gamha selling away his land in village Purunia. (2) He prevailed upon the deceased persons to sell their lands at Purunia and to buy land at Hatanabeda. (3) He took initiative in deceased Gamha selling away his land in village Purunia. The accused Debendra did not make any sincere effort to arrange any land at Hatanabeda as established from the fact that he showed some land to the p.w. 6 but never allowed him to contract the owners. (4) He knew that the deceased Gamha had received Rs. 1,100/- towards consideration and that he came forward to purchase the land in his name at Hatanabeda. (5) He had knowledge that the deceased persons were to proceed to village Hatanabeda on a particular day and in the afternoon that day he was found with the deceased Kunja. (6) Before the deceased persons proceeded be kept the bullocks, goats, paddy and other articles in his house. (7) When the p.w. 4 offered to pay him the balance of Rs. 400/- after the alleged occurrence, he did not show any interest. (8) The several currency notes were found to have been concealed in the paddy pudas which were seized from his house. (9) He himself gave recovery of the M.O. XIII. (10) The accused himself gave recovery of the weapon of offence - M.O. XIII. (11) The confession of the co-accused lends assurance that the above circumstances are consistent with the guilt of the accused. 4. As was indicated by their Lordships of the Supreme Court in the case of Awadhi Yadav and Another Vs. The State of Bihar before a person can be convicted on the strength of circumstantial evidence, the circumstances in question must be satisfactorily established and proved circumstances must bring home the offence to the accused beyond reasonable doubt. If those circumstances or some of them can be explained by any other reasonable hypothesis, then the accused must have the benefit of that hypothesis. But in assessing the evidence imaginary possibilities have no place. What is to be considered are ordinary human possibilities, Keeping this principle in view if the circumstances which have been catalogued above are reviewed, many would indeed turn out not to be at all incriminating. Admittedly Debendra and Kunja were sworn friends. Therefore, Debendra's arranging for the shifting of Kunja and his parents from one village to another, keeping the animals, food-stuffs etc. Admittedly Debendra and Kunja were sworn friends. Therefore, Debendra's arranging for the shifting of Kunja and his parents from one village to another, keeping the animals, food-stuffs etc. In his own house until Gamha has his own house in the new village agreeing to get good lands purchased for Kunja and offering to work as the benamidar to obviate the difficulties of law, are circumstances which really do not give any particular support to the prosecution case. In view of the relationship which Debendra bad with Kunja, his knowledge of eleven hundred rupees having been received by Gamha from p.w. 4 towards sale price is again not a very material feature In the facts of the case, Debendra must be imputed with the knowledge of the date of shifting. I do not see any justification for the learned trial Judge to have drawn any inference against the accused persons on account of Debendra's refusing to receive the balance amount of Rs. 400/-. If in fact Debendra had set a trap to misappropriate all the properties of Gamha, there was no justification for him not to receive the balance amount of Rs. 400/- out of the sale price when p.w. 4 offered the amount. In fact this is a circumstance in support of the accused persons and the learned trial Judge has used it without any justification in support of the prosecution case. The recovery of currency notes from paddy pudas by itself is not at all an incriminating circumstance. In fact in our country-side this is not an uncommon practice. As such items 1 to 8 of the circumstances referred to in para 27 of the judgment by the learned trial Judge are really of no consequence. 5. We shall now deal with the remaining circumstances. They are the Appellant Debendra's giving recovery of M.Os. XII and XIII and the confessional statement of the co-accused Haladhar if the recovery is accepted, it certainly is very implicating and ordinarily may be sufficient for sustaining the conviction. Recoveries of M.Os. XII and XIII are under seizure lists - Exts. 3 and 4. The chaddar (M.O. XII) was recovered at 11. 30 P.M. on 4.21909 and the place of recovery is a jungle near Raiburu hill as shown in Ext. 3. The description of the chaddar given there is that it was a chaddar with checks and was said to be blood stained. 3 and 4. The chaddar (M.O. XII) was recovered at 11. 30 P.M. on 4.21909 and the place of recovery is a jungle near Raiburu hill as shown in Ext. 3. The description of the chaddar given there is that it was a chaddar with checks and was said to be blood stained. The seizure witnesses were one Akshaya Kumar Raut (not examined) and Hrushikesh Barik (p.w. 5). The M.O. XII which is before the Court Is not a chaddar with checks. On the other hand, it is a blue chaddar with flowers on the border. When M.O. XII is looked at, the description in Ext. 3 does not at all fit in. p.w. 8 has not given boy explanation as to why there was such discrepancy. p.w. 16, the investigating officer who seized the article in cross-examination says: M.O. XII has flower designs printed border. There is no check designs in the M.O. XII. I have not mentioned the colour of the chaddar seized under Ext. 3. I seized M.O. XII at 11. 30 P.M... The learned trial Judge has tried to explain away the difference in the description of the chaddar. But we do not see any justification in the explanation. p.w. 8 is the only witness who has been examined in this case and there is no explanation available in this case as to why the other witness to the seizure was not examined. Normally examination of one witness to seizure would have been sufficient. Criticism, however, is offered by the counsel for the accused that p.w. 8 seems to be a common witness for all seizures, for instance under Exts. 2, 3, 4, 5, which have been carried on at different times, on different dates and at different places. Keeping in view of the time of seizure, the discrepancy in the description of the article and non-examination of the, other seizure witness, a doubt is cast in our mind about the evidentiary value of this feature. The M.O. XIII was seized at 9.00 A.M. on 5.2.1969 from the same place from where the M.O. XII was seized. No justification is indicated as to why recovery had not been made at the same point of time. Recovery of M.O. XII is by one police officer and recovery of M.O. XIII is by another. The M.O. XIII was seized at 9.00 A.M. on 5.2.1969 from the same place from where the M.O. XII was seized. No justification is indicated as to why recovery had not been made at the same point of time. Recovery of M.O. XII is by one police officer and recovery of M.O. XIII is by another. It is indeed not known as to whether at the same time both the officers were in charge of the investigation of this case. Doubt is cast in our mind about the recovery of these two material objects on account of another circumstance. According to the inquest report, the inquest was made in the morning hours of 3.2.1969 and the dead body challans show that the corpses were removed from the village at about 1.00 P.M. that day. p.w. 11 is the daughter of deceased Gamha and sister of deceased Kunja. In her cross examination she has stated: ... On the day I heard about the death of my parents and brother. I had been to their village and also visited the spot where their dead bodies were lying. I came back to my husband's village on the following morning. Before I left for my husband's house's I saw M.O. XII and XIII in the hands of police Babu. I saw these two articles in the hands of a police officer on the day I reached the village of my parents. The evidence of this witness clearly goes to show that she saw these two materials objects on the day she came to the village of her parents. She must have come to the village at a time before the dead bodies were removed from the spot where they were lying. Learned Government Advocate asks us to read the evidence in her cross-examination to mean that she visited the spot where the dead bodies had previously been lying before their removal. There is no indication in the evidence that she was shown the exact places where the dead bodies were lying. We, therefore, read the evidence to be that she actually saw the dead bodies lying at the spot. Learned Government Advocate concedes that the evidence in cross-examination casts a doubt and he admits that it was the duty of the prosecution to clarify the statement made by this witness by re-examination. That has not been done. We, therefore, read the evidence to be that she actually saw the dead bodies lying at the spot. Learned Government Advocate concedes that the evidence in cross-examination casts a doubt and he admits that it was the duty of the prosecution to clarify the statement made by this witness by re-examination. That has not been done. We think the evidence of this witness thus meant that she had been to the village sometime before 3rd of February, 1969, and had seen these two material objects in the hands of the police then. The, recoveries purport to be on 4th and 5th of February, 1969, respectively. Therefore, if these articles were already in the hands of the police at a time before they were recovered, the alleged recovery u/s 27 of the Evidence Act loses importance and it cannot be used as circumstances against the accused. We accordingly hold that no importance can be given to the recoveries of M.Os. XII and XIII by way of discovery given by accused Debendra. 6. The only other circumstances that remains for consideration is the confession of the co-accused. On a bare reading of the confession, we are satisfied that it is exculpatory. Haladhar tries to put the entire same on Debendra and in fact while owning a single blow to himself to have been given upon Kunja's mother, he explains it by saying that he gave the blow only when Debendra threatened to kill him if he did not give the blow. Law is well settled that such an exculpatory confession cannot be used against a co-accused. We shall, therefore, keep away the confession from consideration while dealing with the case of Debendra. Learned Government Advocate referred to us a material which the learned trial Judge bad not taken into account. It is the finding of blood in a Dhoti said to have been worn by Debendra. Upon examination of the record, we are satisfied that there is no material to show that it was the Dhoti of Debendra. There is no seizure nor has the investigating officer indicated anything relating to the Dhoti. In the circumstances, Such a fact cannot be taken notice of against the accused. Therefore we must come to the conclusion that the prosecution has failed to establish its case against Debendra. 7. There is no seizure nor has the investigating officer indicated anything relating to the Dhoti. In the circumstances, Such a fact cannot be taken notice of against the accused. Therefore we must come to the conclusion that the prosecution has failed to establish its case against Debendra. 7. If the case had been established, we bad no doubts in our mind that the only sentence which could be adequate was the sentence of death. It is a case of treachery. Friendship has been misused and according to the prosecution case, a plan bad been hatched to take away the lives of not only the friend, but of the members of the entire family of that friend, so that the belongings of the family may be misappropriated. But as we have not been able to find for the prosecution, the only conclusion 'Which we can reach is that Debendra must be entitled to acquittal. 8. We accordingly discharge the reference and direct that Debendra Tiria shall be Bet at liberty forthwith. His appeal is allowed. B.K. Ray, J. 9. I agree.