JUDGMENT : J.K. Mohanty, J. - The accused-Appellant was charged u/s 302, Indian Penal Code, for having committed murder of one Guru Charan Jena, a boy aged about 10 years, on 18-8-1972. He was tried in the Court of the Additional Sessions Judge, Balasore, who convicted him of the charge and sentenced him to undergo R.I. for life. The accused-Appellant has preferred this appeal against the order of his conviction and sentence. 2. During the course of hearing of this appeal, as it transpired that the accused-Appellant had been convicted earlier u/s 302, Indian Penal Code on a charge of murder and while undergoing the sentence of imprisonment for life he had been released on parole when he committed the present offence of murder, this Court by order dated 18-8-1980 issued notice to the Appellant to show cause as to why the sentence of imprisonment I for life imposed by the trial Judge should not be enhanced to the sentence of death. 3. The prosecution case is that the accused-Appellant was looking after the properties of Rahasmani (widow of his brother Chaturbhuj). Rahasmani had a son named Guru Charan (deceased) and two daughters namely Archana and Joehhna. The accused was also looking after the properties of Sailabala (P.W. 4), widow of his another brother Kulamani. He had taken deeds of power of attorney from both Rahasrnani and Sailabala for the purpose. The accused was earlier convicted in a case of murder and after serving out his sentence was staying at Bhadrak and had married the daughter of Saradamani (P.W. 13) As Rahasmani and her children were unable to maintain themselves, the accused induced Rahasmani to leave their village Aradapali and to come and stay with him at Bhadrak so that she may open a tea shop for their Giving. At the instance of the accused on 11.8.1972 Rahasmani left the village with her three children. She was seen at Kendrapara on the very same day by one Krushna Sethi (P.W. 22). The accused had instructed Rahasmani not to disclose about her going to Bhadrak and to keep it a secret. In spite of that she told this fact to some of the villagers. It is alleged by the prosecution that the accused, instead of taking Rahasmani and her children to Bhadrak, took them to Rupsa. The accused had instructed Rahasmani not to disclose about her going to Bhadrak and to keep it a secret. In spite of that she told this fact to some of the villagers. It is alleged by the prosecution that the accused, instead of taking Rahasmani and her children to Bhadrak, took them to Rupsa. On the date of occurrence the accused was found with the two girls and the boy in a hotel belonging to one Bhima Panda of Rupsa. On that day after taking food in the hotel be left the hotel with the boy at about 1000 a.m. to 11.00 a.m. and returned to the hotel at about 8.00 p.m. without the boy. On being questioned by one Umakant Padhi (P.W. 12), who was an employee of the said hotel, the accused told him that he left the boy with a relation whom he found and he would bring the boy on the next day when they would go to Baripada. As the accused was not permitted by the hotel keeper to sleep in the hotel in that night, he went and slept in Rupsa Rail way Platform. According to the prosecution thereafter the body of the boy was found lying on the Adi of Ranibodhi Pokhari in village Barahpal, P.S. Basta. The police on being informed about the dead body started investigation and later on arrested the accused. It also transpired during the investigation that the girl Archana, the daughter of Rahasmani, was lying with her throat cut at Betnati. She was taken to S.C.B. Medical College Hospital, Cuttack, where she ultimately succumbed to her injury. It may be mentioned here that the accused has been convicted for committing the murder of Archana for which he is undergoing the sentence. 4. The accused has taken the plea of alibi. He has further stated that he has been implicated in a raise case by his neighbours who are inimical to him. He has examined himself as a defence witness and has taken the stand that Gutu Charan Jena is still alive and he received letters from Guru Charan while in Jail. 5. There is no eye witness to the occurrence and the entire case depends on the circumstantial evidence. The prosecution examined as many as twenty-nine witnesses. He has examined himself as a defence witness and has taken the stand that Gutu Charan Jena is still alive and he received letters from Guru Charan while in Jail. 5. There is no eye witness to the occurrence and the entire case depends on the circumstantial evidence. The prosecution examined as many as twenty-nine witnesses. The learned Judge after considering the evidence on record found the accused guilty u/s 302, Indian Penal Code and sentenced him to undergo imprisonment for life. 6. P.Ws. 1 to 6 are the witnesses who have deposed about Rahasmani and her children leaving village Aradapali. P.W. 1 is a Teacher at Aradapali. He has stated that on 11-8-1972 Rahasmani and her children left the village to stay with the accused. Five to six days before she left the village, Rahasmani told him that she would be going with her children to live with the accused and she would open a tea shop and pan shop with the help of the accused. She requested him not to disclose this fact to anybody. P.W. 2, a neighbour of Rahasmani, has deposed that Rahasmani told him that she would be going to Bhadrak as requested by the accused. She asked P.W. 2 not to disclose this fact to anybody. P.W. 3 is a son of the brother of the accused, Appellant. According to him Rahasmani and her children left the village about five years back in the month of Bhadra this witness was examined on 21-3-1977) and he learnt from P.W. 2 that they went to Bhadrak. He has stated in his cross-examination that the accused had come to the village some days prior to the leaving of the village by Rahasmani and her children. P.W. 4 is the Jaa (busband's brother's wife) of Rahasmani. She has stated that Rahasmani and her children left the village about 5 to 6 years back and police came to the village 5 to 10 days thereafter to search for her. She along with Rahasmani had executed a deed of power of attorney in favour of the accused to manage their properties. This witness identified the photograph of Archana. Rahasmani also informed P.W. 5 that she would be taken to Bhadrak by the accused and requested her not to tell the fact to her Bada Jaa. P.W. 6 is the local Sarpanch. This witness identified the photograph of Archana. Rahasmani also informed P.W. 5 that she would be taken to Bhadrak by the accused and requested her not to tell the fact to her Bada Jaa. P.W. 6 is the local Sarpanch. He has stated that Rahasmani left the village on 11-8-1972. According to him on 30-8-1972 police came to the village and told that Archana was found lying with her throat cut at Betnati. Police searched for the accused but could not find him. He was informed by P.W. 22, postal runner, that be found Rahasmani and her children at Kendrapara on 11-8-1972 P.W. 6 is the person who intimated to the police about the return of the accused to the village where he was arrested. P.W. 22 has corroborated the above statement of P.W. 6. He has further stated that he saw Rahasmani and her children in August, 1972 and when he questioned her where she was going she told him that they were going to Baripada. In his cross-examination he has stated that he saw Rahasmani while he was returning at 3.00 p.m. at a distance of two miles from Kendrapara. P.W. 18 saw the accused at about 1.00 p.m. on 11-8-1972 at the bus-stand at Kendrapara. He called the accused to his house but the accused replied that he would go after purchasing a sari and if there would be time. In cross-examination this witness has stated that the accused told him that he would go to Aradapali on that day. The evidence of the above witnesses has not been shaken in cross-examination in any manner and from their statement it is clear that on 11-8-1972 Rahasmani and her children left village Aradapali and came to Kendrapara where the accused was waiting for them to take them. 7. The next witnesses are P.Ws. 16 and 17. P.W. 16 had let out his house at Jaraka to one Narayan Sethi in the year 1972 in which he had opened a hotel. During the third week of August, 1972 he went to the hotel and found a lady with three children, i.e. one boy and two girls sitting there. He asked Narayan as to who they were and Narayan told him that they had come from Kendrapara and would (sic) to Baripada. Narayan has not been examined by the prosecution. P.W. 17 is a rickshaw puller. He asked Narayan as to who they were and Narayan told him that they had come from Kendrapara and would (sic) to Baripada. Narayan has not been examined by the prosecution. P.W. 17 is a rickshaw puller. He has stated that 4 to 5 years ago at 3.30 p.m. or 4.00 p.m. a male, a female and three children got down from a bus. Among the children one was a boy and two were girls. He asked them if they required a rickshaw to which they replied in negative. He has stated that they told him that they would wait for a person coming from Cuttack. They went inside the hotel of P.W. 16, The man (identified to be the accused) left the lady and children in the hotel and was moving hither and thither. Next day in the morning also he found them there. 8. The next witness who has seen Rahasmani and her children and the accused is P.W. 12 who is an employee in the hotel of one Bhima Panda in Rupsa Bazar. He has stated that the accused with a boy and two girls came to the hotel on a Thursday in the month of Bhadra. The Appellant left the hotel with the boy at about 10.00 a.m. or 11.00 a.m. after asking the location of the local hospital and returned alone at about 8,00 p.m. This witness has stated that when he asked the accused about the boy the accused told that he has a relation whom he found and left the boy with him and that the boy would be brought next day when they would go to Baripada. He wanted to sleep in the hotel. But the owner of the hotel did not permit. So he along with the girl left the hotel and went towards Rupsa Railway Platform. This witness has identified the accused in the T.I. parade. 9. P.W. 10 has got a tea shop on Rupsa Railway Platform. He has stated that in the month of Bhadra 4 to 5 years back in the night at about 10.00 p.m. the accused (whom he identified in the Court) along with two girls were sleeping on the Railway Platform. 9. P.W. 10 has got a tea shop on Rupsa Railway Platform. He has stated that in the month of Bhadra 4 to 5 years back in the night at about 10.00 p.m. the accused (whom he identified in the Court) along with two girls were sleeping on the Railway Platform. In the next morning also he found the two girls and after some time the accused came and all of them went towards the narrow gauge train platform wherefrom the train to Baripada was leaving. 10. P.W. 14 has got a hotel and sweet-meat shop near the bus-stand at Betnati. He has deposed that in the month of Bhadra on a Friday (18.8.1972) the accused along with two girls came to his hotel and stayed in the hotel for the day and night. In the morning the accused and one girl left by train. The elder girl was not with them at that time. On Saturday he found the younger girl in the hotel lying on the bed and was crying. By then the accused and the other girl were absent. After some time the accused Came and both the younger girl and the accused went to take their bath. After that the accused took tiffin. This witness asked the accused about the elder girl and the accused replied that he left her at the hospital. Thereafter the accused and the younger girl left by train. P.W. 14 learnt at about 11.00 a.m. that the elder girl was lying with her throat cut near the railway line. From the evidence of this witness it transpires that the elder girl, namely Archana, was lying with throat cut and when the accused came to the hotel the girl was not with him. 11. The next group of witnesses who have been examined by the prosecution are P.Ws. 8 and 9 who have stated that the dead body of the boy was lying on the cremation ground. P.W. 8 has stated that about five years back on a Thursday she went to the time after grazing the cattle and found nothing. Next day she went there with her cattle and found the body of a child lying there. The age of the child would be about 10 to 11 years. The body was lying on the northern side of the tank. There were other children also with her. Next day she went there with her cattle and found the body of a child lying there. The age of the child would be about 10 to 11 years. The body was lying on the northern side of the tank. There were other children also with her. All of them raised alarm and, some people came there. There was an injury on the right hand of the body near the shoulder and the throat was cut. There was a green coloured pant on the body of the child. There was also a Deunria tied with black thread on its right hand. Next day she found that the body had been eaten by dogs and other animals. Her statement has been corporated by P.W. 9 who went to graze cattle. He also found the dead body of the child. According to P.W. 9 there was injury on its right hand and M.O. I was the pant which was found on the body of the child. This witness and P.W. 8 were also present at the time when police came and collected the bones. P.W. 11 was present at the time when the bones were seized by the I.O. (P.W. 26). The bones were collected and sent for medical examination and were examined by P.W. 20. P.W. 20 has stated that on 16-1-1974 he joined as the Professor 'and Head of the Department of Forensic Medicine at S.C.B. Medical College Hospital, Cuttack. After he joining he examined the bones sent by the I.O. and submitted his report (Ext. 5). According to him the age of the person whose bones were examined would be 14 to 18 years. He, however, said that no definite opinion could be given about the sex as the bones were not grown up to the adult stage. According to him no opinion could be given regarding the time of death. 12. As against this, the accused has taken the plea that he left Bhadrak on 10-8.1972 and went to Cuttack in the night bus and he wrote that fact to his mother-in-law (P.W. 13) by an inland letter from Balasore on 12-8-1972. He went to Calcutta and returned to Bhadrak on 17-8-1972 and from that day till 30.8.1972 he was at Bhadrak. Rahasmani and her children did not go to Bhadrak. According to him he was not at Bhadrak from 10.8.1972 to 17-8-1972. He went to Calcutta and returned to Bhadrak on 17-8-1972 and from that day till 30.8.1972 he was at Bhadrak. Rahasmani and her children did not go to Bhadrak. According to him he was not at Bhadrak from 10.8.1972 to 17-8-1972. In support of his above assertion he has produced some letters (Exts. E/1, E/2, E/3, E/4 and N/6). But this assertion of the accused has been belied by the evidence of P.W. 13, his mother-in-law. P.W. 13 has stated that for the last time the accused went to Aradapali on 10-8-1972 which was a thursday. He returned to Bhadrak on 19-8-1972 in the night and stayed in her house till 30-8-1972 and again went to his village by cycle in the morning. 13. P.W. 7 has been examined to prove that Archana was treated at S.C.B. Medical College Hospital and ultimately she succumbed to her injuries. Archana had wrote replies to his questions implicating the accused for having caused the injuries on her person. This witness has been examined to show that the accused was instrumental in taking Rahasmani and her children and sending Rahasmani to some unknown place and then taking her children to various places. 14. Another piece of evidence that has been relied upon by the prosecution is the writing by the accused in his own hand in the daily Samaj dated 17-8.1972 which has been marked as Ext. 30. It is written there "17.8.1972 & 18.8.1972 G.C.J. evening." From this it has been argued that it clearly indicates that G.C.J. means Guru Charan Jena and he was murdered on 20-2-1981 The paper was seized by the I.O. (P.W. 29) from the accused. The Handwriting Expert (P.W. 28) opined that the writing was in the hand of the accused. 15. P.W. 27 is the Chairman of Basta Panchayat Samity. He has stated that on 20-2-1981 hearing that a dead body of a boy was lying on the ridge of Banibodhi Pokhari with his throat cut and the body was eaten by dogs and other animals, he gave a written report to Basta police. P.W. 19 registered a case on the report of P.W. 27 and investigated into the case. He drew up formal F.I.R. and visited the spot. He seized the bones (M.Os. II to VIII) and sent them for medical examination. 16. P.W. 19 registered a case on the report of P.W. 27 and investigated into the case. He drew up formal F.I.R. and visited the spot. He seized the bones (M.Os. II to VIII) and sent them for medical examination. 16. The learned Standing Counsel appearing for the State submitted that from the evidence of P.Ws. 1 to 6 and 22 it is absolutely clear that Rahasmani left village Aradapali on 11-8-1972. From their evidence it is also clear that she came to Kendrapara to accompany the accused to Bhadrak as the accused had promised to start a tea shop and pan shop for her maintenance as well as the maintenance of her children. The accused-Appellant was also seen at Kendrapara bus-stand by P.W. 18. From the evidence of P.Ws. 16 and 17 it has been established that the accused-Appellant along with Rahasmani and her three children (two girls and a boy) were seen at Jaraka in the second week of August, 1972 and all of them left towards Balasore. The next piece of evidence is that of P.Ws. 10 and 12 who have seen the accused along with one (sic) and two girls. From the evidence of P.W. 12 it is clear that the Appellant left the hotel with the boy at about 1000 a.m. to 1100 a.m. and returned alone at about 800 p.m. Both P.Ws. 10 and 12 have identified the accused in the T.I. parade. From the evidence of P.Ws. 8 and 9 it has been established that the dead body of a male child was found with throat cut two miles away from Rupsa out-post. Though the accused argued that he was absent from Bhadrak from 10.8-1972 to 17.8.1972 and had gone to Calcutta, Medinapur and other places, the learned Counsel submitted that this cannot be accepted in view of the positive evidence of P.W. 13, the mother-in-law of the accused. P.W. 13 has stated that the accused returned to Bhadrak on 19.8.1972. So the plea taken by the accused that he was away at Calcutta and Medinapur on the date of occurrence cannot be believed. He also placed reliance on Ext. 30 which is in the hand of the accused. He submitted that all these facts stated above taken together are consistent only with the hypothesis that the accused and none else is the killer of Guru Charan Jena. He also placed reliance on Ext. 30 which is in the hand of the accused. He submitted that all these facts stated above taken together are consistent only with the hypothesis that the accused and none else is the killer of Guru Charan Jena. He further argued that even though the corpus delicti has not been bound, there is circumstantial evidence that the murder has been committed by the accused. 17. On the other hand the accused, who argued his own case, submitted that he is in no way connected with the crime and has been falsely implicated in this case. He also asserted that Guru Charan Jena is still alive. 18. No doubt, there is no positive evidence to this effect except suggestions and production of some letters alleged to have been written by Guru Charan Jena. Except the accused saying that Guru Charan Jena is still alive and is writing letters to him there is nothing on record to come to such a conclusion. From the above contentions it is to be seen how far the prosecution has brought home the case against the accused. 19. In the decision reported in Vishnu Datta Mishra Vs. State of Madhya Pradesh it has been held: In case where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstantances should, be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. As already discussed, from the evidence of P.Ws. 1 to 6 and 22, it has been established that Rahasmani also with her children left village Aradapali on 11-8-1972 and subsequently were seen at Jaraka Chhak by P.Ws. 16 and 17. P.Ws. 16 and 17 did not know Rahasmani or her children before. As already discussed, from the evidence of P.Ws. 1 to 6 and 22, it has been established that Rahasmani also with her children left village Aradapali on 11-8-1972 and subsequently were seen at Jaraka Chhak by P.Ws. 16 and 17. P.Ws. 16 and 17 did not know Rahasmani or her children before. They have only stated that they saw one lady, two girls and a boy along with the accused. P.Ws. 10 and 12 have also stated about the accused going with one boy and two girls. Evidently at that time Rahasmani was not with them as these witnesses do not speak about" any lady accompanying the accused. These two witnesses also did not know the boy or the girls earlier. There is no evidence as to the movement of the accused between 11.00 a.m. when he left Rupsa with the boy and 8.00 p. m when returned to that place without the boy. The dead body of the boy was found near Ranibodhi tank by P.Ws. 8. and 9. Though the green half pant (M.O. I) was recovered and P.W. 8 has stated that a Deunria was in the hand of the dead body, these article have not been identified as belonging to the boy Guru Charan Jena. The police only collected some bones which were examined by P.W. 20. But the evidence of P.W. 20 is of no consequence to the prosecution as he could not know the sex from the bones. Though the prosecution wants to establish from Ext. 30 that G.C.J. means Guru Charan Jena and he was murdered on 17-8-1972 it is difficult to draw such an inference from this writing. The circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established, and at the facts so established should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. There must be a chain of evidence so fat complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. There must be a chain of evidence so fat complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. Keeping the above principle in view and judging the evidence on record it cannot be said that the evidence is so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. No doubt, a grave suspicion arises that the accused might have committed the crime. But mere suspicion, however strong, cannot take the place of legal proof. Though no doubt a heinous offence is going unpunished, in our view the circumstances established in this case do not lead to the irrestible and the only conclusion that the accused is the author of the crime and is the murderer of Guru Charan Jena. 20. Considering the evidence on record, argument of both sides and in the facts and circumstances of the case we are of the view that the prosecution has not proved the case beyond reasonable doubt and the accused is entitled to the benefit of the same. The appeal is, therefore, allowed and the conviction and sentence of the accused-Appellant are set aside. He be released from jail custody and set at liberty forthwith unless required to be detained in any other case. P.K. Mohanti, J. 21. I agree. Final Result : Allowed