B. N. MISRA, J. ( 1 ) SUBAS Bhoi, Dukhbhyam Baral and Udia Bhoi the three appellants, have been convicted under section 302/34 I. P. C. and sentenced to imprisonment for life. Accused Fakir Rout who was also tried along with the appellants has been found not guilty and acquitted of all the charges. ( 2 ) PROSECUTION case may be briefly stated. The appellants belong to neighbouring villages situated near Malatipatpur railway station. Subas and Dukhishyam used to work in the coal depot of Sindhu Samartha near village Batagaon. Deceased Bhaba Behera aged about 30 years, had been working in a Gulf Country and had come home on leave in the month of Kartik or Margasira, 1982. During the night between 10-1-1983 and 11-1-1983 at about 11. 00 p. m. the deceased and his recently married wife, Sasi Dei, were found sitting in a room of the coal, depot of Sindhu Samartha along with appellants Subas, Dukhishyam and Udia. Early next morning Subas and Dukhishyam spread the news in the neighbourhood that a man and a woman had been run over by a train on the railway line the previous night. The dead body of Bhaba was found on the railway track and the dead body of Sasi Dei was found under a bush. It a short distance from the place where the dead body of Bhaba was lying. P. W. 19, Assistant sub Inspector of Police, was attached to the Pun G. R. P. at that time. On 11-1-1983 at 9. 30 a. m. he received a report from the Assistant Station Master, Pun that as per the memo of the Guard of 79 Express train the dead body of a male was found lying on the railway track between Pun and Malatipatpur. On the basis of this report, P. W. 19 registered U. D. Case No. 1/83 and took up investigation. He visited the spot and found the dead body with multiple injuries lying on the railway track. At a distance of 71 feet from the spot on the railway track, he found the dead body of a female lying under a bush and that place came within the jurisdiction of Pun Sadar P. S. He reported the matter to the Officer-in-Charge, Sadar P. S. P. W. 23. Ext. 24 is the report of P. W. 19 and Ext. Ext. 24 is the report of P. W. 19 and Ext. 25 is the formal U. D. F. I. R. P. W. 23 registered U. D. Case No. 1/83 and took up investigation. On 12-1-1983 he visited the spot and found the male dead body lying with multiple injuries on the railway track and a female dead body lying under a thorny bush about 70 feet away. He requisitioned the services of a police dog. P. W. 22, Sub Inspector of Police, was at that time in charge of the dog-squad at Pun. On 12-1-1983 on receipt of requisition from P. W. 23, P. W. 22 took the dog with him to the spot. Under the guidance of P. W. 22, the dog first smelt the clothing of the female dead body and led the police party to the houses of Gopal Bhoi, father of appellant Subas, and Budhia Bhoi and Paramma Bhoi. P. W. 23 held inquest over the dead body, vide Ext. 2, the inquest report. In course of inve9tlgation P W. 23 examined witnesses and searched the houses of Gopal Bhoi. Budhia Bhoi and Paramma Bhoi. P. W. 19 had held inquest over the male dead body, vide Ext. 7, the inquest report. He had also seized cash of Rs. 117. 06 paise from the wearing apparel of the male dead body and other articles, vide seizure list Ext. 8. P. W. 19 had sent the male dead body for post-mortem examination to P. W. 21 on 12-1-1983 vide Ext. 10 the dead body challan and Ext. II, the command certificate. P. W. 19 received the post-mortem report on 21-1-1983. On 7-5-1983 P. W. 19 transferred the case to P. W. 23 under orders of the Court received by him on 2-5-1983. P. W. 23 had lent the female dead body for post-mortem examination to P. W. 21 on 12-1-1913, vide Challan, Ext. 12 and the command certificate. Ext. 13. P w. 23 received the post-mortem report from P. W. 21 on 21-1-1983 and registered the present case under section 302, I. P. C. Ext. 26 is the F. I. R. drawn up by P. W. 23 who then took up investigation into the present case. On 24-1-1983 P. W. 15 father of deceased Bhaba and his wife identified the deceased persons with the help of their photographs and the wearing apparel. 26 is the F. I. R. drawn up by P. W. 23 who then took up investigation into the present case. On 24-1-1983 P. W. 15 father of deceased Bhaba and his wife identified the deceased persons with the help of their photographs and the wearing apparel. Inspite of search P. W. 23 had not found appellants Subas and Dukhishyam, but on 29. 1. 1983 at about 8. 00 a. m. the Gramarakhi, P. W. 17, produced them before P. W. 23. As Subas and Dukhishyam appeared to have sustained some injuries, P. W. 23 sent them to P. W. 18 for their medical examination. Subas and Dukhishyam were arrested by P. W. 23 on 2-2-1983. On 20-4- 1983 P. W. 23 learnt that appellant Udia Bhoi had returned home. On 27-4-1983 P. W. 23 arrested appellant Udia Bhoi and accused Fakir Rout. After completion of investigation P. W. 23 submitted charge-sheet against the accused persons on 30-5-1983. They were then committed to the court of sessions. ( 3 ) THE accused persons were charged under section 302/34, I. P. C. for committing murder by intentionally causing the death of Bhaba Behera and his wife, Sasi Dei, under section 376, I. P. C. for having committed rape on Sasi Dei before her death and under section 201, I. P. C. for having concealed the dead body of Sasi Dei under a bush after killing her and put on trial. Twenty-four witnesses were examined on behalf of the prosecution and none on behalf of the defence. The defence plea is one of denial. In their statements recorded under section 313, Cr. P. C. , the appellants have denied any knowledge about the occurrence. They have asserted that they have been falsely implicated in this case. Appellants Subas and Dukhishyam have further stated that the injuries found on them might have been sustained by scratching with their own finger nails or by sleeping on the damaged floor of the police lock-up. The learned Sessions Judge who tried the case found the three appellants guilty under section 302/34, IPC and sentenced them to imprisonment for life. The appellants have been acquitted of the charges under sections 376 and 201, I. P. C. Accused Fakir has been acquitted of all the charges. ( 4 ) P. W. 21 had conducted the postmortem examination on the dead body of deceased Bhaba on police requisition. The appellants have been acquitted of the charges under sections 376 and 201, I. P. C. Accused Fakir has been acquitted of all the charges. ( 4 ) P. W. 21 had conducted the postmortem examination on the dead body of deceased Bhaba on police requisition. He found the following external injuries: (i) The head of the deceased was detached from the base with lacerated injuries and the cervical vertebrae were crushed; (ii) Abrasions over the -thigh of left leg, left arm and fore-arm; (iii) Lacerated wound over the tip of the left middle finger. On internal examination P. W. 21 did not find any abnormality in the viscera. Ext. 15 is the postmortem report. According to P. W. 21, death was due to the injuries over the neck and these might have been due to running over by a train. The injuries were ante-mortem in nature. P. W. 21 has also stated that if a person is killed by a knife and the dead body thrown on the railway lines and run over by a train soon thereafter, the ante-mortem injuries as were found on the deceased could be possible. The abrasions found on the deceased were likely to have been caused by tussle with two or three persons. Death must have been instantaneous after the infliction of the injuries or running over by train. In cross-examination P. W. 21 ruled out the possibility of the deceaseds death by suicide. On the same day on police requisition P. W. 21 conducted the post-mortem examination on the dead body of Sasi Dei and found the following external injuries: (i) One abrasion 1/2t x 1/2t over both the dorsal aspects of the knees. (ii) One small abrasion over the right knee joint at the ventral side. On dissection P. W. 21 found that the stomach contained half digested food particles. The viscera were congested and the tongue was in a bitten state. Though P. W. 21 was not certain about the exact cause of death, in his opinion the death was probably due to respiratory failure by strangulation as the tongue was found in a bitten state. The injuries on the deceased were ante- mortem in nature. Ext. 16 is the post-mortem report. In his cross examination P. W. 21 has stated that he had not found any sign of rape on the female dead body. The injuries on the deceased were ante- mortem in nature. Ext. 16 is the post-mortem report. In his cross examination P. W. 21 has stated that he had not found any sign of rape on the female dead body. The aforesaid medical evidence establishes that the deaths of Bhaba and Sasi were homicidal in nature and that Bhabas death was on account of injuries on his person and Sasi's death was likely to have been caused by strangulation. ( 5 ) IN the present case there is no evidence as to the exact place where Bhaba and his wife Sasi were done to death. Bhabas dead body was found on the railway track and Sasis dead body was found about 70 feet away under a thorny bush. Blood-stained articles and bloodstained earth have been recovered from the places where the dead bodies were found, but it is possible that both were murdered at the same place or different places and then the dead body of Bhaba was placed on the railway track and the dead body of Sasi Dei discarded under a nearby bush. Of the twenty four witnesses examined on behalf of the prosecution at the trial, seven witnesses, namely P. Ws. 3 to 8 and P. W. 12, turned hostile to the prosecution and did not support the prosecution case. Their evidence does not implicate the accused persons. ( 6 ) THERE are no eye-witnesses to the occurrence. Prosecution case rests solely on circumstantial evidence. The law on the subject of circumstantial evidence is now well settled. In Hanumant Govind Nargundkar and another v. State of Madhya Pradesh1 it was held: It is well to remember that in cases 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 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. Again, 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. 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. In a recent decision of the Supreme Court reported in Sharad Birdhichand Sarda v. State of Maharashtra2 it has been held: A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned must or should and not may be established. There is not only a grammatical but a legal distinction between may be proved and must be or should be provedt as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra3, where the following observations were made; Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between Tmay be and Tmust be is tong and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, that should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved. (5) 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. (5) 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. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence Bearing in mind the principles of law relating to circumstantial evidence laid down in the decisions referred to above, the nature and character of the circumstantial evidence adduced in this case may now be examined. ( 7 ) THE first circumstance is that the three appellants were last seen. In the company of the deceased persons at about 11. 00 a. m. on 10. 1. 1983 in one of the three rooms of the coal depot of Sindhu Samartha. The evidence in this regard comes from P. W. 1. At the outset it may be noted that P. W. 1 has admitted that he is an accused in two or three excise cases and though he has denied it, the Gramarakhi, P. W. 14, has stated on oath that P. W. 1 has an illicit liquor shop near his house in village Batagaon. In view of this unimpressive back ground of P. W. 1, it is necessary that his evidence must be scrutinized with extreme care and caution. In court he has stated that on the night of occurrence at about 11 00 p. m. while he was returning from Harekrishnapur Bazar to his house he had seen appellant Udia Bhoi standing near the coal depot of Sindhu Samartha. To his query Udia Bhoi replied that he was standing at that place as usual. P. W. 1 claims to have seen a lantern burning in a room of the coal depot and he entered into the room and found a man and a woman sitting in that room and appellants Subas and Dukhishyam were sitting on the verandah of that room. To his query appellant Subas informed him that the man and the woman were his relations and that they were waiting on their way to Malatipatpur railway station. Next morning he heard the news in the village that a man and a woman had been run over by a train and killed. To his query appellant Subas informed him that the man and the woman were his relations and that they were waiting on their way to Malatipatpur railway station. Next morning he heard the news in the village that a man and a woman had been run over by a train and killed. On bearing this be came to the main road and found appellant Subas standing on the road near the coal depot. Subas enquired from P. W. 1 as to where he was going and he replied that he was going to see the man and the woman who had been run over by a train. Subas then told him that he had already seen the man and the woman in the coal depot the previous night and at the same time Subas threatened P. W. 1 that if he disclosed this fact to anyone Subas would kill him. P. W. 1 proceeded to the spot and found the dead bodies of a man and a woman and they were the same persons whom he had seen in the coal depot on the previous night. In his cross-examination P. W. 1 was confronted with his previous contradictory statements made before P. W. 23. P. W. 23 has stated that he had examined P. W. 1 for the first time on 12. 1. 1983 and during that examination P. W. 1 had not disclosed anything. According to P. W. 23, in his statement recorded on 12. 1. 198 3, P. W. 1, had not implicated any of the accused persons nor had he thrown any light on the occurrence. P. W. 21 examined P. W. 1 for the second time on 14. 3. 1983 and during this second examination the statement of P. W. 1 as recorded by P. W. 23 contradicts his statement made in court. According to P. W. ls statement recorded by P. W. 23, when he arrived at the coal depot on the night of occurrence he bad seen all the three appellants sitting and talking inside the depot while accused Fakir was standing near the coal depot outside It may be noted that this court version is that accused Fakir was nowhere around the coal depot and that while Subas and Dukhishyam were inside the room, appellant Udia was outside. Further, in his statement recorded by P. W. 23, he had stated that he had talked to accused Fakir outside the depot before entering, while in court his statement is that he had talked to appellant Udia before entering the depot. Though in court he stated that there was a lantern burning inside the room, he had not stated before P. W. 23 that there was a lantern burning or any source of light inside the room. These are serious and material contradictions and it is doubtful whether P. W. 1 has stated the truth in court. Besides, as already noted, P. W. 1 is not a person of good conduct or character. He runs an illicit liquor shop and is an accused in two or three excise cases. It is also very strange that in course of his first examination by P. W. 23 on 12. 1. 1983, a day after the occurrence, he did not disclose anything about the occurrence and did not implicate the appellants, while for the first time he narrated the occurrence before P. W. 23 two months after the occurrence when he was examined for the second time on 14. 3. 1983. Though P. W. 1 has casually stated in court that appellant Subas had threatened to kill him in case of disclosure, this explanation can hardly be said to be satisfactory. In the presence of the Officer-in-charge, P. W. 23, there was no need for him to be afraid of appeijant Sub as particularly when according to the prosecution, appellant Subas was not then present in the village. In view of these infirmities, no reliance can be placed on the evidence of P. W. 1. ( 8 ) THE second circumstance relied upon by the prosecution is that appellant Subas spread the news and informed P. W. 1 in the morning following the occurrence night that a man and a woman had been run over by a train. We have already discarded the evidence of P. W. 1 on the ground that be is not a reliable witness and hence his evidence regarding the information given by appellant Subas cannot be accepted. Besides, P. Ws. We have already discarded the evidence of P. W. 1 on the ground that be is not a reliable witness and hence his evidence regarding the information given by appellant Subas cannot be accepted. Besides, P. Ws. 2 and 3, who were declared hostile by the prosecution on the ground that they were suppressing the truth, have stated that in the morning following the occurrence night appellant Dukhishyam had informed them that a man and a woman had been run over by a train on the previous night. This statement by itself can hardly be accepted as implicating appellant Dukhishyam with the crimes. ( 9 ) THE third circumstance relied upon by the prosecution is the fact that appellants Subas and Dukhishyam were not available in their houses until their arrest on 2. 2. 1983 and appellant Udia Bhoi could not be traced until 27. 4. 1983. The fact that the appellants were not present for some time after the occurrence in their respective houses cannot by itself lead to the irresistible conclusion that they bad absconded with a view to shield themselves from the arms of law. Without proof of anything more such conduct is quite compatible with innocence as well. ( 10 ) THE fourth circumstance relied upon by the prosecution is the presence of injuries on appellants Subas and Dukhishyam. P. W. 18 had found on examination three injuries on Subas with bail mark. Ext. 3 is the injury report in respect of appellant Subas. On examining appellant Dukhishyam, P. W. 18 had found two bruises and one scratch injury. Ext. 4 is the injury report in respect of appellant Dukhishyam. P. W. 18 has further stated that the bruises at were found on appellant Dukhishyam were also possible by call on a hard surface. In cross-examination P. W. 18 has stated that the injuries as were found on appellant Subas were possible by his own nails and that the said injuries on Subas and on Dukhishyam could also be caused by coming in contact with any rough surface. In, view of the medical evidence, the plea of appellants Subas and Dukhishyam that the injuries found on their persons might have been caused by scratching of with their own bails or by sleeping on the damaged floor of the police lock-up seems quite probable. In, view of the medical evidence, the plea of appellants Subas and Dukhishyam that the injuries found on their persons might have been caused by scratching of with their own bails or by sleeping on the damaged floor of the police lock-up seems quite probable. ( 11 ) THE fifth and the last circumstance against the appellants is that after smelling the wearing apparel of the female dead body, the police dog had entered the house of Subass father, Gopal Bhoi. In their evidence P. Ws. 22 and 23 have both stated that the dog had entered not only the house of Gopal Bhoi, but it had also entered the houses of Budhia Bhoi and Parama Bhoi. No explanation has been given why the dog had entered the house of Budhia Bhoi and Parama Bhoi. In this context reference may be made to a decision of the Supreme Court in Abdul Razak Murtaza Dafadar v. State of Maharashtra4, wherein it was observed that in the present state of scientific knowledge, evidence of dog tracking, even if admissible, was not ordinarily of such weight. In the present case, we are also of the opinion that the fact that the police dog entered the house of Gopal Bhoi should not be given much weight particularly when nothing incriminating has been recovered from the house. ( 12 ) THUS the five circumstances discussed above do not satisfy the tests laid down in the case of Sharad v. State of Maharashtra (supra ). The circumstances relied upon by the prosecution against the appellants have not been fully established and they have not been proved to be of such a conclusive nature and tendency so as to exclude every hypothesis hut the one that the appellants had committed the crimes. ( 13 ) FOR the reasons stated above, we hold that the prosecution has failed to bring home the charge under section 302/34, Indian Penal Code against the appellants. This appeal is accordingly allowed and the conviction and sentence passed against the appellants are set aside. The appellants are held not guilty and acquitted of the charge. They be set at liberty forthwith. .