JUDGMENT : K.P. Mohapatra, J. - This appeal is directed against the judgment passed by the learned Additional Sessions judge, Cuttack convicting the Appellants u/s 302/34, I.P.C. for having intentionally caused the death of one Naba Misra (hereinafter referred to as the 'deceased') in the night of 7-6-1984 inside Brahmana Begicha of mouja Devidwar near Jajpur Town and sentencing each of them to undergo imprisonment for life. 2. prosecution case in brief is that the deceased and the Appellants were agnates and closely related to one another. For about thirty years the family of the deceased on one side and the families of the Appellants on the other hand land disputes and had fought several litigations. Eight days prior to the date of occurrence Appellant Sania alias Sanatan Misra, cook of Appellant Dharanidhar Misra, came to the Bari of the deceased and plucked cocoanuts for which there was a quarrel. On account thereof, Appellants Dharanidhar Misra, Ganesh Misra, Tunia alias Prafulla Misra and Prabhat alias Kamapala Misra became enraged, picked up qurrel with the deceased and threatened him with dire consequences. 3. In the night of 7-6-1984 the deceased was about to take his night meal when Kathia alias Prasant Kumar Satpathy (accused since acquitted by the trial judge) came to the house and called him saying that he was wanted by Appellant, Prasanta Kumar Pati. The deceased without takins his night meal followed Kathia alias Prasanta Kumar Satpathy. He did not come back at night. His mother went in search of him towards the temple side, but could get no trace of him. On her request the informed (P.W. 1) also searched for the deceased, but could not trace him out. On the next day in the morning it was found that the dead body of the deceased was hanging in the tree at Brahmana Bagicha of mouja Devidwar at a very short distance from the house of the Appellants. There were marks of injuries on different parts of his body and oozing of blood. Both his 1263 which touched the ground were tied by means of a rope. A trail of blood mark was present from the Bari of the Appellants upto the Brahmana Bagicha. With many others the informant (P.W. 1) saw the ghastly sight and lodged written report (Ext. 1) at Jajpur Police Station. Both his 1263 which touched the ground were tied by means of a rope. A trail of blood mark was present from the Bari of the Appellants upto the Brahmana Bagicha. With many others the informant (P.W. 1) saw the ghastly sight and lodged written report (Ext. 1) at Jajpur Police Station. Investigation commenced and in course thereof the dead body was sent for the post-mortem examination. A blood stained mat, Lungis, earth and some other articles were seized by seizure lists (Ext. 2, 3 and 4) and were sent for chemical examination and serologist report. After close of investigation charge sheet was submitted against the Appellants and Kathia alias Prasant Kumar Satpathy for having committed offences under Sections 120-B, 302 and 201 read with Section 34, I.P.C. 3. The Appellants took the plea of denial of their participation, in the crime. 4. The learned Additional Sessions Judge on a thorough consideration of the evidence of the sale eye-witness to the occurrence, as well as circumstantial evidence of an incriminating character in the context of the previous litigations and enmity between the family of the decease of and the Appellants which provided motive for the heinous crime convicted and sentenced them u/s 302 read with Section 34, I.P.C. for having committed murder of the deceased. He, however, acquitted Kathia alias Prasant Kumar Satpathy of all charges and further found that charges u/s 120-B and 201 read with Section 34, I.P.C. were not proved against the Appellants and so absolved hem of all these charges. 5. P.W. 13 the Medical Officer who conducted the post-mortem examination of the dead body of the deceased found as many as ten external injuries of the nature of the abrasion, bruises incised wound, lacerated wounds, rope marks on different parts of body and a well defined ligature mark with groove around the neck. On (sic) he found five internal injuries consisting of fractures and contusions causing injuries to the brain, chest and neck. According to his opinion, all the injuries found on the dead body were ante mortem in nature. The injuries on the head and neck were fatal. Death was caused due to shock for the injuries is the brain as well asphyxia. He finally opined that it was a homicidal death. The evidence of P.W. 13 was not seriously challenged before the trial Judge not during arguments in appeal. The injuries on the head and neck were fatal. Death was caused due to shock for the injuries is the brain as well asphyxia. He finally opined that it was a homicidal death. The evidence of P.W. 13 was not seriously challenged before the trial Judge not during arguments in appeal. It is, therefore, established that the death of the deceased was caused due to shock for the injury in the brain as well as the asphyxia due to the ligature mark on the neck and so homicidal in character. 6. Mr. G.N. Mohapatra, learned Counsel appearing for the Appellants vehemently urged that the so called eye-witnesses to the murder, P. Ws. 10 and 12, were thoroughly unreliable witnesses. Besides their testimony being discrepantly in material particulars, both of them, doing small business in Jajpur town, did not disclose the particulars of the incident which they (sic) limed to have seen either to the relations of the deceased or to the police for a long time. Their explanation for keeping silence about the ghastly murder which must have created sensation in the town was not sufficiently and satisfactorily explained. According to the settled position of law, therefore, both of them are thoroughly unreliable witnesses and their evidence should be thrown overboard like that of P.W. 11 which the learned Sessions Judge rightly did. If the evidence of P. Ws. 10 and 12 is disbelieved, there is no other incriminating material to pin down the Appellants as culprits. The learned Additional Government Advocate, on the other hand, urged that on account of land disputes the family of the deceased and the families of the Appellants were litigating for about 30 years. A few days prior to the commission of the murder there was a dispute between the deceased and some of the Appellants such as. Dharanidhar Misra, Ganesh Misra. Tunia alias Prafulla Kumar Misra and Prabhat alias Kamapala Misra with regard to plucking of cocoanuts from the former. The above facts provide motive for the murder. There was circumstantial evidence such as, seizure of a mat and a Lungi (M.Os. I and II respectively) from the house of Appellant Janardan Misra by seizure list (Ext. 2) and two more lungis (M.Os. III and IV) were seized from the house of appellate Dharanidhar Misra by seizure list (Ext. 3) which were stained with human blood. There was circumstantial evidence such as, seizure of a mat and a Lungi (M.Os. I and II respectively) from the house of Appellant Janardan Misra by seizure list (Ext. 2) and two more lungis (M.Os. III and IV) were seized from the house of appellate Dharanidhar Misra by seizure list (Ext. 3) which were stained with human blood. There was also a trail of blood mucks from the homestead of the Appellants to the place where the deceased was found hanging inside Brahmana Bagicha. The evidence of P.Ws. 10 and 12 who saw the occurrence wholly and partially respectively cannot be doubted and the explanation offered by them for the delay for disclosure of the facts of the occurrence was quite acceptable. So the prosecution proved its case to the hilt. 7. In view of the contentions raised. It is necessary to discuss the evidence, both circumstantial and direct. (i) Motive: The motive for the murder was long standing litigations with regard to immoveable property. In the litigations the family of the deceased was on one side and the Appellants and some other s were on the other. The immediate notice was with regard to plucking of the cocoanuts from the Sari of the deceased at the instance of some of the Appellants. I here was a quarrel during which Appellants Dharanidhar Misra, Ganesh Misra, Tunia alias Prafulla Kumar Misra and Prabhat alias Kamapal Misra threatened the deceased to do away with life. The witnesses who spoke about the litigations and the quarrel were (P.W. 2) mother of the deceased, (P.W. 6) a neighbour of the Appellants, (P.W. 8) maternal uncle of the deceased who served as Advocate's Clerk of Jajpur and (P.W. 9) younger brother of the deceased. It will appear from their evidence that there were civil litigations between the parties for about 30 years and although apparently settled down by Court's decrees and orders, the parties had not become silent. A few days before the occurrence there was also a quarrel in which the deceased was threatened by some of the Appellants named above. On a thorough discussion of their evidence the learned Sessions Judge accepted it as a fact that the past litigations and a quarrel, a few days prior to the occurrence, provided motive for the murder of the deceased. On a thorough discussion of their evidence the learned Sessions Judge accepted it as a fact that the past litigations and a quarrel, a few days prior to the occurrence, provided motive for the murder of the deceased. On re-assessment of the evidence of these witnesses we accept the conclusion of the learned Sessions Judge as reasonable. (ii) Last seen together theory: P.W. 2, mother of the deceased stated that on 7-6-1984 in the evening while the deceased was going to take his night meal, accused Kathia alias Prasant Kumar Satpathy (since acquitted) came to her house and asked the deceased that he was wanted by Appellant Prasanta alia Prasanta Kumar Pati. On being so called the deceased left the house. He did not return in the night. There was a search for him, but he was not found. In the next morning he was found dead hanging in a tree at Brahmana bagicha. This part of the evidence of P.W. 2 has not been corroborated by P.W. 1, the informant who at the instance of P.W. 2 went in search of the deceased to Biraja Bazar if it was a fact that Kathia alias Prasanta Kumar Satpathy had called the deceased as he was wanted by Appellant Prasanta alias Prasanta Kumar Pati, in normal course while asking P.W. 1 to go in search of the deceased, P.W. 2 would have told the act to him. Accused. Kathia alias Prasanta Kumar Satpathy was acquitted by the learned Sessions Judge finding him to be innocent. In view of the aforesaid set of evidence we on hardly accept the version of P.W. 2 that the deceased was last seen together with accused Kathia alias Prasanta Kumar Satpathy at the instance of Appellant Prasanta alias Prasanta Kumar Pati. To other aspect of the last seen theory was provided by P.W. 12 who though characterised as an eye-witness, was not actually a witness to the murder. He stated that on 7-6-1984 at about 12 midnight after closing his shop at Biraja Hat was going to his house near the house of Appellant Dharanidhar Misra. He saw that Appellant Prasanta alias Prasanta Kumar Pati was carrying a boy on his shoulder and Appellants Dharanidhar Misra, Janardan Misra, Ganesh Misra, Prabhata alias Kamapala Misra and Tunin alias Prafulla Kumar Misra and their cook were coming behind him. They went towards south of their houses. He saw that Appellant Prasanta alias Prasanta Kumar Pati was carrying a boy on his shoulder and Appellants Dharanidhar Misra, Janardan Misra, Ganesh Misra, Prabhata alias Kamapala Misra and Tunin alias Prafulla Kumar Misra and their cook were coming behind him. They went towards south of their houses. Street lights were burning and so he could identify them. He came home without making any query from the persons he saw and next morning got information that the deceased was dead. It will appear from his cross-examination that except informing his wife as to what he had seen, he did not inform anybody that the aforesaid Appellants were carrying a boy. He made the statement before the police after ten to fifteen days. His explanation for delay of disclosure was that he suffered from fever. The evidence of the witness can be assailed on the following grounds: (a) He did not identify the boy carried by Appellant Prasanta alias Prasanta Kumar Pati on his shoulder. The deceased was not a boy, but a young man aged about 22 years as would appear from post mortem report (Ext. 5). It could hardly be possible on the part of a single person to carry him on his shoulder. (b) The witness did not exhibit any curiosity to find out who was the boy and where the above named Appellants were proceeding. (c) The boy could be a member of the family of the Appellants which possibility in the absence of identification could not be ruled out. (d) The wife of the witness was not examined to prove that actually the fact had been disclosed to her, and (e) There is no evidence that the witness suffered from fever for a pretty long time. The above considerations impel us not to place reliance on the evidence of P.W. 12. Law is well-settled that if an eye-witness to a murder does not volutarily disclose the fact for a long time and keeps mum until the statement is recorded by the police awl he does not satisfactorily explain for his silence, his evidence should be viewed with suspicion S.C. Biswambar Meher Vs. State of Orissa, . In consideration of the above facts and law we do not attach any credit to the evidence of P.Ws. 2 and 12 and hold that the last seen together theory is not a piece of satisfactory evidence in this case. State of Orissa, . In consideration of the above facts and law we do not attach any credit to the evidence of P.Ws. 2 and 12 and hold that the last seen together theory is not a piece of satisfactory evidence in this case. 8. It was pointed out that the blood of the deceased was of 'B' group. Some articles belonging to some of the Appellants contained blood of 'B' group which showed their complicity in the crime. It will appear from the report of the Serologist (Ext. 16) that article 'A' portion of a Lungi, article 'B' some earth and article D-II portion of a grass mat contained human, blood of 'B' group. From the list of exhibits contained in the forwarding note (Ext. 13) it appears; that article marked 'A' was the Lungi of the deceased which contained blood. So it is evident that the blood of the deceased was of 'B' group. Article marked 'B' blood stained earth was seized from the land of Appellant Janardan Misra. Blood seized from the open and though of the same group as that of the deceased cannot implicate any person with the crime. So seizure of blood stained earth as referred to above seems to be of little consequence. Article D-II was a grass mat seized from the bed room of Appellant Tunia alias Prafulla Misra from which human blood of 'B' group was detected. A grass mat is usually used for sitting and sleeping purposes. The blood group of Appellant Tunia alias Prafulla Misra was not examined to find out whether it was of 'B' or any other group. It may well be said that the blood group of the aforesaid Appellant was 'B' in which case the grass mat containing human blood of 'B' group cannot be said to be an incriminating article because, it might have been stained with his own blood. It will thus appear that matching of the blood group as discussed above will not lead to the conclusion that Appellants Janardan Misra and Tunia alias Prafulla Misra were involved in the crime. 9. The most important consideration in this appeal is whether the evidence of the sole eye-witness to the occurrence (P.W. 10) Sk. Fakiruddin can be believed. It will thus appear that matching of the blood group as discussed above will not lead to the conclusion that Appellants Janardan Misra and Tunia alias Prafulla Misra were involved in the crime. 9. The most important consideration in this appeal is whether the evidence of the sole eye-witness to the occurrence (P.W. 10) Sk. Fakiruddin can be believed. It is the settled position of law that a conviction can be based on the evidence of the sale eye-witness to an occurrence provided it is unimpeachable credible and inherently believable. But in some cases in order to accept the evidence of such a witness some amount of independent corroboration should be sought for. Reference in this regard may be made to Vadivelu Thevar Vs. The State of Madras Chintamani Nahak alias Naik Vs. State of Orissa 1985 SCC 235 Shrishail Nageshi Pare v. State of Maharashtra, (1988) I OCR. 389 (supra) and (1988) I OLR 447 Bijoy Kumar Misra v. State of Orissa. P.W. 10 in his evidence stated that his house and homestead were at a distance of 50 cubits from. Brahman Bagicha. On 7-6-1984 at night he went outside to answer the call of nature. While he was doing so he saw that some persons entered inside the Brahman Bagicha. When they did not pass-through the same he entertained suspicion and went near at Kia bush and saw that the deceased was lying on the ground. Appellant Prasanta alias Prasanta Kumar Pati had put his leg on the neck of the deceased. Appellant Prabhat alias Kamapala Misra was twisting his hand. Appellants Ganesh Misra, Tunia alias Prafulla Misra and Sania alias Sanatan Misra were assaulting the deceased by means of broken bricks. Appellants Janardan Misra, Puma Chandra Misra and Dhaqmidhar Misra were focussing torch lights. Appellant Puma Chandra Misra was also instigating the others to finish the deceased at a time. Seeing this the witness entertained fear and came back to his house. He narrated the incident to his wife and his agnatic elder brother Sk. Jalil. Sk. Jalil advised him not to disclose the incident to anybody as they belonged to a minority community. The next morning he went to Andhra Pradesh in connection with his fruit business and stayed therefore 6 to 7 days. It is necessary to refer to a few facts elicited in his cross-examination. His shop is at Biraja Hat. Biraja Police Out. Jalil advised him not to disclose the incident to anybody as they belonged to a minority community. The next morning he went to Andhra Pradesh in connection with his fruit business and stayed therefore 6 to 7 days. It is necessary to refer to a few facts elicited in his cross-examination. His shop is at Biraja Hat. Biraja Police Out. Post is in between his house and the shop. He has got a telephone in his shop. By the time he left for Andhra Pradesh the murder of the deceased was wide spread in the village. Jajpur Police Station was at a distance of about 100 cubits from the bus stand. He did not call any of his neighbours to the place of occurrence and did not inform them what he had witnessed. The night of the occurrence was quite dark. The pi ace where the deceased was being assaulted was about 15 cubits from the Kia bush behind which he saw the assault by faces of three torch lights. He had no proof to show that in the next morning of the occurrence he went away to Andhra Pradesh. There was a septic latrine in his own house. The evidence of this witness suffers from several infirmities and inherent improbabilities which are discussed hereunder: (i) The occurrence took place in the night of 7-6-1984. Although the witness stated that he disclosed the incident immediately to his wife and agnatic elder brother, Sk. Jalil, these two persons were not examined by the prosecution for the purpose of corroboration as well as for making explanation of the witness acceptable, for he disclosed the evidence to the Investigating Officer by making a statement u/s 161, Code of Criminal Procedure as late as on 16-6-1984. Had these two persons been examined, it was possible to believe that the witness did not keep silent having seen a ghastly incident of murder and for the purpose of safety, because he belonged to the Muslim community he was forced not to disclose the incident to others. (ii) In the next morning of the incident the witness left for Andhra Pradesh for doing so, he must have come to the bus stand to take a bus from Jajpur to Jajpur Road Railway Station or to Cut tack. On the, way was the Biraja Police Out Post. (ii) In the next morning of the incident the witness left for Andhra Pradesh for doing so, he must have come to the bus stand to take a bus from Jajpur to Jajpur Road Railway Station or to Cut tack. On the, way was the Biraja Police Out Post. He did not stop at the Out post at least to confidentially inform the police officer present there about the incident he saw the previous night. (iii) He had a telephone in his shop. He could as well inform the police over the telephone about what he had seen-the previous night. It was also possible on his part to straightaway come to the Police Station and lodge information, but he chose not to do so. (iv) By the time he left for Andhra Pradesh, the fact of murder of the deceased had become wide spread in the locality. In this context it was expected of him to reveal the incident to a few important persons of the locality. (v) Worst of all, he had no papers or documents to show that he had gone to Andhra Pradesh in the next morning of the incident. He did not also disclose the particular place of Andhra Pradesh to which he had gone. It is possible to believe that he did not steer out his house and did not at all go to Andhra Pradesh which was a ruse to explain away his delated statement before the investing officer on 16-5-1984. (vi) If he had a septic latrine in his own house, it was not ordinarily probable that he should go out near a Kia bush to answer call of nature. (vii) When he first saw from a distance of 200 cubits that a group of persons were coming towards Brahmana Bhgicha, the group obviously consisted of the Appellants and the deceased. If that be so and the deceased was still alive, he ought to be shouting for his life because he was being taken or carried by a group of inimical relations. So, if at all the Appellants brought the deceased to. Brahmana Bagicha by carrying him on the shoulder, it was after he had been immobility and practically rendered unconscious on account of assault inside any of their houses. Therefore, there was no further necessity of assault in the open inside the Brahmana Bagicha so as to be seen by the witness. Brahmana Bagicha by carrying him on the shoulder, it was after he had been immobility and practically rendered unconscious on account of assault inside any of their houses. Therefore, there was no further necessity of assault in the open inside the Brahmana Bagicha so as to be seen by the witness. If the Appellants intended to murder the deceased, they assaulted him inside any of their houses and thinking him to be dead brought the immobility, but still breathing body to the Brahmana Bagicha so as to hang it by neck in order to make it believe that the deceased had committed suicide. This being the probability, it was highly suspicious that the witness saw the Appellants assaulting the deceased inside the Brahmana Bagicha. 10. The most important factor for consideration is the silence of P.W. 10 for over a week without giving, information of the incident he had seen either to the family members of the deceased, the local gentlemen or the police. It is well known that Muslims inhabit in and surrounding Jajpur Town. As a matter of fact, population of Muslims is quite sizable in the area. Neither P.W. 10 nor his agnatic elder brother Sk. Jalil apprehended any communal riot in case the crime was immediately disclosed. There was not even a whisper of threat to P.W. 10 that if he would disclose, dire consequences would follow not only to him but also to the members of the minority community. This being the position, as a normal man of the neighbourhood if P.W. 10 had actually seen the Appellants assaulting the deceased and committing the murder in the night of 7-6-1984 in an open and unenclosed place like the Brahmana Bagicha, he should not have kept himself silent for such a long period when the incident must have given rise to a lot of commotion in the area law is well-settled that if an eye-witness to a murder does not voluntarily disclose the tact for a rang time and keeps silent until his statement is recorded by the police and if he does not offer satisfactory explanation of his silence, his evidence should be viewed with suspicion S.C. 65 (1983) CLT 714; (1988) I OCR 389 (supra). On consideration of the evidence of P.W. 10 and the surrounding facts and circumstances, we find it impossible to accent the version that he had seen the occurrence, but had left for Andhra Pradesh for which reason he made a delayed statement before the police. His explanation of absence cannot be believed and moreover his evidence tinged with suspicion has found no corroboration. Therefore, we are constrained to reject the evidence of P.W. 10, the sale eye-witness to the occurrence, from consideration. 11. In the ultimate analysis, after rejection of the evidence of P.Ws. 12 and 10 there hardly appears any evidence incriminating the Appellant. The circumstantial evidence is all the more weak and practically non-existent. Therefore, although we are conscious of the fact that a ghastly murder of a young person took place, we cannot hold the Appellants guilty as the perpetrators at the crime and give them the benefit of doubt. 12. In the result, the appeal is allowed. The Appellants are acquitted of the charge u/s 302 read with Section 34, IPC and be set at liberty forthwith. A.K. Padhi, J. 13. I agree. Appeal allowed. Final Result : Allowed