B. N. DASH, J. ( 1 ) THIS appeal is directed against the order convicting the appellant under section 302 I. P. C. and sentencing him to undergo imprisonment for life. ( 2 ) THE prosecution case in brief is that on 26-6-1986 the appellant Dhenka Munda returned to his house at Kalupara from Balpahar Refractory where he was working sometime after evening and after taking dinner with other inmates consisting of his second wife Chandni Oram (the deceased), his father and his first wife and her children retired to bed. While the first wife with her children slept in one room of the house, the father slept on the verandah and the appellant and the deceased slept in another room. It is alleged that since the appellant was suspecting the questionable character of the deceased there ensued a quarrel between them sometime in the midnight where after the appellant dragged the deceased to the inner court-yard and then lifted her to the fuel shed where he killed her by severing her head from the trunk with a Tabli (M. O. III ). Thereafter, the appellant took the severed head and M. O. III to the Belpahar Police Station covering a distance of about 2 K. Ms. and produced them before the Sub-inspector of Police saying that he killed his second wife with that Tabli and that the severed head was of her. On those statements, Station Diary Entry No. 205 dated 27/6/1986 (Ext. 20) was made at 1. 45a. M. The Sub-Inspector drew up the plain paper F. I. R. (Ext. 11) at 2. 30 A. M. on his own information and then, on returning to the Police Station, drew up the formal F. I. R. (Ext. 11/1) at 4 A. M. of that night. ( 3 ) IN course of investigation the wearing apparels of the appellant, namely, Lungi (M. O. IV) and the Banian (M. O. V.) and the wearing apparels of the deceased namely, the Saree (M. O. I.) and the Saya (M. O. II) were seized. In the following morning, inquest was held separately over the head and trunk of the deceased in presence of witnesses. The trunk and severed head of the deceased were sent to the Sub Divisional Hospital, Jharsuguda where Dr. Anadi Charan Mishra (F. W. 7) conducted the autopsy. In the following morning, inquest was held separately over the head and trunk of the deceased in presence of witnesses. The trunk and severed head of the deceased were sent to the Sub Divisional Hospital, Jharsuguda where Dr. Anadi Charan Mishra (F. W. 7) conducted the autopsy. The wearing apparels of the appellant and the deceased and also the Tabli (M. O. III) were forwarded to the Director, Forensic Science Laboratory, Resulgarh through the Sub- Divisional Judicial Magistrate, Jharsuguda for examination. The report of the Chemical Examiner is Ext 18 and the Serologist's report is Ext. 19. Statements of the first wife and father of the appellant under Section 164 Cr. P. C. were recorded (wide Ext. 2 and Ext. 21 ). After completion of investigation, charge-sheet was submitted against the accused under Section 302 I. P. C. ( 4 ) WHILE admitting to have produced the severed head of the deceased and the Tabli (M. O. III) at the Belpahar Police Station, the appellant denied of having killed the deceased. His specific defence was that after his stroll at night when he returned home he found the deceased to have been cut into two pieces and thereafter he carried the severed head and the Tabli to the Police Station for reporting the incident. ( 5 ) AT the trial, the prosecution examined ten witnesses of whom P. W. 3 Kamala Munda and P. W. 9 Etue Munda are respectively the first wife and father of the appellant; P. Ws. 1 and 5 were witnesses to the inquest that took place over the severed head at the Police Station; P. W. 4 is a witness to the seizure of the wearing apparels of the appellant and Tabli at the Police Station; P. W. 6 is the witness to the inquest over the trunk of the deceased that took place at the spot; P. W. 2 is a witness who allegedly saw the appellant standing near the Belpahar Police Station holding a severed head of a human being and one blood stained Tabli; P. W. 8 is the Revenue Inspector who prepared the spot map Ext. 16; P. W. 7 and P. W. 10 are respectively the Medical Officer conducting autopsy and the Investigating Officer. Relying on the evidence of P. Ws. 16; P. W. 7 and P. W. 10 are respectively the Medical Officer conducting autopsy and the Investigating Officer. Relying on the evidence of P. Ws. 3, 5 and 9, and learned Sessions Judge found the appellant guilty of the charge and convicted and sentenced him, as already stated above. ( 6 ) P. W. 3 and P. W. 9 were said to be the eye-witnesses to the alleged occurrence but at the trial they did not support the prosecution case. However, from their evidence as also from the evidence of P. W. 5 the learned Sessions Judge brought out some circumstances and held, on the basis thereof, that the guilt of the accused had been proved beyond reasonable doubt. These circumstances are: (a) The deceased and the accused were last seen together in their bed room in the night of occurrence; (b) the conduct of the accused is not waking up his father or first wife to tell about the murder of the deceased; (c) the conduct of the accused in producing the severed head of the deceased and the weapon of offence (Tabli) at the Police Station; and (d) the conduct of the accused at the police lock-up in keeping mum when asked by P. W. 5 as to why he killed his wife. ( 7 ) THE fact that the deceased was killed by severance of her head from her trunk with the help of the Tabli (M. O. III) in the fuel-shed of the appellants house and thereafter therefore her death was homicidal has not been disputed by Mr. H. M. Dhal, the learned counsel for the appellant and, in our opinion, rightly so. His contention, however, is that excepting the third circumstance i. e. , production of the severed head and the weapon of offence at the Police Station by the appellant, the other circumstances have not been proved and, therefore, the order of conviction and sentence passed by the learned Sessions Judge is not sustainable in law. ( 8 ) IN dealing with the cases based on circumstantial evidence, it must be borne in mind that there is always the danger of conjecture or suspicion taking the place of legal proof. ( 8 ) IN dealing with the cases based on circumstantial evidence, it must be borne in mind that there is always the danger of conjecture or suspicion taking the place of legal proof. Where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first place be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Further, 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. Otherwise stated 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. (See Hanumant Govind Nargundkar and another v. State of Madhya Pradesh1 and S. P. Bhatnagar and another v. State of Maharashtra2. In Gambhair v. State of Maharashtra3, their Lordships have observed and held: The law regarding circumstantial evidence is well-settled. When a case rests upon the circumstantial evidence, such evidence must satisfy three tests; (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. All these decisions of the Apex Court have been followed by this Court in many cases including Chudiamal Jam and Another v. State of Orissa4. ( 9 ) KEEPING the aforesaid cardinal principles relating to appreciation and probative value of circumstantial evidence, we have to find out as to whether the finding of guilt recorded by the Trial Court on such evidence has been legal, reasonable and proper. ( 9 ) KEEPING the aforesaid cardinal principles relating to appreciation and probative value of circumstantial evidence, we have to find out as to whether the finding of guilt recorded by the Trial Court on such evidence has been legal, reasonable and proper. ( 10 ) AS already stated above, the circumstances relied upon by the learned Sessions Judge have been brought on only from the evidence of P. Ws. 3, 5 and 9. So the evidence of these three witnesses need careful scrutiny. P. W. 3. , the first wife of the appellant, had deposed that the accused and the deceased had no difference of any sort and that after the appellant returned from his duty at 8 p. m. the deceased served him food in the night in question. Her evidence in cross-examination is as follows: In the occurrence evening. I, the deceased, my father-in-law and the accused all returned home at about 7 p. m. where after we prepared our dinner. All of us took food together. After dinner the accused went out for a stroll as usual with him. Everyday he used to return from his stroll around mid-night. In the night of occurrence I, my father-in-law and the deceased retired to bed after the accused went out for stroll. At about mid-night the accused returned from his stroll and shouted that the deceased had been killed. But I did not come out of fear. Prior to that I have not heard any shout of anybody regarding assault to the deceased. I have not heard when the deceased shouted about assault and cried for help. Anybody can enter into our house unobstructed since there is no door leaf fitted to the doors. Police put me to threats of arrest on their arrival in my housett. ( 11 ) P. W. 9 the father of the appellant has deposed that on the night in question he consumed liquor and retired to bed on the inner verandah at about 5 p. m. A portion of his evidence in cross- examination may be usefully quoted:"i have no vision in my right eye. Even I have hazy vision in my left eye. There was heavy rain fall in the occurrence night and the whole surrounding was pitch dark. After I retired for bed in the occurrence night the accused left for Gumadera. Even I have hazy vision in my left eye. There was heavy rain fall in the occurrence night and the whole surrounding was pitch dark. After I retired for bed in the occurrence night the accused left for Gumadera. I slept under the influence of liquor after the accused left home. I did not wake up till the arrival of police and do not know what transpired during that night. " ( 12 ) AT this stage, it may be pointed out that although P. W. 3 and P. W. 9 unequivocally deposed that after the dinner the appellant left the house for a night-stroll, no attempt was made by the prosecution to show that such evidence is unreliable. The further evidence of P. W. 3 that after the night-stroll, the appellant returned home around mid-night has also remained unsheltered. ( 13 ) P. W. 5 is a witness to the inquest over the severed head of the deceased at the Police Station. According to him, on 27-6-86 at about 6 a. m. when he went to the Police Station to enquires about vehicle which the police borrowed on the previous night, he found that the accused had been lodged in the police hazat and a severed head of a female was lying at the Police Station. Having heard from the police that the appellant had brought the severed head of the deceased after killing his wife, he enquired from the accused so to why he killed his wife, but the appellant kept mum. ( 14 ) AS regards the first circumstance, there is no direct evidence that the deceased and the accused were last seen together in their bed room immediately prior to the alleged occurrence. The learned Sessions Judge has recorded a finding that the deceased and the accused were last seen together in their bed room saying that P. W. 3 has deposed that she heard the deceased shouting for help from her bed room and prior to that she heard the accused shouting that somebody had killed the deceased. On a careful examination of the evidence of P. W. 3, we find that such assertion of the learned Sessions Judge is not there on record. On a careful examination of the evidence of P. W. 3, we find that such assertion of the learned Sessions Judge is not there on record. On the other hand, the evidence of P. W. 3, as quoted in paragraph-b above, would go to indicate that she did not hear the deceased shouting about assault and crying for help before the return of the accused after a night stroll when he found the deceased to have been already killed. The evidence of P. W. 3, as quoted above, is pointedly to the effect that she as also her father-in-law and the deceased retired to their respective beds after the accused went out of the house for a night stroll and returned home around mid-night to see the deceased lying dead. Such positive evidence of P. W. 3 has not been accepted by the learned Sessions Judge because according to him, P. W. 3 retired to bed after dinner, saw the accused and the deceased retiring to their bed room and thereafter she did not come out of the room till the arrival of police. The reason assigned by the learned Sessions Judge does not appeal to us because there was every possibility for P. W. 3 to see the accused leaving the house for a night stroll remaining in her bed room particularly when there was no door leaf fitted to her bed room. The positive evidence of P. W. 9 that after he retired to bed the accused left for gumadera, which is in accord with the evidence of P. W. 3, has been disbelieved by the learned Sessions Judge in view of the evidence of P. W. 3, but what is that evidence of P. W. 3 on the basis of which he has disbelieved the evidence of P. W. 9 has not been stated. It is, thus, seen that the positive evidence of P. W. 3 and P. W. 9 that during the absence of the accused from the house for a night stroll which, as already stated above, has remained unshattered has been lightly brushed aside by the learned Sessions Judge and on a consideration of such evidence it is difficult to believe that the deceased and the accused were last seen together in their bed room immediately prior to the alleged occurrence. So according to us, the first circumstance has not at all been established. So according to us, the first circumstance has not at all been established. This conclusion is all the more reinforced when it is found that the scene of occurrence is different from the bed room and the P. W. 3 and P. W. 9, who must not be happy for the marriage of the accused with the deceased, were very much there in the house. ( 15 ) AS regards the second circumstance, there is no direct evidence either of P. W. 3 or of P. W. 9 that they were not woke up by the accused before leaving the house with the severed head and Tabli (M. O. III ). In the absence of such positive evidence, when P. W. 3, as quoted above, has stated unambiguously that on his return from night stroll at about mid-night she heard the accused shouting that the deceased had been killed, we hold that P. W. 3 must have woke up arid when her bed room was visible to the accused at the time of his leaving the house with the severed head and the Tabli (M. O. III), there was no occasion for him to wake her up. So far as P. W. 9 is concerned, he has himself deposed, as already quoted above, that he had consumed liquor before going to bed and could not know anything about the death of the deceased and that he woke up after the arrival of the police. This indicates that he was heavily drunk and therefore, the accused might not have considered prudent to wake him up. Accordingly, in our opinion, the second circumstance is of no avail to the prosecution and reliance thereon placed by the learned Sessions Judge is not correct. ( 16 ) THE third circumstance is not only proved by the I. D. but had also been admitted by the accused during his examination under Section 313 Cr. P. C. ( 17 ) AS for the last circumstance, the learned Sessions Judge had relied on the evidence of P. W. 5, as already quoted above, and in our opinion rightly to hold that the circumstance has been duly proved. P. C. ( 17 ) AS for the last circumstance, the learned Sessions Judge had relied on the evidence of P. W. 5, as already quoted above, and in our opinion rightly to hold that the circumstance has been duly proved. ( 18 ) IT is, thus, clear from the aforesaid discussion that the circumstances established against the appellant are (i) that he went to the police station with the severed head of the deceased and the Tabli (M. O. III) and (ii) that he kept mum when questioned by P. W. 5 as to why he killed his wife. The next question that arises for consideration is, whether these two circumstances unerringly connect the appellant with the commission of the crime. The answer, in our opinion, is definitely in the negative because in view of the positive evidence of P. W. 3 that the appellant had no difference of any sort with the deceased, it is quite likely that at the sight of the dead-body of the deceased he might have been quite upset which explains the aforesaid circumstances. This conclusion is all the more fortified, when there is evidence on record to indicate that any outsider was in a position to enter into the house unobstructed leading to the reasonable hypothesis that any person other than the appellant might have also killed the deceased. That being so, the finding of guilt recorded by the learned Sessions Judge can never be said to be legal, reasonable and proper and the benefit of doubt should go to the appellant. ( 19 ) IN view of our aforesaid discussion, the appeal is bound to be allowed and accordingly, we allow the same, setting aside the order of conviction and sentence passed by the learned Sessions Judge and direct that the appellant be set at liberty forthwith. Appeal allowed.