JUDGMENT : B. Panigrahi, J. - This appeal assails the order dated 18.7.1991 passed by the learned Sessions Judge, Mayurbhanj in Sessions Trial Case No. 49 of 1990 whereby the Appellant has been convicted u/s 302 of the Indian Penal Code, in short, 'IPC' for commission of murder of one Katia alias Sirish and sentenced to undergo imprisonment for life. 2. The skeletal picture of the prosecution story as depicted in the trial Court's judgment is as follows: The Appellant and the deceased were close friends and therefore, one was reposing confidence on the other. Both of them were of same age group and undertaking joint venture in brick business prior to the incident in question. In connection with the business the deceased used to visit to the house of the Appellant quite often. It. is narrated in the FIR that P.W.3. Chintamoni Behera, alongwith Sukadev Behera went to the house of Dinabandhu Mohanty (P.W.2). who is the brother of the deceased on 18.11.1989 and informed him that his younger brother Katia Mohanty was lying injured on the public road in front of the house of Sukura ' Sukadev Behera. After hearing this, the informant (P.W.2) alongwith his brother Harish Chandra Mohanty proceeded to the spot and found their brother Katia lying injured making groaning sound. They noticed bleeding injuries on the left side chest of Katia. On their query Katia replied that it was Banu ' Kamal Lochan Mohanty. who inflicted such injuries. The informant and other family members removed the injured from the place of incident to the District Headquarters Hospital around 2.30 p.m. On examination, the doctor declared Katia dead. On the basis of the information, a case was registered against the Appellant u/s 302. IPC by the O.I.C., Town Police Station. Baripada. who immediately swung into action! During investigation, he visited the spot, collected the blood-stained earth and sample earth, visited the house of the Appellant, seized the blood-stained bed sheet, quilt and some other materials, examined witnesses, held inquest over the dead-body of Katia. despatched the same for post mortem examination, and arrested the Appellant in the Police Station. Baripada. who immediately swung into action! During investigation, he visited the spot, collected the blood-stained earth and sample earth, visited the house of the Appellant, seized the blood-stained bed sheet, quilt and some other materials, examined witnesses, held inquest over the dead-body of Katia. despatched the same for post mortem examination, and arrested the Appellant in the Police Station. The Appellant while in custody is said to have made a discovery statement u/s 27 of the Evidence Act and led the police to the recovery of a knife which was subsequently marked as M.O.I. The incriminating materials were sent to the forensic laboratory for serological test and after completion of investigation, charge-sheet was placed against the Appellant. 3. The prosecution had examined only six witnesses and proved some other documents in bringing home the charges to the Appellant. 4. The circumstances which weighed with the trial Court in convicting the Appellant are enumerated hereunder: (i) The deceased soon after the occurrence and just before death made dying declaration uttering the name of the Appellant to be his assailant; (ii) The letter Ext. 1 and the pocket diary of the Appellant written in his hand-writing corroborated the prosecution story. (iii) The Appellant while in police custody made a statement to have concealed the weapon of offence, M.O.I, at Barunighat underneath a stone and so saying he led the police officer and the witnesses to that place and gave recovery of the knife which was seized u/s 27 of the Evidence Act: (iv) The blood-stained earth, and sample earth were collected from the Appellant's Court-yard, so also the bed-sheet, quilt and other materials, which allegedly contained human blood. (v) The incriminating blood-stained materials were sent to the forensic science laboratory and some of them were said to have contained human blood of 'A' origin. 5. It is well established rule in criminal jurisprudence that circumstantial evidence can reasonably be made the basis of conviction if it is of such a character that the same is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. The incriminating circumstances for being used against the accused must be such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. The incriminating circumstances for being used against the accused must be such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. In a case of circumstantial evidence, the whole endeavour and effort of the Court should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of the accused. 6. Keeping the aforesaid principle in mind, let us now advert to the facts situation placed before us in this appeal. 7. The learned Sessions Judge alter considering each of the above items of evidence led by the prosecution separately held that the Appellant was the author of the crime. 8. Undisputedly, there was no eye-witness to the occurrence. The prosecution has mainly relied upon the dying declaration alleged to have been made by the deceased Katia to P.W.2, who is his brother. 9. It is settled position of law that an accused can be convicted only on the basis of dying declaration, it such dying declaration is worthy of credence. But before accepting or rejecting the dying declaration, it must be approached with caution for the reason that the maker of the statement cannot be subjected to cross-examination. It is true that there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. Thus, Court must not look out for corroboration unless it comes to the conclusion that the dying declaration suffered from any infirmity by reason of which it was necessary to look out for corroboration. 10. Be it noted here that in this case the dying declaration has not been effected before any doctor or any independent witness, but to the brother of the deceased, who is said to have arrived after being informed by Chintamoni. P.W.3 and Sukadev Sahu. It is strange to note that although Sukadev Sahu in front of whose house the incident is alleged to have taken place and who was examined during investigation, was left out to be examined in Court. The brother of the deceased obviously is an interested person for the prosecution. It is not that the statement of Katia was otherwise clear as there existed some doubt as to the exact words. The brother of the deceased obviously is an interested person for the prosecution. It is not that the statement of Katia was otherwise clear as there existed some doubt as to the exact words. On the contrary, the definite evidence tendered by the prosecution is that P.W.3 strongly denied to the effect that the deceased made any statement to P.W.2 uttering the name of the Appellant. 11. Now, let us turn to the evidence of P.W.3. who is said to be an independent witness. He informed the brother of the deceased about the injury alleged to have been sustained by the deceased. From his statement, it has however been transpired that on the date of incident, they found the deceased Katia lying with bleeding injuries on the left side of his chest. Therefore, he alongwith one Sukadev Sahu went to the house of the deceased and informed his family members. After being so informed. P.W.2. Dinabandhu Mohanty, and other family members came to the spot. From there the injured Katia was removed to the hospital. He does not whisper a word that the deceased Katia made a disclosure that it was the Appellant who inflicted injuries on him. For refreshing memory, the prosecution also asked whether the deceased uttered the name of the Appellant which he denied. 12. Now, coming to the evidence of P.W.2. it appears that he alongwith P.W.3 and Sukadev Sahu proceeded to the place of incident and found Katia lying there. P.W.3 and Sukadev were all along present till the injured was shifted to the hospital. If the evidence of P.Ws. 2 and 3 are read together, it does not however lead to an impression that the deceased gave any such statement uttering the name of the Appellant to be his assailant. 13. From the judgment assailed before us, it has however appeared that the learned Sessions Judge has observed that since the report was lodged within hours of the occurrence, where the name of the Appellant was described, in all probabilities, he must have been the perpetrator of the crime. From the statement of P.W.2. we noticed that the distance from the place of occurrence to his house was about 400 yards. The houses of Sukadev and Chintamoni were about 150 cubits away from "his house. From the statement of P.W.2. we noticed that the distance from the place of occurrence to his house was about 400 yards. The houses of Sukadev and Chintamoni were about 150 cubits away from "his house. After seeing Katia lying injured in front of the house of Sukadev, those persons must have gone t& P.W.2's house and informed him about the injuries sustained by Katia. In the process, it could have taken at least 15 to 20 minutes by the time P.W.2 arrived at the spot. 14. Now, turning to the evidence of the Medical Officer, P.W.4, it is found that the deceased had received three injuries, one of the left side of the chest, the other on the left eye and the third was on the knee joint. From the cross-examination of the doctor, the defence was able to extract an answer that within 5 to 10 minutes after receiving the injury on the chest the injured must have lost his sense. Again there is serious doubt with regard to the place of occurrence. The injured Katia was found lying in front of the house of Sukadev Sahu which is about 200 cubits away from the house of the Appellant. Some blood-stained earth and sample earth, blood stains from the floor, bed sheet, quilt etc. were seized from the house of the Appellant. If the injuries were caused inside the Appellant's house, in all probabilities, the injured must have run away on the floor of she street. In such event, there would have been streak of blood continuing from the Appellant's house till the place where he fell down. But it is significant to note that the I.O. who was examined as P.W.6 did not whisper a word that he noticed such strip of blood. From Anr. angle, it is to be seen that at least 5 to 6 minutes would have consumed while covering a distance from the house of the Appellant to the place where Katia was lying injured. If we take all these materials into consideration, a grave doubt arises in our mind as to the fitness of the state of' mind of the deceased to make a dying declaration uttering the name of the Appellant. On considering the evidence of the medical officer, P.W.6, it is found that within 5 to 10 minutes the injured must have lost his sense. On considering the evidence of the medical officer, P.W.6, it is found that within 5 to 10 minutes the injured must have lost his sense. In such event the version of P.W.2, the brother of the deceased that Katia made a dying declaration uttering the name of the Appellant appears to be doubtful. 15. In a recent judgment of the Supreme Court in the case of Arvind Singh v. State of Bihar : 2001 (3) Supreme 570 it has been observed: Be it noted that the dying declaration herein-has not been affected before any Doctor or any independent witness but to the mother who is said to have arrived at the place only in the morning - the mother admittedly is an interested witness: though that by itself would not discredit the evidence tendered in Court but the fact remains the Doctor's evidence considering the nature of the burn posed a considerable doubt as to whether such a statement could be made half an hour before the death of the accused. It is not that the statement of the unfortunate girl was otherwise not clear or there was existing some doubt as to the exact words, on the contrary the definite evidence tendered is that there is clear unequivocal statement from the daughter of the family that the conjoint efforts of putting kerosene thereafter with lighted match stick has resulted the burn injury. The severity of the burn injury and its impact on the body speaks volume by reason of the death of the deceased. It is the reliance on such a dying declaration by the High Court shall thus have to be scrutinised with certain degree on caution. It is has also been observed: x x x x Dying declarations shall have to be dealt with care and caution and corroboration thereof though not essential as such, but is otherwise expedient to have the same in order to strengthen the evidentiary value of the declaration. Independent witnesses may not be available, but there should be proper care and caution in the matter of acceptance of such a statement as trustworthy evidence, x x x It is on record that on arrival of the mother and the brother of the deceased; they found an assembly of large number of mahalla people, but none of them were called to even have a corroboration to this part of the evidence... 16. 16. In this case there is nothing on record to establish that the injured was in a fit state of mind at the time of making such declaration. That apart, though P.W.3 is said to be present at the time the deceased made the dying declaration, has not uttered a single word about the same. The other person said to be present there was Sukadev Sahu, who, for the reasons best known to the prosecution, has not been examined as a witness. Therefore, it would be very much risky for relying upon such statement of P.W.2. 17. The only touchstone for accepting the dying declaration is that it is to be proved by the prosecution that the declarant was in fit state of mind while making such statement implicating the Appellant. There is absolutely no evidence whatsoever to come to such conclusion. The prosecution then relied upon the recovery of the incriminating materials from the house of the Appellant. In this connection an attempt has been made by the prosecution to prove the seizure through P.W.1 and the I.O. P.W.1 has however stated that the letter Ext. I was seized from the possession of the accused, wherein it is alleged that he recorded confessional statement. But since that aspect has already been disbelieved by the trial Court, we do not feel it necessary to deal with the same at great length. Even otherwise that letter does not appear to have any clinching evidence against the Appellant to connect him with the crime. 18. Learned Sessions Judge has relied upon seizure of the knife from the possession of the Appellant on the basis of disclosure statement u/s 27 of the Evidence Act. Although the knife, which was allegedly seized on production by the accused while in police custody was referred to the forensic laboratory, but it did not contain any incriminating materials. The knife is alleged to have been seized on 19.11.1989 at 8.00 p.m. from underneath a heavy stone. On examination by the scientific expert, it however did not reveal presence of any blood on the said knife. The learned Sessions Judge has observed that since there was some time gap between seizure of the knife and the commission of the crime, it was quite likely that the Appellant must have washed the knife. It is not understood where did he get such evidence. The learned Sessions Judge has observed that since there was some time gap between seizure of the knife and the commission of the crime, it was quite likely that the Appellant must have washed the knife. It is not understood where did he get such evidence. Another incriminating circumstance alleged against the Appellant is the seizure of bed-sheet and quilt containing blood stains, blood-stained earth and sample earth from inside the Appellant's house. From the evidence, it has appeared that the Appellant was hot the sole occupant of the house. Added to it although the bed-sheet contained human blood of 'A' origin which tallied with-the blood group of deceased, yet such important factor has not been put to the Appellant while his statement was recorded u/s 313, Code of Criminal procedure Mr. Panda, learned Counsel appearing for the Appellant has submitted that since such question has not been put to the Appellant while his statement was recoded, it cannot be taken to be an incriminating material against the Appellant. 19. To substantiate his submission, he relied upon the judgment reported in the case of Kanhai Mishra alias Kanhaiya Misra v. State of Bihar : (2001) 20 OCR (SC) 499, wherein the apex Court held in the following manner: x x x x In any view of the matter, this circumstance cannot be used against the Appellant as from his statement recorded u/s 313 of the Code of Criminal Procedure, it would be amply clear that this circumstance was never put to him and consequently the same cannot be used. Reference in this connection may be made to a decision of this Court in the case of Kehar Singh and Others Vs. State (Delhi Administration), . 20. Considering the totality of the facts and circumstances of the case, as discussed above, we are of the opinion that the prosecution was unable to prove the dying declaration alleged to have been made by the deceased Katia by placing credible. unimpeachable, and trustworthy evidence. Accordingly we hold that the Appellant is entitled to the benefit of doubt. 21. In the result, the appeal succeeds. The order of conviction and sentence passed against the Appellant is hereby set aside. The bail bond furnished by the Appellant is discharged. P.K. Misra, J. 22. I agree. Final Result : Allowed