JUDGMENT L.C. Bhadoo, J. 1. Accused/appellant Mukesh Sahu has preferred this criminal appeal under Section 374(2) of the Code of Criminal procedure being aggrieved by the judgment of conviction and sentence dated 18-12-2000 passed by the learned First Additional Sessions Judge, Mahasamund in Sessions Trial No. 97 of 2000 by which the learned Additional Sessions Judge after holding the above accused/appellant guilty of the offence under Section 302 of the Indian Penal Code convicted him under the said Section and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 1,000/- in default of payment of fine to further undergo rigorous imprisonment for six months. 2. The relevant facts for the disposal of this criminal appeal are that on 22-10-1999 at about 7.30 a.m. Dilip Kumar Sahu gave Merg intimation (Ex. P-13) to Mahasamund Police Station to the effect that the dead body of his brother namely Santosh Sahu is lying in Laldaripara near the house of one Ansari Babu. There are head injuries on the body. Thereafter Dilip Sahu again at about 7.57 a.m. submitted a report (Ex. P-10) stating that there is some land between his house and the house of one Gyanendra Shukla situated in Santoshi Mandir, Subhash Nagar and some dispute is going on between them regarding the possession of that land. In July, 1999, some dispute took place between Gyanendra Shukla and his brother Santosh Sahu and regarding that some proceeding is pending in the Court of Sub Divisional Magistrate. Since then Gyanendra Shukla was continuously talking about the murder of Santosh Sahu. This fact is also known to Raja Khan and Raju Makkad. On account of this animosity, Gyanendra Shukla after conspiring with Mukesh Sahu who is a man of criminal character got murdered his brother through Mukesh Sahu and the dead body of his brother is lying near the house of Ansari Babu. On this report, First Information Report (Ex. P-12) was registered. The Station House Officer took up the investigation and went to the scene of occurrence. He prepared Panchanama (Ex. P-3) of the dead body of the deceased and vide Ex. P-28-A requested for the post mortem of the dead body and the post-mortem report (Ex. P-20) was received. The plain earth as well as the blood stained earth was recovered from the place of incident vide Ex. P-3. He prepared Panchanama (Ex. P-3) of the dead body of the deceased and vide Ex. P-28-A requested for the post mortem of the dead body and the post-mortem report (Ex. P-20) was received. The plain earth as well as the blood stained earth was recovered from the place of incident vide Ex. P-3. During the investigation and under the police custody on 22-10-1999 accused Mahesh Sahu gave a memorandum (Ex. P-5) under Section 27 of the Indian Evidence Act that he can get recovered the stone which he used for the murder of Santosh Sahu. At the instance of the accused at 4.40 on the same day near the scene of occurrence a stone was recovered vide Ex. P-6 which was lying under the margosa (Neem) tree. A full-shirt, full-pant, underwear, baniyan, socks and shoes of the accused were also taken into possession vide Ex. P-7. The seized stone weighing 27.70 kilograms and the clothes of the accused were sent for chemical examination vide Ex. P-21 to the Forensic Science Laboratory, Raipur and a report (Ex. P-24) was received from the Laboratory. The seized articles were sent to Calcutta for serological examination and as per the report of the serologist human blood was found on the full-shirt, full-pant, baniyan and the stone. After completing the investigation and recording the statements of the witnesses, charge-sheet was filed against the accused/appellant. 3. Learned Additional Sessions Judge framed the charge against the accused/appellant who denied the charge. The prosecution in order to prove the offence against the accused/appellant examined in all twenty witnesses at the trial. The statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which either he said that he does not know or denied the statements of the witnesses and said that his pant was not seized nor any stone was seized at his instance and about the injuries on his body he explained that on account of the boiling water the blister was in his body. 4. After hearing the Public Prosecutor and the learned Counsel for the accused/appellant the learned Trial Court delivered the impugned judgment. 5. We have heard Shri Sunil Sinha, learned Counsel for the accused/appellant and Miss Sharmila Singhai, learned Dy. Govt. Advocate, for the State/respondent. 6. 4. After hearing the Public Prosecutor and the learned Counsel for the accused/appellant the learned Trial Court delivered the impugned judgment. 5. We have heard Shri Sunil Sinha, learned Counsel for the accused/appellant and Miss Sharmila Singhai, learned Dy. Govt. Advocate, for the State/respondent. 6. As far as the question of nature of death of deceased Santosh Sahu is concerned, learned Counsel appearing for the accused appellant has not disputed the nature of the death as homicidal. Apart from that Dr. Ghanshyam Chandrakar (P.W. 18) has stated in his statement that on 22-10-1999 he was Senior Medical Officer in the Civil Hospital, Mahasamund. On that day at 10.30 a.m. he conducted the autopsy on the dead body of deceased Santosh Sahu. His report is Ex. P-20. During the post-mortem the following injuries were found on the person of the deceased :-- (a) Lacerated wound 3 cm x 1 cm x 1 cm on the left tempo parietal region. (b) Lacerated wound 6 cm x 1 1/2 cm x 1 cm on the left tempo parietal region which was red in colour. (c) Lacerated wound 1/2 cm x 4 cm x 4 cm near the left ear. This injury was also red in colour. (d) Lacerated wound 1/2 cm x 1/2 cm x 1/2 cm on the right ear which was also red in colour. (e) There was depressed fracture on tempo parietal frontal region on left side measuring 5 cm x 5 cm. 7. The skull bone was fractured in many pieces. There was multiple fractures on the base of the skull. Brain was congested and the clotted blood was present. All the injuries were ante- mortem in nature which could be caused by hard and blunt object. The cause of the death was coma and shock due to severe head injury causing cardio respiratory failure. Therefore, in view of the above statement of the doctor, it is proved that the nature of the death of the deceased was homicidal. 8. As far as the involvement of the present accused/appellant in the murder of deceased Santosh Sahu is concerned, in this case there is no eye-witness. The only eye-witness is Baldau (P.W. 17) and he has turned hostile and not supported the case of the prosecution. 8. As far as the involvement of the present accused/appellant in the murder of deceased Santosh Sahu is concerned, in this case there is no eye-witness. The only eye-witness is Baldau (P.W. 17) and he has turned hostile and not supported the case of the prosecution. He has said that deceased Santosh met him two days before his death and on that day he had not seen anybody with the deceased. How Santosh Sahu died he does not know. He has said that Santosh was lying on the corner of the road and the blood was oozing out of the body. Therefore, the whole case of the prosecution rests on the circumstantial evidence and in order to prove the offence against the accused/appellant based on circumstantial evidence the prosecution has to prove as per the settled principle by the Hon'ble Apex Court that in a case based on circumstantial evidence, before the Court can record conviction, it must satisfy itself the circumstances from which an inference of guilt could be drawn have been established by unimpeachable evidence led by the prosecution and that all the circumstances put together are not only of a conclusive nature but also complete the chain so fully as to unerringly point only to the guilt of the accused and are not capable of any explanation which is not consistent with the hypothesis of the guilt of the accused. It is on the basis of these principles that we shall examine the circumstantial evidence relied upon by the prosecution in this case. 9. Now we shall examine the circumstantial evidence adduced by the prosecution in the present case which are as follows :-- (a) The accused and the deceased were seen together before the death of the deceased. (b) The weapon of offence - the stone was recovered at the instance of the accused/appellant. (c) The human blood was found on the clothes of the accused. 10. As far as point No. (a) is concerned, Raghunath (P.W. 1), Pooran (P.W. 7) and Inderman (P.W. 12) are the witnesses who saw the accused and the deceased together before the occurrence. Raghunath (P.W. 1) has stated in his statement that he does not know Santosh Sahu. 11/2 - 2 months before his statement at about 10 p.m. he closed the canteen and when he came out from the canteen, Pooran Rikshawwala met him. Raghunath (P.W. 1) has stated in his statement that he does not know Santosh Sahu. 11/2 - 2 months before his statement at about 10 p.m. he closed the canteen and when he came out from the canteen, Pooran Rikshawwala met him. Thereafter when he and Pooran were going towards the house Pooran said that let us consume liquor. On this, he along with Pooran went to the Bhatti. The accused was standing there in a drunken condition. When he and Pooran were coming back after taking liquor the accused snatched the liquor from them and also beat them, then he along with Pooran ran away from that place. When accused Mukesh had scuffle with them he was alone. After declaring this witness hostile, the Public Prosecutor cross-examined him and in the cross-examination he has said that the second day the police told him that Santosh has been murdered. The police people took him after beating. He did not give the statement (Ex. P-1) to the police. Pooran (P.W. 7) has said that on the fateful day he along with Raghunath went to Bhatti for taking liquor. He saw that the accused was beating Raghunath. Thereafter he went to his rescue and thereafter they left for their residence. This witness has also been declared hostile and he has denied that he gave the statement (Ex. P-9) to the police. Inderman (P.W. 12) has said that he knows deceased Santosh since last 18-20 years. Santosh met him eight days before his death and at that time there was nobody with Santosh. After declaring this witness hostile, learned Public Prosecutor cross-examined him. In Para 4 of the cross-examination he has said that he informed the police that deceased Santosh and Mukesh came to Bhatti for consuming liquor. But he did not give Part A to A of the statement (Ex. P-11). Second day he came to know about the death of Santosh. His statement that he met Santosh eight days before is correct. He saw Santosh last time when he came to consume the liquor at the Bhatti. In Para 7 of his cross-examination he has said that he saw deceased Santosh at Bhatti at about 9 - 9.30 in the night. At that time nobody was with Santosh. His statement that he met Santosh eight days before is correct. He saw Santosh last time when he came to consume the liquor at the Bhatti. In Para 7 of his cross-examination he has said that he saw deceased Santosh at Bhatti at about 9 - 9.30 in the night. At that time nobody was with Santosh. Therefore, this statement of this witness can not be relied upon because at one stage he says that he saw the accused and the deceased at Bhatti of the liquor. On the other hand, he says that he had not seen anybody with Santosh and other two witnesses namely Raghunath (P.W. 1) and Pooran (P.W. 7) have also turned hostile. Therefore, all the three above witnesses of last seen the deceased with the accused have turned hostile. On this point Dilip Kumar Sahu (P.W. 13) who is the brother of the deceased in Para 3 of his statement has said that on Wednesday deceased Santosh came to him along with mother and he demanded Rs. 2,000/- and said that he is going along with Mukesh Sahu to bring the vegetables. On this, he gave Rs. 2,000/-to him. In the evening the accused came and took Santosh along with him. When next day he enquired from the accused about the whereabouts of Santosh then he did not reply. Thereafter, Baldau came and informed that his brother Santosh is lying after consuming the liquor. Next day on Friday his mother informed him that Santosh is lying dead in Laldaripara. He saw the body of Santosh. Thereafter he came to his house where his mother and father were standing. At that time the accused came there and informed that why you are not lodging the report against the doctor, Santosh has been murdered. On this, he went to the police station and lodged the report (Ex. P- 10). In the cross-examination he has said that it is correct that the accused had not said that he murdered Santosh at the instance of Gyanendra Shukla. The report (Ex. P-10) was written in the night at about 9.45 to 10. The report was written by one Mr. Mohanti. He did not read the report. He reached the police station in the morning and he remained in the police station till 12.00 in the night and the police had enquired from Mukesh. The report (Ex. P-10) was written in the night at about 9.45 to 10. The report was written by one Mr. Mohanti. He did not read the report. He reached the police station in the morning and he remained in the police station till 12.00 in the night and the police had enquired from Mukesh. In Para 9 of his statement he has said that the night on which Santosh was murdered, accused Mukesh, Baldau and Santosh were together. But Santosh did not return in the night. Next day morning Mukesh came and informed that you lodge the report against Gyanendra Shukla because Santosh has been murdered. Chedilal (P.W. 11), father of deceased Santosh, has stated in Para 2 of his statement that in the morning at about 7.00 the accused came to his house and informed that Gyanendra Shukla has got murdered his son. He also confessed that he had murdered his son. The accused tried to run away but the police caught him. In Para 5 of his statement in the cross-examination he has said that the accused came at 7.00 in the morning and informed him, at that time his sons Dilip and Ashok were in the house, and thereafter he also informed these things to his sons Dilip and Ashok. On the information given by the accused he came to know about the death of Santosh. The statements of these witnesses inspire no confidence because in the first instance Chhedilal (P.W. 11) has said that the accused admitted guilt before him and that he informed his sons Dilip and Ashok; whereas Dilip has said that the accused had never confessed the crime before him or his father. Therefore, the statement of P.W. 11 is exaggerated and this statement has also not been believed by the Trial Court. As far as the statements of Dilip (P.W. 13) and Manoj (P.W. 14) are concerned that they saw the deceased with the accused in the previous evening which is also not believable. If that was the fact then why that thing was not mentioned in the First Information Report (Ex. As far as the statements of Dilip (P.W. 13) and Manoj (P.W. 14) are concerned that they saw the deceased with the accused in the previous evening which is also not believable. If that was the fact then why that thing was not mentioned in the First Information Report (Ex. P-13) which was given by Dilip (P.W. 13) and he has said that the report was given only after the accused informed about the death of the deceased and it is also not believable that as to why the accused will come to them and say that Gyanendra Shukla has got murdered the deceased, so he lodged the report against Gyanendra Shukla. But as per the prosecution Gyanendra Shukla was the person who hired the accused and got Santosh Sahu murdered. Therefore, these statements are exaggerated. Even otherwise lodging of the First Information Report itself creates a doubt because in the first instance Dilip gave the report (Ex. P-13) and thereafter he gave the report (Ex. P-10) and the Investigating Officer Mr. Hariom Gupta has said that Ex. P-10 was given at 7.55 a.m.; where as Dilip Kumar Sahu has himself said that the report (Ex. P-10) was given in the night at about 9.45 -10.00. Moreover, this report has been hand written of one Mr. Mohanti and he has said that whatever dictation was given by the Police Officer he had written in the report and the report was not written as per the statement of Dilip Kumar Sahu. Therefore, the time of Ex. P-10 and the genuineness of this report is in serious doubt. The prosecution has tried to conceal the genesis of the crime. The prosecution has tired to conceal rather than revealing the true facts. Therefore, the prosecution has not been able to prove the last seen theory of the deceased with the accused before his murder. 11. The learned Trial Court has relied on the fact that certain injuries were found on the body of the accused. But it has come on record that the accused had scuffle with Raghunath (P.W. 1) and Pooran (P.W. 5) and the injuries on the persons of those witnesses have also been found which has been proved by Dr. N.K. Mandape (P.W. 16). Therefore, the injuries found on the person of the accused might have been caused during the scuffle with Raghunath. N.K. Mandape (P.W. 16). Therefore, the injuries found on the person of the accused might have been caused during the scuffle with Raghunath. On account of these injuries, the inference can not be drawn that the same were sustained by the accused while murdering Santosh. 12. As far as the recovery of weapon of offence - the stone at the instance of the accused is concerned, all the witnesses have said that the stone was lying in an open place at a distance of ten to twenty feet of the dead body and everyone has assembled at the scene of occurrence and lot of persons were present there. Even the witnesses to the recovery of stone namely Bharatlal Chandrakar (P.W. 4) and Doulat Sahu (P.W. 5) have turned hostile. Bharatlal Chandrakar has said that in his presence the accused gave a memorandum (Ex. P-5) to the police on the basis of which the stone was taken into possession vide Ex. P-6. In cross-examination he has said that the stone was lying 15-20 feet away from the dead body of the deceased. Doulat Sahu (P.W. 5) has also said that the stone was lying 10 feet away from the body of the deceased. In Para 13 of the statement he has said that the stone was lying on the open place. Even the brother of the deceased namely Manoj (P.W. 14) in Para 15 of the statement has said that the stone was lying in the open place. Therefore, looking to the statements of these witnesses it can not be said that the stone was only within the knowledge of the accused and it was recovered at his instance. Therefore, on the basis of the recovery of the stone the accused can not be connected with the murder of the deceased. 13. As far as the fact that human blood was found on the stone and the clothes of the accused is concerned, in the circumstances, if the blood group of the deceased and the blood found on the clothes of the accused is not same, it can not connect the accused with the murder of the deceased. There is no evidence that the human blood found on the clothes of the accused and the blood group of the deceased was the same. So is the case of the stone. There is no evidence that the human blood found on the clothes of the accused and the blood group of the deceased was the same. So is the case of the stone. Therefore, the recovery of the stone and blood found on the clothes of the accused are also of no help to the prosecution and this can not connect the complicity of the accused with the crime. 14. In view of the above, the prosecution has utterly failed to prove the offence against the accused appellant based on the circumstantial evidence as per the principles laid down regarding the circumstantial evidence. Therefore, the conviction recorded by the learned Trial Court against the accused appellant under Section 302 of the Indian Penal Code can not be sustained. 15. In the result, the appeal of the accused appellant is allowed. The judgment dated 18-12-2000 of the Trial Court convicting the accused appellant under Section 302 of the Indian Penal Code is set aside and the accused appellant is acquitted of the charge levelled against him. He be set liberty forthwith if not required in any other case.