JUDGMENT P. K. TRIPATHY, J. — The case at hand is an example of a perfunctory investigation and pandour prosecution giving benefit to the accused inasmuch as after hearing the parties at length and scanning the evidence, we feel that the accused is entitled to the benefit of doubt and order of acquittal for the offence under Section 302 I.P.C. though dead body of the deceased was recovered from his possession after allegedly they were last seen in the preceding night i.e. in the night of occurrence. In that respect we set forth the reason as noted hereinafter. 2. Facts which are not in dispute may be noted at the outset. Minaketan son of P.W. No.12 is the deceased and he suf¬fered a homicidal death in the night between 2nd and 3rd January, 1994. His dead body was recovered at the instance of the police from the residential premises of the accused/appellant. That room was under lock and key by the time police visited and on being compelled by the police appellant unlocked the door and thereaf¬ter the dead body with multiple bleeding injuries caused by sharp cutting weapon was recovered from that room. In course of inves¬tigation, it was ascertained by the I.O. (P.W. No.13) that the occurrence of assault initially took place in the up-stair room, locally called in the locality as ‘Dhaba’. The deceased had suffered a homicidal death as per the Post Mortem report (Ext.9) and evidence of P.W. No.7 and that there were as many as five sharp cutting injuries on the head and the face of the deceased. The further admitted circumstance is that the family of the deceased was running a betel-cum-cloth shop and there was theft of new clothing from that shop in the night of occurrence and those were recovered at the instance of the co-accused persons, one of whom is none other than the mother of the accused. After discovery of the dead body, the enraged villagers attacked and assaulted the accused in presence of the police and caused bleed¬ing injuries on his head and face. Accused was taken to the hospital for treatment and his wearing apparel and nail clippings were seized. During investigation, blood stained and sample earth were seized along with the skull of the deceased as well as the wearing apparel of the accused and such material objects were sent for serological test and chemical analysis. Accused was taken to the hospital for treatment and his wearing apparel and nail clippings were seized. During investigation, blood stained and sample earth were seized along with the skull of the deceased as well as the wearing apparel of the accused and such material objects were sent for serological test and chemical analysis. It appears from the report of the serologist (Ext.24) that human blood of Group-'O' was found from the blood stained cement floor, skull of the deceased, Katar (M.O.II) i.e. the weapon of offence and nail clippings of the accused so also the attachee cover. 3. According to the prosecution, in the occurrence night while the deceased was sleeping in his shop room along with P.W.No.1- Surendra Bag, a servant working in his house, the accused came and called the deceased and after some discussions both of them went together. Before leaving that shop room, de¬ceased locked the shop room from outside by allowing P.W. No.1 to sleep inside the shop room. On the following day morning, P.W. No.12 came and opened the lock of the shop room by the help of duplicate key and as a result of that, P.W. No.1 could come out from the shop room and informed to P.W. No.12 that deceased had gone with the accused in the previous night. Since the deceased had not returned to home, P.W. Nos. 1 and 12 went to the house of the accused to ascertain the whereabouts of the deceased. Accused pleaded his ignorance and also denied to the allegation that in the previous night, he had called the deceased. P.W. No.12 there¬after went to his son-in-law (P.W. No.11) in another village to ascertain if the deceased had gone to his house and getting the negative answer therefrom P.W. Nos. 11 and 12 went to the police station at Bhatli and lodged the missing report. P.W. No.13 immediately accompanied them and came to the occurrence village and examined P.W. No.2 and few others and thereafter went and examined the accused. When he visited the house of the accused, he found that from out of the two-roomed house of the accused, one room was under lock and key. On being insisted by P.W. No.13 the accused opened that room and dead body of the deceased was found there. It is stated by P.W. Nos. When he visited the house of the accused, he found that from out of the two-roomed house of the accused, one room was under lock and key. On being insisted by P.W. No.13 the accused opened that room and dead body of the deceased was found there. It is stated by P.W. Nos. 1, 11, 12 and 13 consist¬ently that accused advanced them plea of non-availability of the key but because of the insistence of the police he ultimately un¬locked the door by bringing the key from his trouser pocket. Dead body of the deceased was found lying with the mark of bleeding from the injuries. On being questioned by P.W. No.13 as noted in the case diary, the accused made a statement implicating some persons. The case diary available on case record does not contain such statement of the accused. Learned Standing Counsel also states that he does not possess a copy of such statement of the accused. Though in the case diary P.W. No.13 has noted that along with the accused he went to different places to find out the persons named by the accused, but the case diary does not reveal who were those persons and in what manner they were interrogated and what was their statements. After the discovery of the dead body people of the locality were gathered there in front of the house of the accused, they could not control their emotions and as¬saulted the accused causing three bleeding injuries on his body. After finishing the routine investigation relating to inquest and seizures of the incriminating articles P.W. No.13 along with the accused went to the P.H.C. where P.W. No.6 was given treatment and they also went to different places for tracing out the per¬sons named by the accused. On completion of investigation P.W. No.13 submitted the Charge Sheet against the appellant and three others for the offence under Sections 302 and 201 read with Sections 457/380/411 and 414 I.P.C. 4. Learned Additional Sessions Judge, Baragrah (trial Court) on perusal of the materials on the case diary, framed charge under Sections 302/201/457/380 I.P.C. against the appel¬lant and one Dia @ Mahipal Kusmia. He also framed the charge under Section 411 I.P.C. against co-accused Sanatan Sahu and under Section 414 I.P.C. against Rajkumar Majhi. The accused persons denied to the charge and claimed for trial. Their plea was that of complete denial. 5. He also framed the charge under Section 411 I.P.C. against co-accused Sanatan Sahu and under Section 414 I.P.C. against Rajkumar Majhi. The accused persons denied to the charge and claimed for trial. Their plea was that of complete denial. 5. To substantiate the aforesaid charges against the ac¬cused persons prosecution examined as many as 13, out of 23 charge-sheeted witnesses. Out of them, P.W. No.1 Surendra Bag is the servant who had slept in the shop room of the deceased in the occurrence night and he was also a witness to the conduct of the accused/appellant on the following day at the time of discovery of the dead body. P.W. No.11, Gopal Panda is the brother-in-law of the deceased (sister’s husband). According to the prosecution, he witnessed the recovery of the dead body. P.W. No.12, Budhadeb Das is the informant and father of the deceased. Like P.W. No.1, he is also a witness to the conduct of the accused and discovery of the dead body. P.W. No.13, Sri H.S. Mishra, is the Investigat¬ing Officer who discovered the dead body,conducted the investiga¬tion and completed the same. In addition to the aforesaid evi¬dence, prosecution also relied on the evidence of P.W. No.2 Uttam Meher, P.W. No.3 Satyaban Panda, P.W. No.4 Deba Charan Sahu, P.W. No.5, Gajaraj Pradhan and P.W. No.10 Mahadev Naik. They are the witnesses, in whose presence P.W. No.13 made discovery of the dead body, inquest and seizure of incriminating articles. P.W. No.6, Dr. Harihar Prasad Parida is the doctor who examined the appellant and granted the Injury certificate, Ext.8. P.W. No.7, Dr. Prasanta Kishore Dash is the doctor who held autopsy on the dead body of the deceased and proved the Post mortem report, Ext.9 and testified that such injuries are possible by KATRA -M.O. II. P.W. No. 8, Jayanta Muduli is the photographer, who on police requisition, took photos of the deceased vide the negative film, Exts. 10 to 10/3 and the positives, Exts.11 to 11/3. P.W. No.9, Prahalad Sahu is a police constable. He was present at the time of discovery of the dead body in the house of the appellant. As per the command certificate, Ext.12, he escorted and identi¬fied the dead body at the time of Post mortem examination and also proved the Station Diary Entry Nos. 44 and 45 as Exts.13 and 14. 6. He was present at the time of discovery of the dead body in the house of the appellant. As per the command certificate, Ext.12, he escorted and identi¬fied the dead body at the time of Post mortem examination and also proved the Station Diary Entry Nos. 44 and 45 as Exts.13 and 14. 6. Exts.1 to 4,6,7,15 and 22 are the different seizure lists prepared during the course of investigation including seizure of the blood stained and sample cement floor, bottles with smell of liquor, clothing with bloodstained wearing apparels of the accused and wearing apparel of the deceased besides the new clothes said to have been stolen from the shop room of the deceased. Exts.16 and 17 are the zimanama executed by P.W. No.12 by taking zima of seized new clothings. Ext.20 is the report of the Scientific Officer who visited the spot both in the up-stair and the ground floor. Ext.5 is the Inquest Report and Ext.21 is the dead body challan, Exts.25 to 25/6 are some more negatives and Exts. 26 to 26/6 are some more photographs of the occurrence house. Ext.18 is the F.I.R. drawn by P.W. No.13. Ext.23 is the forwarding letter to the S.F.S.L. and Ext.24 is the report from the S.F.S.L. That is the total evidence adduced by the prosecution to substantiate the charges against the appellant and the co-accused persons. 7. Admittedly there is no eye-witness to the occurrence. Therefore, the case of the prosecution is based on circumstantial evidence. So far as the offence under Sections 302 and 201 I.P.C. is concerned, prosecution relied on the circumstances of (i) last seen theory and (ii) recovery of the dead body of the deceased while it was in custody of the accused. So far as the offences under Sections 457/380/411 and 414 I.P.C. are concerned, they relied on the circumstance of recovery of the stolen articles on being giving discovery by the concerned accused persons. Prosecution also relied on the documentary evidence out of which the relevant seizure list, Ext.15 (wearing apparels of the ac¬cused) and report from the S.F.S.L. (Ext.24) are relevant. Like other oral evidence so also other documentary evidence may be referred to whenever found relevant in proof of the circumstan¬tial evidence. The weapon of offence is marked as M.O.II, wear¬ing apparels as M.Os. V and VII, the Chappal and shawl of the deceased have been marked as M.Os. Like other oral evidence so also other documentary evidence may be referred to whenever found relevant in proof of the circumstan¬tial evidence. The weapon of offence is marked as M.O.II, wear¬ing apparels as M.Os. V and VII, the Chappal and shawl of the deceased have been marked as M.Os. III and I. The conditions of the house wherefrom the dead body was recovered was photographed and as noted above, the negatives and the positives have been marked Exts.25 and 26 series. 8. On assessment of evidence on record and keeping in view the facts and circumstances involved in the case, trial Court found the other accused persons not guilty of the offences charged against them because of lack of proof. However learned Addl. Sessions Judge found the circumstances of last seen theory and discovery of the dead body given by the appellant as suffi¬cient to prove the offence under Sections 302/201 I.P.C. against him. Accordingly, by acquitting others learned Addl. Sessions Judge convicted the appellant for the offence under Sections 302/201 I.P.C. For the offence under Section 302 I.P.C. he im¬posed the sentence of imprisonment for life and for the offence under Section 201 I.P.C. he imposed sentence of rigorous impris¬onment for two years. 9. Miss Dipali Mohapatra, learned counsel appearing for the appellant (being appointed from the legal aid panel) argues that circumstantial evidence utilized against the appellant are not clinching enough to fasten the order of conviction on him because there remains many ‘ifs’ and ‘buts’ to be satisfied by the prose¬cution so as to complete the chain of circumstances against him for the alleged crime. Her contention is that the fact of appel¬lant was last seen with the deceased and the dead body of the deceased was received from the custody of the appellant are not enough to state that he is the culprit when the evidence of P.W. No.1 is very much doubtful and the case of prosecution relating to stealing of the clothes like sarees, napkins etc. from the shop room in the occurrence night, remains proved but no further connecting evidence is there to give a clear picture on that score, vis-a-vis role of P.W. No.1 and the other persons whose names have been mysteriously omitted from the case diary. from the shop room in the occurrence night, remains proved but no further connecting evidence is there to give a clear picture on that score, vis-a-vis role of P.W. No.1 and the other persons whose names have been mysteriously omitted from the case diary. She further argues that after he sustained the bleeding injuries and there is no evidence on record that by the time of assault on the deceased, appellant was wearing those clothing and there is nothing on record to indicate that accused does not possess ‘O’ group blood, i.e., similar to the blood group of the deceased. Similarly, notwithstanding seizure of the bottles from the spot of occurrence in the ‘Dhaba Ghara’ and other articles from the occurrence room, the investigating agency did not try to ascer¬tain about tracing of the finger prints to trace out if that being the finger prints of the accused and deceased and the other persons said to have been named by the appellant during interro¬gation by P.W. No.13. Therefore, in the given facts and circum¬stances, beyond the offence under Section 201, I.P.C. prosecution has not been able to prove the case of homicide having been committed by the appellant. 10. Mr. A. K. Mishra, learned Standing Counsel on the other hand argues at his best to emphasise on the prosecution theory relating to the guilt of the accused only on the aforesaid two circumstances of last seen theory and recovery of the dead body from the possession of the accused. His argument is that, not¬withstanding the aforesaid lacunae pointed out by the appellant, yet the aforesaid two circumstances are sufficient to warrant conviction against the appellant for the offence under Sections 302/201, I.P.C. 11. Both the parties have read the evidence of each of the witnesses in support of their respective argument. As noted earlier, when the evidence of the rest of the witnesses are relating to discovery of the dead body and the subsequent follow up action taken in the process of investigation, the evidence of P.W. No.1 is relating to the last seen theory. As noted earlier, when the evidence of the rest of the witnesses are relating to discovery of the dead body and the subsequent follow up action taken in the process of investigation, the evidence of P.W. No.1 is relating to the last seen theory. According to P.W. No.1, in the night at about 11 P.M. accused came to the shop room and called the deceased and on the request of the accused the deceased left with him after locking the shop room from outside and it is in the following day morning that P.W. No.12 came and unlocked the shop room and opened the door. If that is the case of the prosecution, then that does not fit in to the case relat¬ing to commission of theft in the occurrence night by making lurking house trespass in night. P.W. No.1 nowhere has stated that in the occurrence night there was theft in the shop room. No other evidence is forthcoming on record that a theft was commit¬ted in the shop room in the occurrence night. Nonetheless clothes like sarees, lungis and napkins were given discovery by the co-accused persons of the appellant. The circumstance made out therefrom either goes to indicate that in the theft either P.W. No.1 was an associate or accomplice. Otherwise there could not have been missing of articles from the shop room in the occurrence night without the knowledge and/or consent of the P.W. No.1. Notwithstanding that, prosecution has not tried to bring the real fact on record and thereby creating a doubt about the truthfulness of P.W. No.1 to account for the whole occurrence that took place in the occurrence night. When, according to the prosecution, one key of the shop room is retained by P.W. No.12 and the other was in possession of the deceased, the opening of the lock and removal of the articles from the shop room does not clinchingly fit into the theory of last seen theory. In other words, either the deceased himself had come and opened the door by unlocking or else it was taken away from him by the accused or by some other culprits to remove the articles from the shop room. In either case that could not have escaped the knowledge of P.W. No.1. In other words, either the deceased himself had come and opened the door by unlocking or else it was taken away from him by the accused or by some other culprits to remove the articles from the shop room. In either case that could not have escaped the knowledge of P.W. No.1. Attempt of the prosecution to suppress that part of the real fact therefore does not render the evidence of P.W. No.1 credible regarding the last seen theory, as advocated by the prosecution. 12. In the course of Cross-examination it has been admitted by P.W. No.13 that in course of the investigation he did not ascertain who else resides with the accused in the occurrence house. As stated by P.W. Nos. 11, 12 and 13 that when P.W. No.13 wanted the accused to unlock the door of the room (where the deceased had been kept), the appellant pleaded that the key was with his elder brother, though later on he opened that lock. That goes to indicate that besides himself his elder brother also resides in that house. Once the presence of other male persons in that house is made possible, then it cannot be said unhesitating¬ly that because the dead body of the deceased was found in the house of the accused, therefore, he alone and none else could have been the author of that crime. Under the given facts and circumstances many possible theories surface on the ground of probabilities. One of the probabilities is that accused killed the deceased and concealed him in the room locked by him. The other probability is that the other near relatives like his elder brother killed the deceased and the appellant lent a helping hand by concealing the same. The second probability, under the follow¬ing facts and circumstances, does not appear to be utopian or imaginary, because, according to the prosecution the deceased was attacked and assaulted in the upstairs’ room (Dhaba Ghara). The Investigating Officer, during spot visit, found the marks of sprinkle of blood on the floor and wall of that upstairs room. Thereafter the dead body was removed to the room where it was discovered. It is also in the evidence of P.W. No.13 and the other witnesses that the floor was blood soaked in the room where the dead body was discovered. Thereafter the dead body was removed to the room where it was discovered. It is also in the evidence of P.W. No.13 and the other witnesses that the floor was blood soaked in the room where the dead body was discovered. In other words, after inflicting injury in the upstairs room before or after the death, the de¬ceased was removed in bleeding conditions from the upstairs room to the ground floor room. If the prosecution theory of accused as the sole assailant is believed, then prosecution is with no answer as to what were the wearing apparels of the appellants at that time. According to P.W.11, a witness to the seizure of wearing apparels of the accused, the said wearing apparels were seized at the Primary Health Centre, where appellant was taken for treatment because of the assault by the villagers. Therefore, the seized wearing apparels could not have been the wearing apparels of the accused at the time of assault on the deceased. The wearing apparels which the accused was putting on at the time of assaulting the deceased (if at all he did the same), that should have been sufficiently stained with blood if the accused removed the dead body from the upstairs room to the ground floor. The Investigating Officer visited the spots of occurrence both in the up-stair and ground floor, so also the Scientific Officer. They have not stated about presence of blood stains anywhere else. It is but natural that if the appellant after killing the deceased brought him with bleeding condition from the injuries then blood drops should have left a trail. In other words, as rightly argued by learned counsel for the appellant, the discovery of the dead body alone is not sufficient to clinchingly raise accusing finger at the appellant for the offence under Section 302, I.P.C. 13. In that context the report of the serologist, Ext.24, indicates that the blood group of the blood found from the wear¬ing apparels and nail clippings of the accused is same, i.e., ‘O’ group along with the blood group of the blood stains cement floor containing the blood of the deceased. It appears that the nail clippings were collected and the wearing apparels were seized after accused sustained bleeding injury on his head and face and therefore, possibility of the blood coming to his nail clippings cannot be ruled out. It appears that the nail clippings were collected and the wearing apparels were seized after accused sustained bleeding injury on his head and face and therefore, possibility of the blood coming to his nail clippings cannot be ruled out. That inference finds support from the other circumstance that the wearing apparels, i.e., pant (trousers) of the accused was also containing the ‘O’ group blood and the blood came on that trousers, as it appears from the narration of events, after the assault on him by the villagers. 14. There were many other lacunae from the side of the prosecution because of callous and routine investigation. The liquor bottle seized was not sent for scientific examination to trace out the finger prints. No stop was taken to trace out the foot prints and finger prints from the occurrence room, be it on the ground floor or the first floor. That gives rise to grave suspicion that what has been placed before the Court is not the whole fact. It is the admitted position on record that during interrogation accused made statement and named some persons and P.W. No.13 went in their search. For reasons best known to P.W. No. 13 such statement of the appellant and persons named by him are not noted anywhere in the case diary. In a case of this nature, when the investigating/prosecuting agency wants to submit a charge-sheet and to prosecute a person on the basis of circum¬stantial evidence, it must apply its prudence and intelligence to trace out all possible circumstances and the evidence thereof so that if a person is guilty of a heinous offence like murder, he should not get window exit because of flaw in investigation. 15. For the reasons indicated above, we do not find the circumstantial evidence available in this case sufficient to prove unfailingly the guilt of the accused for the offence under Section 302, I.P.C. and therefore, we set aside his conviction for that offence. However, we maintain the conviction under Section 201, I.P.C. for concealing the dead body and screening the offender. The sentence imposed therein, if already served (it should have been), then the appellant-petitioner be set at liber¬ty forthwith. The appeal is accordingly allowed in part. R. N. BISWAL, J. I agree. Appeal allowed in part.