JUDGMENT : 1. Appellant has preferred this appeal from jail as against the order of conviction for the offence u/s 302, I.P.C. and sentence of imprisonment for life imposed on him by learned Addl. Sessions Judge, Angul in Sessions Trial No. 63-A/21 of 2000 arising out of G.R. Case No. 149 of 2000 of the Court of S.D.J.M., Angul. 2. Prosecution case is that accused Biranchi is the elder brother and deceased Hadibandhu is the younger brother. Accused had come to the occurrence village for partition of the paternal property and was staying in the house of the family in the occurrence village, i.e., Bhagatpur. But in the night between 19th/20th March, 2000 the deceased was done to death by infliction of injuries on the head and other parts of the body. According to the allegation of the prosecution, accused dealt such blows by means of a 'Medha' (stick/lathi). According to the prosecution, P.W.5 Draupadi Munda (the sole eye-witness to the occurrence) is related to the brothers as their sister-in-law (cousin's wife), and in course of the investigation accused gave discovery of the stick (the weapon of offence) which was seized under seizure list, Ext.5. 3. It is alleged that accused requested P.W.5 not to disclose the crime before anybody and together with his wife when they were quietly decamping from the village, some female folks intimated the other villagers about the occurrence of murder and that is how the accused was detained, police was informed and after arrival of the police he was handed over to the police. It is further stated by the prosecution that in course of the investigation accused while admitting about the occurrence of assault also led to discovery of the stick which was concealed by him near a custard-apple tree and, as such, that weapon was seized under Seizure List, Ext.5. The dead body was sent for post mortem examination and the Investigating Officer also seized the other incriminating materials, such as, the wearing apparels of the deceased, blood-stain and sample earth from the spot of occurrence, the wearing apparels of the accused and sent all such materials to the State Forensic Science and Laboratory for detection of the original of blood and the group thereof. 4. To substantiate the charge u/s 302, I.P.C, prosecution examined as many as 14 witnesses. 4. To substantiate the charge u/s 302, I.P.C, prosecution examined as many as 14 witnesses. Amongst them, as noted above, P.W.5 is the sole eye-witness to the occurrence and the rest are post-occurrence witnesses. P.W.1- Ratnakar Pradhan lodged F.I.R., Ext.1 and a witness to the Inquest Report, Ext.2 and Seizure Lists, Exts.3 and 4., P.W.2- Chamar Sahu, P.W.3- Purna Chandra Dalei, P.W.6-Kanak Pradhan, P.W.7- Sardar Munda, P.W.9- Rusi Pradhan, P.W.10- Kishore Ch. Sahu and P.W.12- Dusasan Roul are the witnesses who speak that accused was caught and detained by the villagers. P.W.8- Bitangi Sahu and P.W.11 - Sapana Behera are the witnesses to seizure of the lathi under Seizure List, Ext.5, besides recording of statement leading to discovery. P.W.13 is the doctor who conducted the post mortem examination and proved the Post mortem Report, Ext.6 and the Opinion Report, Ext.7, and P.W.14 is the Q.I.C., Purankote Police Station, who was the Investigating Officer of the case. 5. Accused had taken the plea of denial but did not adduce any defence' evidence. 6. Learned Addl. Sessions Judge referring to the evidence of P.W.13, unhesitatingly recorded the findings that deceased suffered homicidal death due to the ante mortem injuries. Referring to the evidence of P.W.5 he recorded the finding that the charge of murder is proved from the unchallenged evidence of P.W.5 as an eye-witness to the occurrence. He also found the evidence of P.Ws.9 and 11 to be credible enough in support of recovery of weapon of offence under Seizure List, Ext.5. Accordingly he recorded the finding as against the accused and sentenced him to imprisonment for life. While challenging the aforesaid order, Appellant argues that the totality of the evidence which has been adduced by the prosecution may give rise to strong suspicion that the Appellant may be the assailant, but the criminal law demands proof of the charge beyond all reasonable doubt, and in this case such standard of proof is wanting and therefore accused is entitled to benefit of doubt. In that respect Appellant bring to our notice deficiency in the evidence of P.W.5, non-production of the material objects in the trial Court, non-detection of blood from the wearing apparels of the accused and the alleged weapon of offence, improper opinion of P.W.13 instating that an incised wound is possible by a stick like M.O.-1 and that the trial Court ignored all such important aspects and accepted the evidence of P.W.5 as the verses from the 'Veda'. Accordingly he argues for granting benefit of doubt and acquitting the accused. 7. Learned Standing Counsel on the other hand vehemently argues supporting the order of conviction and repelling the contention of the Appellant. He argues that when the fact of both the brothers living under the same roof in the occurrence night is not disputed, then the circumstance of one brother lying dead due to injuries is sufficient to prove that the other brother is the author of the injuries and more so when their was a demand of share. He further argues that evidence of P.W.5 as eye-witness to the occurrence of assault was not challenged in course of the cross-examination, recovery of the weapon of offence is not disputed and the accused could be caught when he made attempt to escape after committing the crime. He also argues that absence of blood stain in the weapon of offence or the wearing apparels of the accused does not in any help the accused so as to raise a plea of benefit of doubt. He also argues that non-production of the weapon of offence in course of the trial cannot be a ground to grant any advantage to the accused when it is the settled ratio that non-recovery of the weapon of offence need not be adversely viewed when the facts and circumstances of the case are proved by better evidence. In that respect he relies on the cases of Umar Mohammad and Ors. v. State of Rajasthan 2008 (1) Crimes 92 (SC). 8. After going through the evidence and other materials on record, we find that the order of conviction is much heavier than the weight of evidence available in favour of the prosecution notwithstanding evidence of P.W.13 is good enough to prove homicidal death of the deceased. The reasons thereof are stated hereinafter while considering the points raised by each of the parties in support of their respective contentions. 9. The reasons thereof are stated hereinafter while considering the points raised by each of the parties in support of their respective contentions. 9. Dead body of the deceased was despatched to the district headquarter hospital at 1.30 p.m. on 20.03.2000. Post mortem examination was conducted at 7.30 a.m. on 21.03.2000. P.W.13 found stain was present regarding bleeding from nose and right ear and that the deceased had suffered: (i) Lacerated wound 1" ? ?" ? 1/10" on the pinna of right ear. (ii) Incised wound 1 ?" ? ?" ? bone deep on the left forehead just above the left eye, frontal bone under the wound is fractured. (iii) Bruise 2" ? 2" left side of neck. (iv) Abrasion 1" ? ?" right leg just below the knee anteriorly. (v) Abrasion on the left knee 1" ? 1". (vi) Abrasion 1" ? 1" on right elbow. (vii) Abrasion 1" ? 1/2" left elbow. Though it has not been specifically mentioned, but we understand that after dissection of the dead body it was found by P.W.13 that the membrane was ruptured, brain matter had come out and cerebral hemorrhage was present in both the parietal lobes. He found the cause of death to be shock and hemorrhage produced from the head injury. According to the doctor, the injuries were sufficient to cause death of the deceased in ordinary course of nature. On examining the stick (alleged weapon of offence) he opined that, "it may cause lacerated wound." But, however, as the stick was having a broken portion of edges, therefore there was possibility of incised wound on forehead by that stick and that he gave the Opinion Report, Ext.7 accordingly. Therefore, the said evidence, whether challenged or not, is good enough to prove the homicidal death of the deceased. Such a finding recorded by the trial Court is also not challenged before us. We also find no reason to disturb the finding of the trial Court regarding homicidal death of the deceased. Accordingly we concur with the finding of the trial Court on the homicidal death of the deceased. Such a finding recorded by the trial Court is also not challenged before us. We also find no reason to disturb the finding of the trial Court regarding homicidal death of the deceased. Accordingly we concur with the finding of the trial Court on the homicidal death of the deceased. At the same time we notice that it is not only a single blow at the spur of the moment which resulted in the death of the deceased but it was a case of giving repeated blows on different parts of the body so as to cause the lacerated wounds, bruise, abrasion and incised wound, etc. as opined by the learned Addl. Sessions Judge. That aspect of the case we take up as the next sequence while considering the veracity of P.W.5. 10. As noted earlier, except P.Ws.7, 8 and 11, the rest of the villagers examined as witnesses have not sated anything to contribute to prove the charge against the accused. P.W.5 deposed that: I know the accused and to deceased. The incident occurred more than one year back at early morning. I heard the holla of Hadibandhu as Marigali Marigali and I saw the accused assaulting him. I asked the accused who told me that he had assaulted to Hadibandhu and requested to save him and accused went away. I saw Hadibandhu lying with bleeding injury in his bari. I was examined by police. When the deceased suffered homicidal death and accused is facing the trial for the offence u/s 302, I.P.C. and P.W.5 is the solitary eye-witness to the occurrence, prosecution should have taken a minimum care to bring proper evidence on record. From the above quoted passage, which is the totality of the evidence in chief of the aforesaid witness, nothing has been stated by her as to what was the weapon which was being used by accused, on which part of the body of the deceased he inflicted the injuries, what was the consequence of each of the blows and whether others could have seen the incident or did she intimated anybody else about the occurrence. In the above context, on perusal of the evidence of P.W.14, it is seen that he stated in his evidence that during investigation he visited the spot. In the above context, on perusal of the evidence of P.W.14, it is seen that he stated in his evidence that during investigation he visited the spot. In the Case Diary P.W.2 has described the spot by stating that the house of the accused and the deceased is in the Munda Sahi consisting of ten families. House of the deceased was a party damaged thatched-roof house consisting of rooms having a common verandah and it's front facing towards North. There was open courtyard in front of the house. House of Surendra Munda was on the southern side of the spot house and house of Bhaja Munda on the western side and that an open field exists on the North and Eastern side of the spot house and further that in between the house of the deceased and Surendra Munda there was bamboo 'Tati' fencing. The body of the deceased was on the verandah, body was not disturbed and blood stains were seen around the dead body only at the spot, i.e., the courtyard. 11. According to the evidence of P.W.9, in the night of incident accused and deceased participated in the 'Dola' festival and they returned to home at about 1.00 p.m. and accused alone was present in the house. If that be so, then the occurrence took place at anytime after 1.00 a.m. and before the deceased could go to bed and for that reason perhaps it has been stated in the charge sheet that accused committed murder at about 1.30 a.m. 12. 1.30 a.m. can be called as early part of the morning as the next date starts from after the mid night. In this case P.W.5 does not give any details as to at what time she witnessed the occurrence. Apart from that, when family of ten villagers are remaining around and another house is remaining adjacent in other direction, how the assault on the deceased by the accused and the shout produced by the deceased was not noticed by anybody else in the neighborhood save and except P.W.5? Even if that be so, she does not speak of her reaction on seeing the assault and murder. If not to anybody else, at least she could have taken her husband and family members into confidence by speaking about the occurrence. No such version is coming from the mouth of P.W.5. Even if that be so, she does not speak of her reaction on seeing the assault and murder. If not to anybody else, at least she could have taken her husband and family members into confidence by speaking about the occurrence. No such version is coming from the mouth of P.W.5. Dearth of cross-examination of this witness by the defence cannot be a ground to ignore these 'it's and 'buts' which are prominent on reading of her deposition. Therefore, we find it appropriate not to sail with the sole unexplained statement with scanty description about the occurrence as the truthful and credible version to prove the charge. The last seen theory in this present case has no applicability, because the place was accessible by others. 13. P.Ws.7, 8 and 11 are the witnesses leading to discovery and it is to be seen how far their evidence is credible enough. P.W.7 stated that: Accused gave recovery of the lathi. While in custody he told that he assaulted Hadibandhu with that lathi. Police seized the lathi. In the above context, P.W.8 stated that: I know the accused and deceased. Hadibandhu was murdered 2 years back. Accused while in custody told that he concealed the lathi at his bari with which he assaulted to Hadibandhu and brought out the lathi. Police seized the lathi and prepared seizure list. Ext.5 is the seizure list. Ext.5/1 is my signature. Sapana Behera was present. On the other hand, P.W.11 stated that: I know the deceased and the accused. Hadibandhu was killed one year back. While in custody the accused told that he assaulted to Hadibandhu with lathi and concealed it. He gave recovery the lathi which he kept under a Badhial tree. Police seized it and prepared seizure.list. Ext.5 is the said seizure list. Ext.5/2 is my signature. The statements in examination-in-chief have been quoted to indicate that semblance of Section 27 of the Evidence Act is not at all present, besides the other deficiencies. P.W.7 does not speak about the date, time and under what circumstances recovery of lathi was made and wherefrom it was seized by the police and in what manner. In the cross-examination he admitted that he does not see the lathi in the Court. P.W.8 making a little elaborated statement also does not state about the place of concealment and the manner of giving discovery. In the cross-examination he admitted that he does not see the lathi in the Court. P.W.8 making a little elaborated statement also does not state about the place of concealment and the manner of giving discovery. He also admitted about non-availability of the seized weapon. P.W.8 related the occurrence of discovery to the murder which took place two years before. P.W.11 on the other hand related to the recovery which undertaken year before and there he stated that accused gave recovery of the lathi kept under a 'Badhial' (custard-apple) tree. In Ext.5 it has been noted that the occurrence took place in the night and that the place of concealment was the foot of the custard-apple tree. There is nothing on record to indicate that the weapon which was recovered had any nexus with the crime, in as much as it appears from the report Ext.10 of the S.F.S.L. that no opinion could be given about the blood because of the deteriorated condition. Therefore, discovery of the weapon of offence, in this case, is so shaky evidence that no prudent man can rely on it. Little bit of corroboration which could have been available to the Court from this piece of evidence is also not available to the prosecution. Prosecution s absolutely without any answer as to why the seized lathi was not produced in Court and, if not anybody else, at least it should have been shown to P.W.5, and in that event the facts scenario would have been completely different. The standard of evidence should have been to the degree of credibility. Wearing apparels of the accused sent for chemical analysis does not support the prosecution case regarding presence of human blood belonging to the group of the deceased. Therefore, we find that the argument of learned Standing Counsel that because of non-challenge to the evidence of P.W.5, raising no dispute to the recovery of lathi, it amounts to virtually admitting the prosecution case by the accused. We find that such is not the case and silence of the accused in any event does not ipso facto amounts proving of discovery of the weapon of offence and assault by the accused on the deceased because the relevant evidence remains deficient in the above-indicated manner. 14. We find that such is not the case and silence of the accused in any event does not ipso facto amounts proving of discovery of the weapon of offence and assault by the accused on the deceased because the relevant evidence remains deficient in the above-indicated manner. 14. It reveals from the Case Diary that in the morning of the date of occurrence, accused with his wife was proceeding and they were detained. Accused has advanced the plea that he was going to intimate his wife. The witnesses who have been examined on behalf of the prosecution about preventing the accused to escape have not stated about presence of the wife of the accused nor any of them have described that accused was escaping from the spot. A mere movement in a direction cannot be regarded as escape in the absence of substantial evidence. The Investigating Officer while making the spot visit did not take note of the place of sleeping of the accused and where he used the bed prepared for sleeping. If he would have found some evidence in that respect, then perhaps the mere movement of the accused could have been attributed not only for the last seen theory but about the conduct of absconding or attempt to abscond. Such evidence is not at all available on record. 15. In the context of non-production of the Material Objects in Court, after going through the case of Umar Mohammad (supra) we find that the ratio therein about not to draw adverse inference for non-production of weapon of offence is not at all applicable to the facts and circumstances of the present case in as much as here the weapon of offence was said to be discovered and seized and yet it was not produced for inspection of the Court or for views of the witnesses infurtherance of the prosecution evidence. 16. It is the settled principle of criminal jurisprudence that once a charge is framed, the onus is heavy of the prosecution to prove this case beyond all reasonable doubt, and any act or deficiency on the part of the accused cannot be banked to wriggle out from discharge of the burden or the onus, as the case may be. 16. It is the settled principle of criminal jurisprudence that once a charge is framed, the onus is heavy of the prosecution to prove this case beyond all reasonable doubt, and any act or deficiency on the part of the accused cannot be banked to wriggle out from discharge of the burden or the onus, as the case may be. It is also the settled principle of law that a suspicion, however strong it may be, does not substitute the requirement of proof of the fact which is required to prove to substantiate the charge, and it is also the settled position that a criminal trial is not a game of wit but is a course by which the Court determines whether the person who has been sent for trial is guilty or not guilty and that depends upon the degree of proof, the volume and weight of the evidence and not on the basis of any other means including emotions and sentiments. In this case, the death of the deceased, who was sleeping in the same premises, may give rise to a strong suspicion as against the accused for having committed the crime. At the same time the materials on record indicate that there was no dispute between the brothers for partition of share nor there was any quarrel or tension between them and, therefore, merely a desire to partition may not be attributed as motive to murder. 17. On consideration of each and every aspects involved in this case and the evidence available on record, we find it appropriate to set aside the order of conviction granting benefit of doubt to the accused-Appellant. Accordingly, we pass the order of acquittal and direct to issue release warrant, if detention of the Appellant in jail is not required in connection with any other criminal case. The Jail Criminal Appeal is accordingly allowed. Final Result : Allowed