JUDGMENT : A.S. Naidu, J. - State of Orissa seeks to assail the order of acquittal dated 28th October, 1995 passed by the Learned Sessions Judge, Dhenkanal in Sessions Trial No. 172 of 1993. 2. The three Respondents faced trial for commission of offence under Sections 341/34, 302/34 & 323/34 of the Indian Penal Code (in short 'Indian Penal Code'). 3. Criminal action was set to motion on the basis of an F.I.R. filed by Dillip Kumar Samanta (P.W.7) at Hindol Police Station at about 7.15 P.M. on 8th February, 1993. According to the prosecution; Hari Charan Das was a family friend of the Respondents & was visiting their house regularly. By efflux of time, he developed intimacy with Saraswati, sister of the accused. Both of them fell in love & left the house & got married. Consequently, there was an ill feeling between the two families. While matter stood thus, Saraswati gave birth to a son. Hari Charan wanted to celebrate the occasion & on 9th February, 1993 he went to Hindol with his nephew Dillip Kumar Samanta (P.W.7) & Prafulla Kumar Pattnaik (P.W.4) in the motor cycle belonging to Prafulla. They were returning from Hindol after 6.00 P.M. Prafulla was driving the motor cycle & Hari Charan as well as Dillip was the pillion riders. Near village Banamalipur, accused Sarat & Santosh were standing with a bamboo blocking the road. Prafulla stopped the motor cycle all of a sudden, consequently Hari Charan & Dillip fell down from the motor cycle. The motor cycle also tilted to one side. At that juncture, accused Sarat & Santosh directed their brother Satyanarayan to assault Hari Charan. Satyanarayan came to the deceased & dealt successive blows on head & face with axe. Consequent upon such assault, Hari Charan died at the spot. Dillip went to the village of the deceased, informed his brother Manoj (P.W.5) & both of them came to the spot & then went to Hindol Police Station & lodged the F.I.R. 4. The O.I.C., Hindol Police Station after receipt of the F.I.R. conducted investigation, visited the spot, examined the witnesses, seized the bamboo & other materials, sent the dead body for post-mortem, seized the wearing apparels of the deceased & sent the same along with the axe & blood-stained earth for chemical examination. The O.I.C., Hindol Police Station after receipt of the F.I.R. conducted investigation, visited the spot, examined the witnesses, seized the bamboo & other materials, sent the dead body for post-mortem, seized the wearing apparels of the deceased & sent the same along with the axe & blood-stained earth for chemical examination. After completion of investigation, charge-sheet was submitted against the accused persons in G.R. Case No. 20 of 1993 of the Court of Learned SDJM, Hindol. Thereafter, the case was committed to the Court of Session & was tried by the Learned Sessions Judge, Dhenkanal. 5. The plea of the defence was one of complete denial. 6. In order to substantiate the case, the prosecution got examined 12 witnesses. Out of them, P.W.1 is the doctor, who conducted autopsy, P.W.2 is another doctor, who treated accused Santosh Kumar Pradhan, P.W.3 is the mother of the accused, P.W.4 is the widow of the deceased, P.W.5 is the brother of the deceased, P.W.6 is a post occurrence witness, P. Ws.7 & 11 are only eye witnesses, P. Ws. 8,9 & 10 are the seizure witnesses & P.W.12 is the I.O. 7. After discussing the evidence & relying upon the post-mortem report as well as the evidence of P.W.1, the Trial Court arrived at a conclusion that the death was homicidal in nature. After going through the evidence of P. Ws. as well as the post-mortem report & other evidence, this Court finds that the aforesaid finding was just & proper & declines to interfere with the same. 8. The prosecution mainly relies upon the evidence of two eye witnesses, i.e. P. Ws.7 & 11 to substantiate their case. P.W.11 is the owner of the motor cycle & admittedly, he was driving the motor cycle at the time of incident. In his deposition, he has stated that they were returning to their village in the evening & it was quite dark, but then with the help of the head light of the motor cycle, he could notice that two young boys were holding one bamboo & were blocking the road. According to him, Hari Charan was sitting in the middle & Dillip was sitting in the rear of the motor cycle & he was driving. According to him, Hari Charan was sitting in the middle & Dillip was sitting in the rear of the motor cycle & he was driving. According to P.W.11, one boy came running saying "SALAKU MARIDIA" & gave a blow with tangia at the head of Hari Charan, the handle portion of the axe hit him (P.W.11's). Being frightened, he ran to the village of Hari Charan & intimated others, i.e., P.W.5. P.W.11 in his deposition has not stated that the accused persons who were present in the Court had prevented them on the way by holding a bamboo & out of them one boy attacked with the axe. Thus, the statement made by him in Court does not tally with the facts narrated in the F.I.R. 9. The only other witness to the occurrence is P.W.7. According to P.W.7 while they were returning from Hindol, accused Sarat & Santosh blocked them holding a bamboo across the road. Consequently, the motor cycle tilted & he fell to the right & Hari Charan fell to the left of the motor cycle. Accused Sarat then directed accused Satyanarayan to assault Hari Charan & second blow on the axe on the fore-head of Hari Charan & when he turned up, again gave a blow to the right side of his neck. He also gave a blow on the left eye brow of the deceased with the axe. According to the said witness, P.W.11 left the spot only after Hari Charan fell down & died. But then according to P.W.11, he left as soon as the 1st blow given by Satyanarayan. Even otherwise, the evidence of P. Ws. 7 & 11 varies substantially. Admittedly, it was dark by the time the incident took place. P.W.11, who was driving the motor cycle was in a better position to identify the accused persons. According to him, he has not seen any of the accused. The discrepancies in the evidence between P. Ws.7 & 11 is very vital & throws a cloud of suspicion with regard to the truthfulness of the prosecution story. The Trial Court after discussing the evidence of P. Ws.7 & 11 in extenso has come to the conclusion that no order of conviction can be passed on the basis of such distorted evidence. We find no infirmity in such conclusion. 10. The Trial Court after discussing the evidence of P. Ws.7 & 11 in extenso has come to the conclusion that no order of conviction can be passed on the basis of such distorted evidence. We find no infirmity in such conclusion. 10. Apart from the aforesaid two witnesses, all others are post occurrence witnesses & have not seen the assault at all. That apart, seizure of axe (M.O.I), the alleged weapon of offence, also creates some doubt inasmuch as P.W.9, the seizure witness has deposed in Court that on being directed by the police, he signed on a paper. The said witness was declared hostile by the prosecution. 11. According to the I.O., he had recorded the statement of the accused leading to discovery of axe (M.O.I) on 10th February, 1993 while accused Satyanarayan was in custody & as per the information, he seized the axe in presence of the witness under seizure list, Ext. 9. As stated earlier, the seizure witness (P.W.9) does not support the aforesaid fact. The other seizure witness was not examined by the prosecution. 12. The prosecution puts much reliance on the signature of the accused Satyanarayan, on the seizure list. But then, law is well settled that signature of the accused on the seizure list cannot be used as evidence against him as the same is hit by Section 25 of the Indian Evidence Act. That apart, it appears that the axe did not contain any blood-stain so also the sample earth. 13. The only other question, which needs to be considered, is as to whether enmity existed between the family of the accused & the Hari Charan. Admittedly, the sister of the accused & Hari Charan were in love & married each other out of their own will. They resided separately & out of their wed-lock, a son was born. From the evidence of P.W.3, Laxmi Pradhan, mother of the accused persons, it appears that the families have reconciled their disputes & were in visiting terms inasmuch as accused Sarat was often going to the house of his sister Saraswati. The said evidence is not contradicted. 14. The incident took place in the year 1993 & sixteen years have passed in the meanwhile. The said evidence is not contradicted. 14. The incident took place in the year 1993 & sixteen years have passed in the meanwhile. After going through the entire evidence & in view of the discussions made above, this Court agrees with the findings arrived at by the Learned Sessions Judge, Dhenkanal that the prosecution has miserably failed to prove its case beyond all reasonable doubt. The conclusions arrived at & the order of acquittal is just & proper & is based upon correct interpretation of facts. This Court, therefore, is not inclined to interfere with the conclusions arrived at by the Learned Sessions Judge. Consequently, the appeal fails & is dismissed. S.C. Parija, J. 15. I agree. Final Result : Dismissed