JUDGMENT : A.S. Naidu, J. - The Judgment dated 20th April, 1996 passed by Learned Addl. Sessions Judge, 3hadrak, acquitting the accused persons from the charges under Sections 302/34 of the Indian Penal Code in S.T. Case No. 1/11 of 1995 is assailed by the State of Orissa in this Government Appeal. 2. According to the prosecution case on 3.4.1994 at about 10.00 A.M. when the informant Krupasindhu Bal (P.W.1) was at Gadi Bazar, he heard noise & shouts from a nearby paddy field. He went there & found that Kanduri Bal (deceased), who was his father's younger brother, was lying on the ground having sustained bleeding injuries. He also noticed that accused Babaji Panigrahi & Malati Panigrahi (present Respondents) were present there & accused Babaji Panigrahi was holding an iron "Hemadasta Pua" & Malati Panigrahi was holding a stick & were abusing Kanduri Bal. Their son Babu Panigrahi was also standing nearby holding a stick. Seeing them P.W.1 raised "hulla". Hearing shouts of P.W.1 some persons arrived there from the nearby bazaar, & with their help P.W.1 brought the deceased to Tihidi Hospital. At the hospital, it is stated, Kanduri Bal gained sense & disclosed that he had earlier cautioned the accused persons about their cattle, damaging his crops, but then, on the date of occurrence when Kanduri Bal found the cattle of the accused persons damaging his paddy crop, he shouted, on hearing shouts the accused persons came & assaulted Kanduri Bal. On the advise of the doctor, Kanduri was shifted to S.C.B. Medical College- Hospital, Cuttack on 4.4.1994 for treatment. On the said date the informant (P.W.1) filed F.I.R. (Ext.1) before the OIC Tihidi P.S. who registered a P.S. Case under Sections 341/323/325/34 of I.P.C. & directed the A.S.I. (P.W.6) to take up investigation. 3. In course of investigation P.W.6 visited the spot, examined the informant, issued requisition (Ext. 17) for examination of the injured, seized wearing apparels of the injured, examined witnesses, searched the house of the accused persons & recovered one "Hemadasta Pua" from the house of the accused persons & after completing other paraphernalia handed over the charge of investigation to P.W.5 as he received the intimation that the injured had succumbed at the S.C.B. Medical College-Hospital, Cuttack. Thereafter the offence was turned to one u/s 302 of the Indian Penal Code. 4. Thereafter the offence was turned to one u/s 302 of the Indian Penal Code. 4. After receiving information P.W.5 took steps to conduct the inquest & sent the deadbody for post mortem. After completion of the investigation, charge sheet was submitted in G.R. Case No. 895/1994 in the Court of S.D.J.M., Bhadrak. Learned S.D.J.M., Bhadrak after perusing the police papers & on being satisfied that prima facie case was made out, took cognizance of the offence & committed the case to the Court of Session for trial. 5. The plea of the defence was one of complete denial. In addition, the accused persons in course of their examination under Section. 313 Cr.P.C. took the plea that on the date of occurrence accused Malati had been to the field to graze her cattle at that juncture Kanduri Bal (deceased) caught hold of her from behind & tried to rape her. Malati received injuries during struggle & at that juncture some people rushed to the spot hearing her shouts. Thereafter, Malati became senseless & could not say as to how Kanduri Bal sustained injuries & died. 6. In order to substantiate their case, the prosecution got examined eight witnesses. Out of them, P.W.1 was the informant & a post occurrence witness, P.Ws.2 & 3 were the witnesses, who rushed to the spot on hearing shouts of Kanduri Bal. They claimed to have seen the occurrence, P.W.4 was the seizure witness with regard to bed-head ticket seized at Tihidi Community Health Centre, P.W.8 was the doctor, who treated Kanduri Bal at the first instance, P.W.7 was the doctor, who conducted autopsy at S.C.B. Medical College-Hospital, Cuttack, P.W.6 was the initial Investigating Officer & PW.5 was the Officer-in-charge of Tihidi P.S. who registered F.I.R. & later took charge of the investigation. 7. To substantiate their case the defence also got examined two witnesses. D.W.1 was the Medical Officer of Tihidi C.H.C., who admitted the accused Malati in the Hospital & treated her & D.W.2 was the Revenue Inspector, who had drawn the spot map. The injury report of Malati & certified copy of R.O.R. relating to the disputed lands were marked as Exts. A & B. In course of trial Babu Bal, the son of the deceased, was declined to be examined as a witness. The injury report of Malati & certified copy of R.O.R. relating to the disputed lands were marked as Exts. A & B. In course of trial Babu Bal, the son of the deceased, was declined to be examined as a witness. However, the Court summoned the said witness & examined u/s 317 of Cr.P.C. On such examination the Court was satisfied that he was not fit & was not in good mental condition for giving evidence. After discussing the evidence in extenso, Learned Sessions Judge basing upon the evidence of the doctor (P.W.7), who conducted the post mortem arrived at a conclusion that the death of Kanduri Bal was homicidal in nature & the cause of death was due to the injury sustained by him on the head. After going through the entire materials we do not find any infirmity in the said conclusion arrived at by the Learned Sessions Judge & decline to interfere with the same. 8. The only other question which needs to be considered is as to whether the accused persons were the authors of the crime or not. Perusal of the evidence, both oral & documentary, reveals that the prosecution mainly relied upon the evidence of three witnesses to establish the case being P.W.1 the informant & P.Ws.2 & 3 the two eye witnesses. Learned Sessions Judge after discussing the evidence, arrived at a conclusion that the prosecution case is not free from suspicion & the prosecution had failed to prove its case beyond all reasonable doubts, consequently acquitted both the accused persons. The said order is assailed in this Government Appeal. 9. Mr. Mishra, Learned Addl. Government Advocate, took pains to place the evidence of all the three witnesses, i.e. P.Ws. 1, 2 & 3 & submitted that in view of the fact that both P.Ws.2 & 3 have seen the occurrence, Learned Sessions Judge acted illegally in not accepting their evidence. Mr. Mishra, further submits that P.W.1 arrived at the spot immediately after the occurrence & saw the two accused persons along with their son standing near the place of occurrence. He also deposed in Court that he found accused Babaji Panigrahi was holding a "Hemadasta Pua" & Malati Panigrahi was holding a stick. According to Mr. Mishra as there are cogent evidence, the order of acquittal may be set aside & the accused persons may be convicted. 10. He also deposed in Court that he found accused Babaji Panigrahi was holding a "Hemadasta Pua" & Malati Panigrahi was holding a stick. According to Mr. Mishra as there are cogent evidence, the order of acquittal may be set aside & the accused persons may be convicted. 10. The aforesaid submissions are strongly repudiated by Mr. Panda, Learned Counsel appearing for the accused-Respondents. According to him there are discrepancies in the evidence of the eye witnesses vis-a-vis the evidence of the informant. It appears the prosecution tried to exaggerate the incident by tagging innocent persons. In support of such submission Mr. Panda relies upon the averments made in the F.I.R. lodged by P.W.1 as well as the deposition of the said witness made before the Court. Perusal of the F.I.R. as well as the evidence reveals that the prosecution had shifted the location of the occurrence. That apart, it is submitted that F.I.R. was lodged twenty four hours after the occurrence. According to Mr. Panda, in the F.I.R. the name of the eye witnesses were not mentioned though as per the evidence of P.W. 1 he had seen them at the spot. Due to aforesaid reasons, the Sessions Judge, it is submitted, rightly entertained doubt & acquitted the accused persons. 11. After hearing Learned Counsel for the parties, this Court once again meticulously went through the F.I.R. & the evidence, both oral & documentary. Admittedly, the occurrence took place on 3.9.1994 at about 10 A.M. & F.I.R. was lodged on 4.4.1994 at 10.30 A.M. i.e. about twenty four hours after the occurrence. P.W.1 had stated that the delay in lodging the F.I.R. was because he was engaged in the treatment of Kanduri Bal. It appears from the statement of P.W.6 that the distance between the place of occurrence & the Police Out Post was only 3 kilometers whereas the hospital is situated about 100 cubits away from Tihidi P.S. Thus, the reason given by P.W.1 explaining the delay in lodging the F.I.R. does not inspire confidence. It also appears that the name of Babu Panigrahi, son of the accused, was subsequently introduced. In the F.I.R. it is stated that Babu Panigrahi was standing with a stick, but then in his evidence P.W.1 did not support the said statement. It also appears that the name of Babu Panigrahi, son of the accused, was subsequently introduced. In the F.I.R. it is stated that Babu Panigrahi was standing with a stick, but then in his evidence P.W.1 did not support the said statement. The statements made by the witnesses before the Police u/s 161 of Cr.P.C. in course of investigation also discloses that the name of Babu was not stated before the Police. There are also many discrepancies with regard to the factual aspects in the evidence of P.Ws.2 & 3, P.W.1 & the F.I.R. Such discrepancies are very much fatal to the prosecution case & throws a cloud of suspicion with regard to true facts. That apart, there was inordinate delay in lodging the F.I.R., which has not been explained. In F.I.R. also the names of eye witnesses were not stated which creates a doubt with regard to their presence at the spot at the relevant time. 12. Much emphasis has been given during the course of argument with regard to the plea of defence taken by the accused-Respondents. According to Learned Addl. Government Advocate, Malati, one of the accused, having admitted that she was at the spot, presumption would be, Malati & her husband Babaji were the authors of the crime. But then, law is well settled1 that the statement made by the accused persons in Court u/s 313 of Cr.P.C. may give credence to the prosecution case, but that cannot be the basis for recording an order of conviction. Thus, only because the defence had taken a plea that they were present at the spot at the relevant time cannot be the sole basis for convicting them. 13. After going through the entire evidence this Court agrees with the conclusion arrived at by the Trial Court & holds that the prosecution had totally failed to prove the charges beyond all reasonable doubts. It is well settled that suspicion, however, strong it can be, can not substitute the requirement of proof. The conclusion as to whether the accused persons should be held to be guilty or not would depend upon proof & weight of evidence & not on the emotions & sentiments. In the case at hand, this Court has no hesitation to hold that the prosecution had failed to satisfy the required test for convicting the accused persons. The conclusion as to whether the accused persons should be held to be guilty or not would depend upon proof & weight of evidence & not on the emotions & sentiments. In the case at hand, this Court has no hesitation to hold that the prosecution had failed to satisfy the required test for convicting the accused persons. Evidences are full of discrepancy & the same creates a suspicion in the mind of the Court. 14. In view of the aforesaid discussions, this Court is not inclined to interfere with the order of acquittal passed by the Learned Sessions Judge that too after lapse of 15 years. Accordingly, the Government Appeal stands dismissed. S.C. Parija, J. 15. I agree.