JUDGMENT : S.C. Parija, J. - This appeal is direct against the judgment dated 30.06.2007 passed by the Addl. Sessions Judge, Fast Track Court, Jeypore, in Criminal Trial No. 54/233 of 2006, holding the accused-Appellant guilty u/s 302 of I.P.C. and convicting him thereunder. 2. The case of the prosecution in brief is that on 17.7.2006 one Neelakantha Adhari was found dead on the Pujariput-Ghasarda road near a culvert. According to the prosecution, on that day in the evening hours deceased Neelakantha came to Cherkaput village in his M-80 motor cycle in connection with his contract work to search for mason and labourers. While returning from that village, the occurrence took place on the way. The informant (P.W.11) got information from one Ganeswar Sahu at 8 P.M. about the incident and he (P.W.11) went to the spot i.e. Pujariput-Ghasarda road, where he found deceased Neelakantha was lying dead in a pool of blood and he found a deep cut injury on his neck. Deceased Neelakantha had taken a contract work at Cherkaput Dam for Rs. 5,00,000/- for which some unscrupulous persons were inimical towards him and for that reason the informant suspected that due to previous enmity, some persons may have murdered Neelakantha. P.W.11 accordingly reported the matter to the O.I.C., Bihariguda P.S. 3. On receiving the report, the police took up investigation, went to the spot and found deceased Neelakantha lying dead in a pool of blood with his motor cycle and there was a deep cut injury on his neck. The I.O. could not hold inquest over the dead body at that point of time as it was a dark night and accordingly he commanded one constable to guard the dead body and issued requisition for deputing dog squad and scientific team to assist him in the investigation. On the next day morning, the I.O. visited the spot, prepared spot map, held inquest over the dead body and sent the dead body to Bopariguda C.H.C. for post-mortem, the I.O. seized the M-80 motor cycle. The scientific team arrived at the spot along with the dog squad and collected sample earth and blood stained earth from the spot. The I.O. conducted raid on the house of the accused Sashikanta Sekhar Das and after preliminary interrogation he arrested the accused and took him to the police station. The scientific team arrived at the spot along with the dog squad and collected sample earth and blood stained earth from the spot. The I.O. conducted raid on the house of the accused Sashikanta Sekhar Das and after preliminary interrogation he arrested the accused and took him to the police station. While in police custody the accused Sashanka confessed his guilt and made a statement leading to discovery of the fact about keeping his wearing apparels and the weapon of offence. His wearing apparels are kept at his house, stained with blood and the weapon of offence (Tangi), which he brought from Preetam Goudo was returned back to him, after washing the same through one Prahallad Goudo and on being asked by the accused, Preetam Goudo produced the said tangi and the I.O. seized the same. The accused and the Tangi (weapon of offence) were sent to the Doctor for examination and report as to whether the injuries on the body of the deceased could be possible by the said weapon of offence and were sufficient to cause death. Subsequently, P.W.21 took charge of the investigation and after re-examination of the witnesses and on completion of the investigation, he filed charge-sheet against the accused. 4. The plea of the defence is one of complete denial and that he has been falsely implicated by the police. 5. The prosecution examined as many as 21 witnesses and exhibited 19 documents in support of the charge against the accused, P.W.1, who was stated to be an eye witness to the occurrence, did not support the prosecution case. He only stated that some six months back deceased Neelakantha died and he found him lying dead on the Boipariguda-Ghasarda road near a bridge. He was declared hostile and in the cross-examination by the prosecution, P.W.1 admitted to have made a statement before the police that on 17.7.2006, while he was returning from Ghasarda after mason work in the evening he saw deceased Neelakantha and the accused Sashanka were going to the side of Ghasarda on a M-80 motor cycle and he saw them near a bridge. He also admitted in his cross-examination that he usually passes through that road for mason work and he belongs to the village of the accused Sashanka. 6. He also admitted in his cross-examination that he usually passes through that road for mason work and he belongs to the village of the accused Sashanka. 6. Preetam Goudo (P.W.2) from whom the prosecution alleged that the accused had brought the weapon of offence i.e. Tangi, did not support the prosecution case and was declared hostile. In his cross-examination by the prosecution he stated that he had signed on a paper and he identified his signature on a paper, which is marked Ext.1, The rest of the statement alleged to have been made by him before the Police, were denied. 7. Prahallad Goudo (P.W.3) is stated to be the person through whom the accused sent the weapon of offence (Tangi) after commission of the crime, to the house of Preetam Goudo (P.W.2); This witness (P.W.3) also did not support the case of the prosecution. He merely stated that during Ratha Jatra day, he learnt about the deceased Neelakantha and denied the suggestion of the prosecution that he was examined by the police and had stated to have taken the weapon of offence to the house of P.W.2. 8. P.W.4 is a witness who belongs to the village of the deceased Neelakantha. He stated that he learnt about the death of Neelakantha on 17.06.2006 and that at 9 P.M., he along with other villagers went to the spot and found the dead body of Neelakantha lying on the road in a pool of blood and that the brother of deceased Neelakantha accompanied them to the spot and from there they went to the police station to inform the matter. 9. P.W.5 who is a man of Cherkaput village, where deceased Neelakantha was undertaking the contract work and is the village committee leader, stated that deceased Neelakantha was executing the contract work. He also did not support the case of prosecution. 10. P.W.6 is also a man of Cherkaput village, who denied of having any knowledge regarding any dispute between the deceased and the accused in relation to the contract work in his village. P.W.7 also did not support the prosecution case and stated that he learnt from Uma Das, the elder brother of the accused, that deceased Neelakantha has been murdered near Udubi Dangar. P.W.8 is the Medical Officer who examined the accused on 21.7.2006 and found no injury on his person. 11. P.W.7 also did not support the prosecution case and stated that he learnt from Uma Das, the elder brother of the accused, that deceased Neelakantha has been murdered near Udubi Dangar. P.W.8 is the Medical Officer who examined the accused on 21.7.2006 and found no injury on his person. 11. P.W.9 is the doctor, who conducted the post-mortem over the dead body of the deceased Neelakantha and found the following injuries: (i) One cut injury of the size 12"x7"x5" present over back side neck over Servical region; (ii) one pressure abrasion over left forearm; (iii) Anr. abrasion at the left leg below knee joint; (iv) pressure abrasion at the right forearm; (v) scratch injuries present on the left side scrotum and penies. The doctor (P.W.9) found the injuries to be ante mortem in nature and the vessels were cut at the injury No. 1. On dissection he found fracture of cross-section of C-4 vertebrae, all muscles, vessels, nerves were cut on back side neck survicle area, spinal cord and membrane were cut at the survicle region and that the cuts were underneath injury No. 1. P.W.9 further stated that on examination the weapon of offence (Tangi) he found that injury No. 1 could be possible by the said weapon. He accordingly opined that the death of deceased Neelakantha was homicidal. 12. P.W.11 is the informant, who is the nephew of deceased Neelakantha, stated in his evidence that on 17.07.2006 at about 8 P.M., he received a telephonic message about his uncle lying near a culvert between village Cherkaput and Ghasarda. On receiving such message he along with Goura Adhari, Ujala Padhi, Muna Sahu and Puma Padhi went to the spot and saw his paternal uncle lying dead, with injury on his back. He proceeded to the police station and lodged the written report on 17.07.2006 vide Ext.6 and he was also present at the time of inquest held over the dead body of Neelakantha by the police. 13. P.W.12 is the widow of Neelakantha, who stated that there was quarrel between the accused and her husband and her husband had told her some days back that the accused was creating disturbance in his contract work. P.W.12 further stated that after some days of the disturbances, the accused Sashanka killed her husband and that she went to the spot and saw her husband lying dead with bleeding injury. 14. P.W.12 further stated that after some days of the disturbances, the accused Sashanka killed her husband and that she went to the spot and saw her husband lying dead with bleeding injury. 14. P.W.13 is the driver of a tractor, who was working for deceased Neelakantha, carrying sand etc. He stated in his evidence that while he was going to the place of work, carrying sand in the tractor, Uma Das, the elder brother of the accused told him to take back the tractor and that incident occurred one month prior to the death of Neelakantha. 15. P.W. 14 is the brother of deceased Neelakantha, who stated in his evidence that on 17.07.2006 deceased Neelakantha went to Cherkaput to look after the construction work and on that night they received information that Neelakantha had met with an accident and he was lying on the road in between Pujariput and Ghasarda, near a culvert. He further stated that when they went to the spot, they found a cut injury in the neck of the Neelakantha and they suspected to be a case of murder and by the time they went to the police station, report had already been lodged by P.W.11. P.W. 14 further stated that he was present at the time of the inquest and that the police seized the sample earth and blood stained earth from the spot (Ext.9) in his presence. P.W. 14 further stated that about 15 days prior to the death of Neelakantha, the deceased had communicated to him that accused Sashanka is giving threats to his life due to his undertaking of the contract work at village Cherkaput. 16. P.W.15 is also a brother of deceased Neelakantha, who stated that on the date of occurrence, at about 8 P.M., he received information that Neelakantha has been murdered and he proceeded to the spot which was near a culvert on Pujariput and Ghasarda road, where he found deceased Neelakantha lying dead with the motor cycle and there was bleeding from the neck. P.W.15 further stated that prior to his death Neelakantha had stated before him that due to a contract work, which was undertaken by the deceased at Ghasarda, accused Sashanka and his brother Uma Das were giving him threats. 17. P.W.15 further stated that prior to his death Neelakantha had stated before him that due to a contract work, which was undertaken by the deceased at Ghasarda, accused Sashanka and his brother Uma Das were giving him threats. 17. P.W.17 is the constable who guarded the dead body in the night and took the body for post-mortem and produced the wearing apparels of the deceased. P.W.17 also took the accused to the hospital and is a witness to the seizure of the sample blood and nail clippings of the accused. P.W.18 is also the constable, who was a witness to the seizure of the wearing apparels of the deceased. 18. P.W.19 is a witness to the alleged confessional statement given by the accused before the police leading to the discovery of the fact regarding concealment of the wearing apparels and the weapon of offence (Tangi). He stated that on 17.05.2006, he was called to the police station and while he was there, the accused made a confessional statement before the police wherein the accused stated that he had sent the weapon of offence (Tangi) through one Prahallad to the house of Preetam Goudo, from whom he brought the Tangi. P.W.19 further stated that the accused also confessed that he had kept his dress, which he was wearing at the time of occurrence, at his own house. He further stated that he along with one Mana Naik accompanied the accused and the police officer in a jeep to Pujariput to the house of the accused and the accused went inside the house followed by them and then the accused brought out the dress from a corner of a room of his house and produced the same before the police, which was seized by the police in their presence. Then the accused led them to the house of Preetam Goudo, who on being asked, produced the Tangi which was also seized by the police in their presence. He identified the Tangi from its appearance as per M.O.I. He also identified the shirt of the accused which was seized by the police as M.O.II. 19. The defence did not examine witness and instead exhibited requisition for collection of nail clippings of the accused as per Exts. A. 20. On the basis of the evidence on record both oral and documentary, learned Addl. 19. The defence did not examine witness and instead exhibited requisition for collection of nail clippings of the accused as per Exts. A. 20. On the basis of the evidence on record both oral and documentary, learned Addl. Sessions Judge came to find that the death of the deceased Neelakantha Adhari, which took place on 17.07.2006 was homicidal caused by infliction of heavy sharp cutting weapon. Learned Addl. Sessions Judge further found from the evidence of the witnesses that there was no cogent and credible evidence to establish that the accused Sashanka was giving threat to the deceased for the contract work and the said allegation by the prosecution appears to be a subsequent development in the case. Accordingly learned Addl. Sessions Judge came to find that no clear motive could be attributed for the murder of deceased Neelakantha. 21. Coming to the circumstantial evidence, learned Addl. Sessions Judge has taken into consideration the evidence of P.W.1, the so-called eye witness to the occurrence, who though turned hostile, had stated in his cross-examination that he had told the police that he saw deceased Neelakantha and accused Sashanka going in the motor cycle on 17.07.2006 near culvert, while proceeding towards Cherkaput village. Learned Sessions Judge accordingly came to find that as P.W.1 had seen the accused and deceased together in the evening hours and by 7.30 P.M. the deceased was found dead, it was for the accused Sashanka to explain as to how the deceased, who was seen in his company had met with an homicidal death. In absence of any such explanation, the theory of last seen together is an incriminating circumstances against the accused. 22. Coming to the statement given by he accused while in police custody, leading to discovery of the fact regarding the weapon of offence (Tangi) and his wearing apparels., learned Addl. Sessions Judge, has taken into consideration the evidence of P.W.19, who was a witness to the statement made by the accused before the police. P.W.19 had stated that he was called to the police station and in his presence, the accused had stated that he brought the weapon of offence (Tangi) from Preetam Goudo and after the occurrence he had sent the Tangi through Prahallad Goudo to the house of Preetam Goudo. P.W.19 had stated that he was called to the police station and in his presence, the accused had stated that he brought the weapon of offence (Tangi) from Preetam Goudo and after the occurrence he had sent the Tangi through Prahallad Goudo to the house of Preetam Goudo. The accused thereafter had stated that the dress, which he was wearing at the time of occurrence, has been kept in his house and accordingly led the police and P.W.19 accompanied by one Mana Naik to his house in Pujariput and on reaching the house, the accused went inside the house followed by the witness and police and brought out the dress from the corner of a room of his house and produced the same before the police, which was seized in the presence of P.W.19 and Mana Naik. P.W.19 had further stated in his evidence that before going to the village Pujariput, the police has recorded the confessional statement of the accused in his presence and that the accused had signed on the confessional statement in his presence and he identified the signature of the accused which was marked as Ext.16/2. P.W.19' further stated that the accused led them to the house of Preetam Goudo and on being asked, Preetam Goudo brought out the Tangi and produced it before the police which was seized in their presence as per Ext. 1/1. In his cross-examination by the defence, no material contradictions could be elicited. 23. The articles which were seized by the police were sent to chemical examination and were found to have contained human blood of Group-'B'. The accused in his statement recorded u/s 313 Code of Criminal Procedure had only stated that nothing was seized from him and there was no other explanation by the accused regarding the blood stains. The shirt, the sacred thread, underwear, check lungi and gamcha of the deceased also found to have blood of human origin of Group-'B'. The Tangi (M.O.I.) which was seized as per the discovery statement given by the accused was' also found to contained human blood of Group-'B' and the full pant and full shirt of the accused were seized as per the discovery statement given by the accused also contained human blood of Group-'B'. 24. The Tangi (M.O.I.) which was seized as per the discovery statement given by the accused was' also found to contained human blood of Group-'B' and the full pant and full shirt of the accused were seized as per the discovery statement given by the accused also contained human blood of Group-'B'. 24. Considering the evidence on record, both oral and documentary, learned Sessions Judge came to find that the death of deceased Neelakantha was homicidal and the accused Sashanka was last seen with the deceased and at the instance of the accused, his blood-stained wearing apparels and the weapon of offence, also containing blood stains were recovered, which is sufficient to hold the accused guilty. Accordingly, learned Sessions Judge came to find that the circumstantial evidence were clear and cogent and besides that, all the links in the chain of circumstances were complete, which establishes the guilt of the accused, excluding all other hypothesis of innocence of the accused. The learned Session Judge proceeded to hold the accused guilty u/s 302 I.P.C. and convicted him thereunder. 25. Learned Counsel for the accused-Appellant has vehemently submitted that there is no clear, cogent and credible evidence to establish the involvement of the accused in the alleged murder of deceased Neelakantha. It is stated that merely because some witnesses have given some stray statements, from which an inference may be drawn with regard to involvement of the accused, the same by itself cannot be a ground to hold the accused guilty of committing murder of deceased Neelakantha. It is further submitted that the prosecution having failed to establish any strong motive or any intention for the accused to commit the murder of deceased Neelakantha, the non-consideration of the same by the learned Sessions Judge, while passing the order of conviction is improper and illegal. It is also submitted that mere existence of some circumstances by itself cannot be the basis for holding the accused guilty of the offence charged, in absence of any independent corroboration. Accordingly it is submitted that the impugned order of conviction has been passed merely on inferences and presumptions, especially when there are no eye witnesses to the occurrence and the only so-called eye witnesses (P.W.11) had turned hostile and not supported the case of prosecution. Accordingly it is submitted that the impugned order of conviction has been passed merely on inferences and presumptions, especially when there are no eye witnesses to the occurrence and the only so-called eye witnesses (P.W.11) had turned hostile and not supported the case of prosecution. Hence, there was no material before the learned Trial Court to come to a positive finding that the accused alone was the author of the crime and responsible for the death of Neelakantha. 26. On a perusal of the impugned order of conviction, we find that the prosecution has failed to establish any motive or intention on the part of the accused for committing the murder of the deceased Neelakantha. In absence of any eye witness to the occurrence and the so-called eye witness (P.W.11) having turned hostile and not supported the case of the prosecution, the entire case hinges on the circumstantial evidence. Though the circumstantial evidence appears to be well-knit, the same does not appear to be full proof. Moreover the evidence of the so-called eye witness (P.W.11) shows that the deceased neelakantha and accused Sashanka were going together in the motorcycle of the deceased, when last seen, which goes to show that there was no enemity between them. It is not very improbable that while the deceased and accused were going together, due to some altercation between them and in a heat of passion, the accused may have dealt a blow, resulting in the death of Neelakantha. There appears to be no premeditation and prior planning to murder the deceased. 27. Considering the fact that no motive or intention has been attributed to the accused for committing the murder of deceased Neelakantha and in absence of any premeditation, we feel the interest of justice would be best served if the conviction of the accused-Appellant u/s 302 I.P.C. is modified to one u/s 304 Part-II I.P.C. The accused-Appellant is accordingly convicted u/s 304 Part-II I.P.C. and sentenced to undergo imprisonment for 5 years and pay a fine of Rs. 5,000/-, in default to undergo further imprisonment for one year. The fine amount on realization, shall be paid to the widow of the deceased Neelakantha Adhari. The period of imprisonment already undergone by the accused-Appellant shall be set of. 28. The Criminal Appeal is accordingly allowed to the extent indicated above. A.S. Naidu, J. 29. I agree. Final Result : Allowed