JUDGMENT Vinod Prasad, J. The sole appellant Subash Chandra Pradhan being aggrieved by his conviction u/s 302 I.P.C. and imposed sentence of life imprisonment and to pay a fine of Rs.5000/-and in default to serve further 2 years RI by Additional Sessions Judge, FTC, district Nayagarh, in S.T.No. 49/485 of 2004-03, State of Orissa versus Subash Chandra Pradhan, vide impugned judgment and order dated 20.3.2006, has preferred instant appeal challenging the said verdict hankered by success. 2. Recapitulating the background incident briefly it becomes manifest from the entire trial court record including tendered documentary evidences and oral testimonies of witnesses that Gopinath Sasmal(deceased) was a resident of village Benagadia under Khandapada police station, district Nayagarh, and had four sons Madhusudan/ informant/PW6, Golak/PW9, Sudama/PW7 and Bhikhari/PW8. Since last a decade or so deceased was employed as a jungle watchman by co-villagers to guard local Ghodamari jungle commonly known as “Izat Ghodamari Benagadia jungle”. As usual, Gopinath Sasmal, the deceased, left his house for his watchman duty on 26.4.2003 at 6 a.m. Same day at about 8 a.m. one person by the name of Naya Sahu R/O village Patna came to Madhusudan, the informant/PW6, and disclosed that the present appellant had taken a Katuri from the deceased Gopinath and from it had cut a Mango and after eating the same had murdered Gopinath Sasmal by slicing his neck and then had escaped from the murder scene. Coming to know of his father’s murder, informant/PW6 with his brothers and co villagers rushed to the incident scene only to spot deceased corpse lying under a tamarind tree with a sustained incised wound chopping off his neck. At the occurrence scene Kalika Pradhan, sister of present appellant, arrived and disclosed to the informant/PW6 that it was the appellant who had murdered his father by Katuri and had escaped from the murder site. Khandapada Police was informed on phone and post their arrival at the incident place that the informant /PW6 dictated FIR, Ext.5, which was penned down by Dayanidhi Pradhan, and the same was handed over to the police, on the strength of which formal FIR, Ext. 5/3, at the police station Khandapada was registered as P.S. Case No. 49 at 11.30 a.m. same day exhibiting distance between the police station and incident scene as 9 KMs. 3. 5/3, at the police station Khandapada was registered as P.S. Case No. 49 at 11.30 a.m. same day exhibiting distance between the police station and incident scene as 9 KMs. 3. Priyaranjan Sathpathi, OIC, Khandapada police station/PW16, immediately initiated the investigation, came to the incident village, sketched spot map, Ext.8, interrogated and recorded statements of witnesses, got cadaver of the deceased photographed, performed inquest on the dead body and slated down inquest memo, Ext.1, prepared dead body chalan Ext.9 and seized blood stained and plain earth from the spot with blood stained slippers, two blood stained stone chips, and prepared seizure list thereof as Ext.3. Appellant was arrested on 26.4.2003 at 8 p.m., who confessed his guilt vide Ext.10 and then led the police party and the recovery witnesses to Ratendilati and from the southern side of Kuania river, near village Serjanga Patharapada, brought out a Katuri, (M.O.I,) weapon of assault, which was seized vide seizure memo Ext.2.Wearing apparels of the appellant and one blood stained napkin were also seized by the I.O./PW16. After conducting some further investigation PW16 handed over residue of the investigation to the incumbent OIC Jyoti Prakash Panda/ PW17 on 26.5.2003, who, after conducting further investigation, charge sheeted the appellant. Ext. 14 is the chemical examiner’s report concerning weapon of murder and the attires of the appellant. 4. Dr. Shantisena Misra/PW15, a paediatric surgeon attached with Khandapada hospital, had conducted post mortem examination on the cadaver of the deceased on 26.4.2003 at 4.30 p.m. and had slated down autopsy report Ext.6. Body was despatched from the village same day at 2.20 p.m. and had arrived at the mortuary 4.30 p.m. brought by constables C/329 H.K.Behra and c/365 N. Panigrahi. According to the doctor deceased was 65 years of age, had average built body and rigor mortis was present over all his limbs. Blisters were present over his chest, right thigh and left leg. Following ante mortem physical injury was detected by the doctor on the dead body:- “Incised wound 3 cm x 1 ½ cm deep up to bone size at the level of thyroid cartilage on the left side of the neck transversely placed with tearing of major vessels and fracture of cervical vertebra on left side with abcerdant bleeding from the wound site with other viscera pale but intact. The wound was ante mortem.” Death had occasioned due to shock and sever haemorrhage occasioned by cutting of large vessels on the left side neck due to injury caused by heavy and sharp cutting weapon which was homicidal in nature. Subsequently this witness on the requisition sent by the I.O. through court, had opined that sustained injury could be inflicted by M.O.I. vide Ext.7. 5. Now turning to the court’s proceedings, observing necessary formalities in the committal court, case of the appellant was committed to Sessions Court for trial, where Ad-hoc Additional Sessions Judge, charged him with offence u/s 302 I.P.C. on 21.12.2005, but since that charge was abjured, accused pleaded not guilty and claimed to be tried and hence to establish the charge he was tried by resorting to Sessions trial procedure. 6. In the trial, prosecution confined its case to oral testimonies of seventeen witnesses including four eye witnesses Nibash Biswal/PW11, Rabindra Kumar Pradhan/PW12, Bira Sasmal/PW13 and Babuli Barada/PW14. Daitary Naik/PW1 is the inquest witness while Alekha Sethi/PW2 and Udayanath Mallik/PW3 are seizure witnesses. Sons of the deceased Madhusudan Sasmal/PW6, Bhikari Sasmal/PW8, Golak Bihari Sasmal/PW9, and his nephew Sudama Sasmal/PW7 are post occurrence witnesses. Sambari Pradha/ PW10 is the witness of confession made by the appellant whereas two I.O.s are PW16 and 17. Dr. Santisena Misra/ PW15 is the autopsy doctor. Additionally prosecution also relied upon fourteen exhibits as documentary evidences. 7. Plea of the accused appellant was of total denial and false implication, but no defence witness was examined by him in support thereof. 8. Learned trial Judge through the impugned decision held that the prosecution had established accused guilt conclusively and therefore convicted and sentenced the accused appellant as above which judgment and order is under challenge in this appeal. 9. In the aforementioned back ground scenario that we have heard Sri Pradhan for the appellant and Sri S.K.Zafrulla, learned Additional Standing Counsel for the State and have scanned oral and documentary evidences and entire trial court record. 10. Incisively unleashing castigation of the impugned judgment, it is harangued by the appellant’s counsel that by resorting to conjecture and surmises that the appellant has been held to be guilty when prosecution has miserably failed to establish the charge. 10. Incisively unleashing castigation of the impugned judgment, it is harangued by the appellant’s counsel that by resorting to conjecture and surmises that the appellant has been held to be guilty when prosecution has miserably failed to establish the charge. No eye witness about the actual infliction of injury was produced and the so called eye witnesses also had not witnessed the actual assault nor they have corroborated the prosecution version. Sons and nephew are post incident witnesses and their evidences are valueless and nugatory to anoint guilt. Investigation is galore with mistakes and do not instil any confidence. Evidence of all the witnesses evidently are hearsay and inadmissible in as much as Kalika, sister of the appellant, was withheld by the prosecution and hence no reliance can be placed on oral testimonies of the examined witnesses. FIR was fabricated at the spot without having any ring of truth in its contents and the same is the outcome of confabulation, deliberation and concoction. Furthermore, a single blow without any motive at the spur of the moment do not take into its fold offence u/s 302 I.P.C. and at the worst only an offence u/s 304 part-I is made out and hence impugned judgment of conviction and sentence being fallible is liable to be set aside and appellant be acquitted of the charge or the offence be mollified to culpable homicide not amounting to murder and be sentenced to the period of imprisonment already under gone by him as he has already in custody since the date of his arrest 26.4.2003 and has served more than a decade of imprisonment. 11. Submitting conversely learned State counsel urged that the deceased was last seen in the company of the appellant and immediately after the incident appellant was spotted running from the incident scene and hence irresistible intuitive conclusion can only be that but for the appellant nobody else is the perpetrator of the crime. Medical report and opinion by the doctor concerning the weapon certifies prosecution allegations and thus conclusive residue establishes appellant’s guilt. Appeal sans merit and be dismissed is the final submission raised by learned State counsel. 12. Medical report and opinion by the doctor concerning the weapon certifies prosecution allegations and thus conclusive residue establishes appellant’s guilt. Appeal sans merit and be dismissed is the final submission raised by learned State counsel. 12. We have carefully pondered over rival contentions in the light of evidences on record and our summations and critical analysis evinces that it is not in dispute that the deceased was a watchman of Khodamari Jungle and at the date, time and place of the incident, since was not at all challenged, that he met with a homicidal death. Doctor’s evidence and autopsy report/Ext.6 clearly establishes his murder. Appellant’s counsel also did not harp much on these significant aspects and he opted to concentrate only on the fact that appellant’s involvement in the crime is not proved conclusively to the hilt and hence he deserves acquittal and such a contention, in our summation, carries must weight and substance for hereinafter reasons and discussions. 13. It is manifest from the record that so far as sons and nephew of the deceased, PW6, 7, 8 & 9, are concerned, they were intimated about the murder by one Panu Sahu resident of village Patna. They had no first hand information regarding the crime and hence their depositions can be bracketed only as hearsay evidences relating to actual murder. What is most piquant aspect is that Panu Sahu was not examined in the trial to state how he came to know about the murder of the deceased. The logical inescapable conclusion is that whatever PWs 6 to 9 have testified before the court, firstly has not been established beyond all reasonable doubt and most significantly is all hearsay and in admissible in evidence. No credibility can be attached to such depositions. What makes the matter in worse is that even sister of the appellant Kalika was also withheld from testifying in court. Prosecution relies upon her disclosure heavily and to be specific that seems to be the only incriminating material against the appellant. Disclosure by Kalika to the informant and his brothers, again is hearsay and no importance can be attached to it, unless Kalika herself corroborates, such a disclosure and deposed how she came to know about the incident. Prosecution relies upon her disclosure heavily and to be specific that seems to be the only incriminating material against the appellant. Disclosure by Kalika to the informant and his brothers, again is hearsay and no importance can be attached to it, unless Kalika herself corroborates, such a disclosure and deposed how she came to know about the incident. In absence of evidences of both the above witnesses the entire prosecution version lies within the realm of totally inadmissible evidences of hearsay of the worst kind and no reliance can be placed on such evidences to hold appellant guilty of the crime. Learned trial Judge while examining the prosecution case, completely ignored this significant legal aspect and fell in the trap of last seen evidence, which makes his entire analysis wrong and unacceptable. 14. Besides above disquieting feature there are unsatisfactory aspect of the prosecution version and to take stock of those, firstly there is no material on record of establish that the appellant had cut a mango and had eaten it as there is no peeled of leaves nor the seed was found nor they have been depicted in the site plan map nor the I.O. has collected and seized them, so much so that site plan does not depict any mango tree nearby at all. It is significant to recollect that the dead body of the deceased was found under a tamarind tree and consequently the first part of prosecution story is left with no corroborative evidence. This makes the disclosure by so called Kalika also extremely doubtful. Secondly, according to the prosecution story itself, the appellant at the beginning of the incident arrived at the incident spot empty handed, as it is prosecution case itself is that he asked knife from the deceased to cut a mango and hence the Katuri, weapon of assault, belonged to the deceased and not to the appellant and there is no evidence to the effect by any witness that the recovered Katuri belonged to the deceased. Thirdly that the recovered Katuri, marked ‘D’ in chemical examiners report had no blood stains on it and hence whether at all it was wielded as a weapon of assault is a disproved fact. Chemical examiners report vide Ext 14 makes this aspect manifest which discredits prosecution case irreparably. Thirdly that the recovered Katuri, marked ‘D’ in chemical examiners report had no blood stains on it and hence whether at all it was wielded as a weapon of assault is a disproved fact. Chemical examiners report vide Ext 14 makes this aspect manifest which discredits prosecution case irreparably. Fourthly, that the FIR, according to informant’s deposition, was prepared only after arrival of the police at the scene of the incident and consequently possibility of it being outcome of concoction and fabrication cannot be ruled out or in any manner, the same is based on information received from Kalika, sister of appellant, who was withheld by the prosecution from being examined in trial compelling us to draw an adverse inference against it and it seems that probably Kalika was introduced during investigation to foist a case against the appellant and since she did not dance on the tune of the informant that her evidence was kept under the carpet and all these attending and surrounding circumstances, on critical analysis, crumbles the entire prosecution edifice. 15. Lastly, but un-eschewably, we now examine the most harangued contention by the State counsel and heavily relied upon by learned trial court, the last seen incriminating evidence. On this score we find the view by the learned trial court completely unjust, inappropriate and fallible. Instead of making an in-depth analysis of oral and documentary evidence, learned trial court has read and analyzed the evidences in a pedantic manner making his conclusions faulty. First of all the last seen theory surfaced only through disclosure by Kalika, who never came in witness box to support her information, secondly, her narration about the manner in which the incident occurred is not borne out from site plan and other evidences on record, thirdly that, according to Crime Detail Form, attached with the paper book, the cadaver of the deceased was lying in an open field “Bari Land”. Since the sole witness of last seen evidence did not depose during the trial, there was no occasion for the trial court to base its opinion on such an un-creditworthy valueless material/ evidence and we out right discard said evidence to hold appellant guilty of such a serious charge of murder. 16. Since the sole witness of last seen evidence did not depose during the trial, there was no occasion for the trial court to base its opinion on such an un-creditworthy valueless material/ evidence and we out right discard said evidence to hold appellant guilty of such a serious charge of murder. 16. Drawing the curtain, we find that the prosecution has miserably failed to establish appellant’s guilt beyond all reasonable doubt and hence allow this appellant’s appeal by setting aside his conviction and sentence recorded through impugned judgment and order and acquit him of the charge of murder and direct that he be set at liberty from jail where ever he is confined forthwith unless he is required in connection with any other case. 17. Appeal is allowed as above. Let this order be intimated to the trial court.