JUDGMENT Vinod Prasad, J. This appeal is directed against the impugned judgment and order dated 29.8.2008 passed by Ad-hoc Additional Sessions Judge, FTC No.II, Cuttack, in S.T.No.33 of 2007, State versus Gagua @ Gagan Jethy, relating to P.S. Chaudwar, District Cuttack, by which learned trial Judge has convicted the appellant for offence u/s 302 I.P.C. and has sentenced him to imprisonment of life, while acquitting the appellant for the offence u/s 379 I.P.C. though he was charged under Section 380 I.P.C. Additionally we take note of ex facie illegality that albeit appellant was also charged with offence u/s 457 I.P.C. but learned trial Judge has not decided appellant’s case for the said charge at all and has completely eschewed that crime and hence we are prima facie of the opinion that the impugned judgement has been rendered in unwarranted haste. 2. The incident in question occurred in residential village of the informant Fakir Charan Jethy/PW1 of village Nirgundi, P.S. Choudwar, District-Cuttack. Laxmidhar Jethy, the deceased and father of the informant had a grocery shop in that village by the road side and Gokulananda Jethy is the younger son of the deceased. On the intervening night between 28/29.5.2006 at 10 p.m. younger son Gokulananda Jethy came to his house after closing the grocery shop and as usual the deceased went to that shop and slept in the varandah of his shop on a cot. Next day morning, on 29.5.2006 at 5 a.m. Dhuba Charan Jena, a co-villager, informed the informant/ PW1 that his father Laxmidhar Jethy was murdered in the night. Hearing the news, the informant and his family members rushed to the shop only to discover the corpse of his father lying on the ground with bleeding injury on his head and shop lying open. On inspection, Gokulananda Jethy found that cash of Rs. One hundred from the cash box, two KGs of Sugar, 12 chained Ghutakhas, and an attaché belonging to teacher Akshaya Kumar Behra containing his files and attires had been stolen. Informant/PW1 Fakir Charan Jethy scribed FIR EXT.1 against unknown person, measured a distance of 8 KMs to P.S. Chodwar and lodged his FIR at 8.30 a.m. as P.S. case no. 82 of 2006 u/s 457/380/302 I.P.C. The police was informed and the case was registered on 29.05.2006 at 8.30 A.M under Sections 457, 380, 302 I.P.C. 3. Informant/PW1 Fakir Charan Jethy scribed FIR EXT.1 against unknown person, measured a distance of 8 KMs to P.S. Chodwar and lodged his FIR at 8.30 a.m. as P.S. case no. 82 of 2006 u/s 457/380/302 I.P.C. The police was informed and the case was registered on 29.05.2006 at 8.30 A.M under Sections 457, 380, 302 I.P.C. 3. Sriharsha Misra, OIC, P.S. Choudwar/P.W.15 registered the crime and immediately initiated the investigation. I.O. examined informant and recorded his statement, visited murder spot and sketched spot map Ext.13, seized padlock vide seizure memo Ext.9, performed inquest and slated inquest memo Ext.2 and then dispatched the dead body for post mortem examination. Wearing apparels of the deceased were seized and other witnesses were interrogated and their statements were penned down. I.O. also pressed dog squad in service by writing to S.O., DFSL vide Ext.14. Pant (M.O.III) and Banian (M.O.V) of accused were also seized. Stolen attaché was also recovered and seized vide seizure memo Ext 6. Accused appellant was arrested on 30.5.2006. Performing other formalities, I.O. / P.W.15 handed over the investigation to second I.O. S.I. Kedarnath Sahu, who finally charge sheeted the accused appellant but was not examined in the trial as a witness. 4. After appellant was summoned by the committal Magistrate, in usual procedural course his case was committed to sessions court for trial, where it was registered as S.T. No. 33/2007, State versus Gagua @ Gagan Jethy. Ad-hoc Additional Sessions Judge charged the appellant with offences u/s 380/457/302 I.P.C. vide charge dated 5.11.2007 and since the appellant abjured those charges, he was prosecuted to establish his guilt. 5. During the trial, prosecution examined in all 15 witnesses, consisting of informant-Fakir Charan Jethy/ P.W.1, Sunil Kumar Jena/P.W.2, Harihara Mohanty/P.W.3, Ananta Charan Jethy/P.W.4, Jagannath Mohanty/P.W.5, Rasananda Pradhan/ P.W.6, Ganeswar Beura/ P.W.7, Gyanendra Barik/ P.W.8, Lingaraj Jena/ P.W.9, Gokula Jethy/ P.W.10, Akhaya Kumar Behera/ P.W.11, Sanatana Mallick/ P.W.12, Giridhari Behera/ P.W.13, autopsy doctor Dr. Punyansu Mohanty/ P.W.14 & first I.O. Sriharsha Mishra/ P.W.15. 6. Plea of the accused was of total denial and false implication. 7. Punyansu Mohanty/ P.W.14 & first I.O. Sriharsha Mishra/ P.W.15. 6. Plea of the accused was of total denial and false implication. 7. Learned trial Judge, held the appellant guilty only of murder charge and hence convicted and sentenced him as above while granting acquittal to him for the charge of theft and did not record any finding regarding offence u/s 457 I.P.C. In the impugned judgment itself learned trial Judge has recorded that so far as evidence of P.W.2 and P.W.10 are concerned, same are insignificant and valueless. Relying upon the blood-stains attires of the appellant as well as recovery of the weapon of assault (Crow-bar), the appellant has been convicted. 8. We have heard Ms. Sumitra Mohanty, learned counsel for the appellant and Sri Sk. Zafrulla, learned Additional Standing Counsel for the State. 9. We don’t want to aggrandize the judgment by slating unnecessary facts which are incipient and trivial for deciding the appeal and hence for the sake of convenience and brevity we concentrate only on the main substratum and the pivotal issues involved in this appeal. As is evinced the incident in question occurred in dark hours of night with no eye witness account and hence entire prosecution version rests solely upon circumstantial evidences. The two most incriminating circumstance according to the learned trial Judge for anointing guilt are blood stains on the draper of the appellant of group ‘A’ and the recovery of Crow-bar at his behest as has already been stated here-in-above. 10. In our opinion, both the above circumstances are indecisive and wholly insufficient to hold the appellant guilty of murder crime and convict him for such an heinous offence. We first turn to the recovery of Crow-bar. It has come in the evidence of Harihara Mohanty/ P.W.3 that he had a crow bar(M.O.I) in his cow shed to tie his calf but it was stolen. Accused while in police custody has confessed his guilt and has spelt out that by the crow bar belonging to P.W.3 that he had murdered the deceased and subsequent to that had disposed off the crow bar in Dudhia pond, which is the common pond of villages Garud and Nirgundi. There after the pond was searched and the crow bar was fished out of it and only then PW3 had identified it to be his crow bar. There after the pond was searched and the crow bar was fished out of it and only then PW3 had identified it to be his crow bar. However the fact remains that during his interrogatory statement, P.W.3 never disclosed about appellant’s confession and throwing of crow bar in the pond nor he had stated that crow bar was recovered in his presence and thus the embellishment made by him for the first time in court does not wear out suspicion about his such deposition in court and we find it very unsafe to rely upon it and hence reject it out right. Furthermore no FIR or intimation was laid to anybody regarding theft of the crow bar by this witness and hence his entire testimony lies in a realm of suspicion only. Cross examination of P.W.3 further revels that he has identified the crow bar to be his because the accused had confessed it to be stolen only after the same was produced by the police before P.W.3. This further erodes trustworthiness of deposition of P.W.3. This pond is assessable to all and sundry at all points of time and hence recovery from an open place also dissipates authenticity of the prosecution evidence. Thus very queerly, it was only after the recovery of the crow-bar that P.W.3 stood up and claimed that the crow-bar belonged to him. This is, in our opinion nothing but an expatiation at the behest of the police and, therefore, cannot be given any credence at all. We reject such evidence. 11. Turning to the other significant aspect of the case, i.e., the recovery of human blood on the attires of the present appellant, we find that circumstance solitarily, to be wholly insufficient for the reason that we don’t know whether the said blood was at all of the deceased or not. Moreover, the recovered attires were kept at the police station for months together before they were despatched for serologist examination on 23.9.2006, whereas the recovery was made on 29.5.2006. We do not know at what point of time the bloodstains came on the clothes of the appellant. Further merely on blood group which may be common to many persons, it is hazardous to hold appellant to be real culprit. 12. But for the two slated circumstances, there is no other circumstance implicating the accused of a serious charge of murder. 13. Further merely on blood group which may be common to many persons, it is hazardous to hold appellant to be real culprit. 12. But for the two slated circumstances, there is no other circumstance implicating the accused of a serious charge of murder. 13. There are other unsatisfactory aspects of the prosecution story and those are that albeit the appellant was charged with an offence of theft, but he was acquitted of that charge to which no challenge has been made by the prosecution. It is recollected here that the prosecution evidence is that the appellant had entered into the grocery shop of the deceased with an idea to commit theft and in that process committed the murder. Once the appellant has been acquitted of the charge of theft, and when the main substratum of the prosecution version itself has been disbelieved by the learned trial Judge consequently, in our opinion, conviction of the appellant for the charge of murder is wholly unsustainable. This aspect is further aggravated by the fact that all the recoveries from the appellant including that of attaché has been disbelieved by the learned trial Judge himself. 14. For holding a person guilty of murder, the ingredients of offence under Section 300, IPC have to be satisfied and in the present case, there is no evidence to that effect. Moreover, appellant was also charged under Section 457 of the IPC, but surprisingly the learned trial Judge has not paid any heed to that offence and has not made any discussion. The entire judgment gives an impression that it has been written in a hurried and slip-shod manner. The view taken by the learned trial Judge, therefore, cannot be concurred and we hereby take a different opinion. We have got very many reasons to criticize the impugned judgment, but refrain from doing so as in our opinion, the evidence brought on record is wholly insufficient to anoint the appellant with the guilt of commission of murder. 15. Appeal is, therefore, allowed. Conviction of the appellant by the impugned judgment and order is hereby set aside. The appellant is acquitted of the charge. Appellant is in jail. He be released from jail custody and set at liberty forthwith, if his detention is not required in any other case.