JUDGMENT : J.P. Das, J. This appeal is directed against the judgment dated 29.05.1992 passed by the learned Addl. Sessions Judge, Bargarh in Sessions Trial No.24/9 of 1992 convicting the accused appellant under Section 325, I.P.C. and sentencing him to undergo R.I. for three years. 2. The prosecution case as unfurled was that on 03.07.1991 at about 2.30 P.M. the appellant appeared at Padampur Police Station and told the A.S.I. present there that on the same day at about 10 a.m. due to some earlier dispute between himself and the deceased Duryodhan Hati they had a quarrel in the field near village Dangaghat and threw stones at each other. One Keshab Hati was also present there and the appellant threw a stone hiding behind the mango tree which hit the head of the deceased who fell down on the ground. He further told that he ran near the victim and further assaulted on his head by means of a stone as a result of which the victim died at the spot. Thereafter he along with Keshab Hati carried the dead body to another field. Keshab went away and out of fear the appellant Hadu Hati came to the police station to report. The concerned A.S.I. made a Station Diary entry and proceeded to the spot. He found the dead body on the land of one Yudhistir Sahu. He noticed two bleeding injuries one on the head and one on the nose of the deceased. Thereafter the O.I.C., Padampur Police Station arrived there and the A.S.I. submitted a written report before him narrating the incident which was treated as F.I.R. and the investigation was taken up. In course of investigation, both the present appellant and Keshab Hati were arrested and while in police custody they led the police to recover a piece of stone from inside a well and the cycle of the deceased from another field, which were seized. Inquest was conducted over the dead body and sent for postmortem. Witnesses were examined and after completion of investigation charge sheet was submitted against the present appellant and Keshab Hati under Sections 302/201/34, I.P.C. 3. Both the accused persons faced trial with a plea of complete denial. 12 witnesses were examined on behalf of the prosecution as against none preferred by the accused persons in defence. Witnesses were examined and after completion of investigation charge sheet was submitted against the present appellant and Keshab Hati under Sections 302/201/34, I.P.C. 3. Both the accused persons faced trial with a plea of complete denial. 12 witnesses were examined on behalf of the prosecution as against none preferred by the accused persons in defence. Learned trial court on evaluation of the evidence on record found that no case was made out against the accused Keshab Hati and accordingly acquitted him and convicted the present appellant under Section 325 of the I.P.C. by the impugned judgment. 4. It has been submitted in the appeal that the prosecution entirely relied upon a solitary witness namely P.W.6 who was a chance witness and was examined by the police after about two months of the alleged occurrence. Further the evidence of the said witness was not at all trustworthy in view of the serious contradictions in his statement made before the police, the statement recorded under Section 164, Cr.P.C. and the statement given before the court. It has also been submitted that there was absolutely no evidence on record to show that the stone allegedly thrown by the appellant actually hit the deceased, apart from the fact that there were number of lacuna in the investigation conducted by the police. 5. In course of hearing, learned counsel for the appellant reiterated the submissions taken as grounds of appeal and contended that the conviction as per the impugned judgment is not at all sustainable. As against this it was submitted by learned counsel for the State that the conclusion reached by the learned trial court is un-assailable for the reasons that there was admitted enmity between the appellant and the deceased and that throwing of stone by the appellant has been stated by an independent witness and that the appellant while in custody led the police to recover the weapon of offence as stone from inside a well and that the doctor found injuries on the head of the deceased with the opinion that those could have been possible by the recovered stone and in the last but not the less, the appellant himself appeared at the police station and confessed his guilt pursuant to which a station diary entry was made followed by the investigation. 6. 6. At the outset it may be mentioned that framing the charge under Section 302 of the I.P.C. and after conducting the trial there for the conclusion to hold the accused guilty under Section 325 of the I.P.C. does not appear to be legally acceptable in the instant case. The learned trial court has held that it was not certain as to whether due to throw of stone by the accused Hadu Hati only for once both the injuries on the head of the deceased were caused resulting in his death but the throw of stone might have contributed something to the result of his death though not it was the full cause of his death. With this observation the learned trial court held that there was no offence under Section 302, I.P.C. but an offence under Section 325, I.P.C. was made out. 7. The observation of the learned court below could have led to find out an offence under Section 304 Part II of the I.P.C. if at all it was believed that the cause of injury was the stone throwing by the accused which ultimately resulted in the death of the victim. However, going through the entire material placed on record it is seen that the investigation made by the police was perfunctory and casual. The evidence led on behalf of the prosecution was not at all convincing and there were so much contradictions and missing links that it is impossible to reach a conclusion that the prosecution proved the case beyond reasonable doubts. This observation of mine at the out set is for the reasons to follow. 8. As per the prosecution case, after the accused appeared at the Police Station, the police party proceeded to the spot, found the dead body and on the next day, the two accused persons while in police custody allegedly led the police to recover the stone and one cycle. But peculiarly the Investigating Officer appearing as P.W.11 admitted in his cross examination that he had not made a memorandum of statement as required under Section 27 of the Evidence Act in respect of the leading to discovery. But peculiarly the Investigating Officer appearing as P.W.11 admitted in his cross examination that he had not made a memorandum of statement as required under Section 27 of the Evidence Act in respect of the leading to discovery. Of course one witness has been examined as P.W.7 to support the prosecution case that the two accused persons while in police custody admitted their guilt and led the police to recover the alleged materials but in absence of strict compliance of the provision required under Section 27 of the Evidence Act, the prosecution case suffered a serious set back. 9. Now coming to the trial of the case, when the charge was under Section 302 of the I.P.C., the learned Trial Judge did not frame a question as to whether the death of the deceased was homicidal or not, which is the very first ingredient of the alleged offence. The learned court simply observed in paragraph-4 of the impugned judgment that the prosecution was required to prove if the accused persons intending to cause death of Duryodhan Hati assaulted him to death inflicting injuries on his person. Further, the doctor appearing as P.W.10 also admitted in his cross examination that he mentioned in the post-mortem report that the cause of death to be cardio respiratory failure, of course due to inflicted head injury. But he spoke in the same breath that cardio-respiratory failure may be due to disease in cardio-vascular system. He also admitted that since there was no column in the prescribed form he did not note that the two injuries found on the body of the deceased were sufficient in ordinary course of nature to cause death and he has also not mentioned as to whether the injuries were ante-mortem or post-mortem in nature. 10. Now coming to the injuries allegedly sustained by the deceased as per the doctor’s report, he found two injuries on the head of the deceased. The P.W.2 an independent witness who accompanied the police to find the dead body also stated that the deceased had one bleeding injury on his left side head. This P.W.2 was also an inquest witness. Similarly, P.W.3 who happens to be a Grama Rakhi stated that there was no injury on the nose or mouth of the deceased except one bleeding injury on the left side of his head. Similar was the version of P.W.4. This P.W.2 was also an inquest witness. Similarly, P.W.3 who happens to be a Grama Rakhi stated that there was no injury on the nose or mouth of the deceased except one bleeding injury on the left side of his head. Similar was the version of P.W.4. Not only that the P.W.1, the A.S.I. of Police who after making Station Diary entry went to the spot and detected the dead body stated that he found two bleeding injuries one on his head and other on his nose. But peculiarly the inquest report and the post mortem report found two injuries on the head of the deceased. Added to this it is the case tried to be established by the prosecution through P.W.6 a chance eye witness that the accused Hadu Hati the present appellant had thrown one stone from a distance which hit the head of the deceased. Learned trial court has also observed in the impugned judgment as stated earlier that throw of a stone by the accused Hadu Hati could not have possibly caused two injuries. Juxtaposing all these circumstances, the prosecution case including the investigation suffered a serious lacuna. 11. Now coming to the occurrence the prosecution solely relied upon the version of P.W.6 a chance witness. This witness was examined about two months after the occurrence. This part of the evidence has been seriously assailed on behalf of the appellant before this Court with the submissions that this witness was a got up witness and should not have been believed by the learned trial court. This witness in his statement before the police recorded under Section 161, Cr.P.C. stated that while the deceased was watching cattle in the field the present appellant coming out of the near by jungle pelted a stone at the victim and another boy coming from behind a near by mango tree also pelted a stone at the victim as a result of which the victim Duryodhan Hati fell down at the spot. He has also stated that he did not know that boy who pelted the second stone. He further stated that at a distance about 100 feet from the spot one Sankirtan Hati was sitting below a mango tree. No effort has been made by the Investigating Agency to examine this Sankirtan Hati nor any plausible explanation has been provided therefor. He has also stated that he did not know that boy who pelted the second stone. He further stated that at a distance about 100 feet from the spot one Sankirtan Hati was sitting below a mango tree. No effort has been made by the Investigating Agency to examine this Sankirtan Hati nor any plausible explanation has been provided therefor. However coming to the statement of the chance witness P.W.6, after giving his statement before the police he was examined under Section 164, Cr.P.C. In his such statement he has stated that while he was returning from nursery he found accused persons Hadu Hati the present appellant and Keshab the acquitted accused assaulted Duryodhan Hati by means of stone. He also stated that at the time of occurrence Sankirtan Hati was sitting near the place. Thus this statement of the witness was completely different from his statement given before the police. 12. Now coming to his evidence before the court he stated that accused Hadu Hati came running to the pumpkin field where the deceased was present and threw a stone towards him and the deceased fell down on the land. He further stated that the other accused Keshab was running towards the place. Being confronted with his earlier statements he has denied to have given the same. He also denied to have stated that he had seen Sankirtan Hati sitting under a mango tree near the place of occurrence. It needs no mention that a witness with so much of contradictory versions can never be believed so as to be accepted in support of a prosecution case leading to conviction of the accused. That apart the specific conduct of this accused also put a question mark on his veracity. He has admitted in his cross examination that he did not tell anybody about the occurrence. As per his version, he knew that police had come to the spot and he also saw the police when they went to the spot through their village but all those days. Thereafter, he remained silent to be found out by the police two months thereafter as a witness to the occurrence. 13. Learned counsel for the State submitted that delay in examining the witness cannot be taken as an adverse stand against the prosecution case. Thereafter, he remained silent to be found out by the police two months thereafter as a witness to the occurrence. 13. Learned counsel for the State submitted that delay in examining the witness cannot be taken as an adverse stand against the prosecution case. True, but as discussed herein above the contradictory statements and the conduct of this witness can never make any prudent mind to accept his versions in support of the prosecution case. If the evidence of this witness is kept aside, there is no other evidence relating to the occurrence. Another aspect which cannot be lost sight of relating to the occurrence is that as per the prosecution case the accused pelted a stone at the deceased which hit him on his head. The Investigating Officer proved the spot map and stated in his cross examination that the distance between the deceased and the accused Hadu Hati was about 15 feet as per the spot map Ext.15. The doctor had examined the stone the alleged weapon of offence said to have been recovered at the instance of the present appellant. The doctor stated that the said stone with its weight can come up to 5 feet if thrown by force by the accused. Thus even if it is believed for a moment that the accused pelted a stone towards the deceased it is not known nor proved as to whether that stone reached the victim, much less hit his head. That apart as discussed earlier although the witness stated to have noticed only one injury on the head of the deceased, the doctor found two and it is not known as to how the second injury was caused. Going back to P.W.6 in his statement recorded under Section 161, he had stated that another boy whom he did not know also threw a stone at the victim coming from behind a mango tree. Neither any effort has been made by the Investigating Agency in order to find out as to who was that boy nor any explanation has been provided therefor. That leaves a big gap in the prosecution case creating a possibility of involvement of some other person in throwing of stone and causing of injury. Added to that it may be reiterated that one Sankirtan Hati was said by P.W.6 to have present at the time of occurrence. 14. That leaves a big gap in the prosecution case creating a possibility of involvement of some other person in throwing of stone and causing of injury. Added to that it may be reiterated that one Sankirtan Hati was said by P.W.6 to have present at the time of occurrence. 14. It was strenuously contended by the learned counsel for the State that the admitted previous enmity between the appellant and the deceased has been told by the witnesses. Further the accused persons have led the police the recover alleged weapon of offence which was supposed to be within the exclusive knowledge of the said accused persons and further the conduct of the accused in going to the police station and reporting in the matter also points the finger of guilt towards him. Lastly relying on the decision of the Hon’ble apex Court reported in (2013) 7 SCC 45 , Harivadan Babubhai Patel vs. State of Gujarat, it was submitted that when no appropriate explanation has been given by the accused when incriminating circumstances are put to him and he simply denies the same, as in the instant case it can be counted as providing a missing link for believing the chain of circumstances against the accused. Suffice it to say that when there is availability of a chain of circumstances, any single missing link can be searched for taking recourse to the position of law as advanced. But in the instant case the detailed discussion of the circumstances as placed on behalf of the prosecution taken together with the evidence placed on record, the so called links of circumstances lie so scattered that conceiving a chain thereof is not only improbable but also impossible. 15. To sum of the positions, there was no eye-witness to the occurrence and the only chance witness examined for the purpose was not at all believable. Even believing him for a moment it became doubtful as to whether the stone allegedly thrown by the appellant hit the victim on his head so as to cause the injuries. On the material placed by the prosecution it remained available that there was another stone thrown by another person which remained a mystery. The witnesses found only one injury on the head where as the doctor found two. The doctor admitted not to have mentioned as to whether those injuries were ante-mortem or post-mortem in nature. On the material placed by the prosecution it remained available that there was another stone thrown by another person which remained a mystery. The witnesses found only one injury on the head where as the doctor found two. The doctor admitted not to have mentioned as to whether those injuries were ante-mortem or post-mortem in nature. The solitary weapon that the prosecution held for its case was the leading to recovery by the accused persons. But that also suffered from the legal deficiency since the required provisions under Section 27 of the Evidence Act were not complied with. 16. In view of the aforesaid facts and circumstances, it would be hazardous to believe even for a moment that the present accused appellant was the author of the injury on the head of the victim so as to be liable under Section 325 of the I.P.C. much less under Section 302 of the I.P.C. 17. In the result of the aforesaid findings, I am of the view that the impugned judgment of conviction and sentence as passed by the learned Addl. Sessions Judge, Bargarh in S.T. Case No. 24/9 of 1992 is not sustainable in law and is accordingly set aside. The Criminal Appeal is accordingly allowed. The accused appellant is acquitted of the charge and is set at liberty. The bail bond furnished by the accused shall stand cancelled. Appeal allowed.