JUDGMENT : A.K. Mishra, J. In this appeal, the judgment dtd.10.09.1999 passed by learned Sessions Judge, Sundargarh in Sessions Trial No.63 of 1996 is assailed by both the appellants. By that judgment, the appellant Machu Munda has been convicted U/s.302 and 201 of the Indian Penal Code (in short the "I.P.C.") and sentenced to undergo imprisonment for life for offence U/s.302 I.P.C. and rigorous imprisonment for one year for offence U/s.201 I.P.C. The appellant Butu Munda has been convicted U/s.201 I.P.C. and sentenced to undergo rigorous imprisonment for one year. 2. Put briefly, the case of the prosecution is that deceased Dalka Munda had love affairs with the daughter of accused Machu Munda, namely, Mangala Munda (P.W.2). On 08.11.1995 at about 4 P.M. deceased left his house and did not return. His father - informant searched him. On 20.11.1995 while he was about to report the matter at police station, his son Saranga Munda (P.W.6) told him to have ascertained from accused Machu Munda that deceased had gone to their house on 09.11.1995 and left the house with one Gunju Munda. On 21.11.1995 he lodged missing report of his son which was entered vide Station Diary Entry No.473 at Lahunipada Police Station. The father - informant confidentially learnt from one Khadia @ Naik Munda (P.W.10) that accused Machu Munda and his son Butu Munda had killed his son by throttling and after committing murder, buried the dead body. Thereafter on 24.11.1995 he orally reported the matter before Lahunipada police which was reduced into writing and registered as Lahunipada P.S. Case No.118 dtd.24.11.1995. Investigation was ensued. In course of investigation, accused Machu Munda gave confessional statement and led to give discovery of the dead body of deceased buried on the other side of the Nala of village Karadakudar. The investigating officer got the dead body disinterred from the said place. Thereafter post mortem examination was conducted by Dr. Jayakrushna Sahu (P.W.4). On the same day one lungi of deceased was seized on being produced by Mangala Munda, the daughter of accused Machu Munda. The death was stated to have due to throttling. After completion of investigation charge-sheet was submitted. The case was committed to the court of sessions. Both the accused persons, who are father and son, were tried for offence U/s.302 and 201 read with section 34 of I.P.C. 3. The plea of defence is denial simplicitor. 4. The death was stated to have due to throttling. After completion of investigation charge-sheet was submitted. The case was committed to the court of sessions. Both the accused persons, who are father and son, were tried for offence U/s.302 and 201 read with section 34 of I.P.C. 3. The plea of defence is denial simplicitor. 4. In order to bring home charge, prosecution examined 15 witnesses, out of whom P.W.1 is the wife of accused Machu Munda, P.W.2 is the daughter and P.W.3 is the son of accused Machu Munda, P.W.4 is the doctor who conducted post mortem examination over the dead body, P.W.5 is the father of deceased and informant of this case, P.W.6 and 8 are the sons of informant, P.W.7 is the wife of P.W.6, P.W.9 is an independent witness to leading to discovery and seizure of lungi of the deceased from the house of accused persons, P.W.10 is another independent witness before whom the wife of accused Machu Munda had confidentially disclosed the incident, P.W.11 is another independent witness while P.Ws.12 and 13 are witnesses to leading to discovery, P.W.14 is the police constable who had witnessed the seizure of Station Diary and P.W.15 is the Investigating Officer. Defence examined none. The post mortem examination report, seizure list, discovery statement, etc. are exhibited. 5. Learned trial court believed the evidence of doctor and held that the death of deceased was due to throttling and his dead body was identified by the father. He dis-believed the evidence of P.Ws.5 and 6, the brothers of the deceased as they prevaricated the statement materially and thereby found no eye witnesses to the occurrence. He relied upon the circumstances through P.W.6 that deceased was lastly seen in the house of the accused persons and accused persons gave discovery of the dead body and in absence of any explanation, he held the accused Machu Munda guilty for the offence U/ss.302 & 201 I.P.C. while his son accused Butu Munda guilty of offence only U/s.201 I.P.C. and accordingly sentenced them as stated above. 6. Learned Senior Counsel for the appellant Mr. Devashis Panda submitted with vehemence that when the informant and his son are found wholly unreliable witnesses resulting no eye witness to the occurrence, learned trial court has committed error in relying upon the leading to discovery of dead body to connect two accused persons with the murder. 6. Learned Senior Counsel for the appellant Mr. Devashis Panda submitted with vehemence that when the informant and his son are found wholly unreliable witnesses resulting no eye witness to the occurrence, learned trial court has committed error in relying upon the leading to discovery of dead body to connect two accused persons with the murder. Further the trial court has committed error in relying upon the statement made by P.W.6 to police as substantive evidence to establish last seen theory and for that the chain of circumstances available against the accused persons is incomplete. Further it is submitted that conviction of accused Butu Munda U/s.201 I.P.C. is based upon co accused statement which is very weak piece of evidence and in absence of any other material, the same is liable to be set aside. 7. Learned Addl. Government Advocate Mr. B. P. Pradhan supports the judgment on the grounds stated therein. 8. Now descending upon the evidence, it may be seen that P.W.1, the wife of accused Machu Munda, P.W.2, the daughter of accused Machu Munda, P.Ws.3, 7 and 11 are declared hostile and nothing incriminating is available to further the charge. P.W.9, the Gountia of the village is also declared hostile. He even denied to have given signature in the inquest report. P.W.10 a hostile witness denied to have knowledge regarding death of the deceased. P.W.14 is the police constable who proved the missing entry vide Ext.5. P.W.5, the father of the deceased, is the informant. He testified to have lodged F.I.R. (Ext.2) but in cross-examination he has stated that after 5 to 6 days of missing he submitted the report. Though he started to uplift the story that he had seen the assault on the son but for the contradiction with his earlier statement and F.I.R. and variated version between examination-in-chief and cross-examination, he is rightly found to have not seen any incident resulting death of his son. Similar is the evidence of P.W.6, the brother of the deceased. Learned trial court has rightly appreciated these two witnesses having not seen any assault on the deceased by the accused persons. We concur with the said view of learned trial court. 9. To ascertain the nature of death, the evidence of doctor is carefully examined. Admittedly the post mortem was conducted after 16 days of missing. Learned trial court has rightly appreciated these two witnesses having not seen any assault on the deceased by the accused persons. We concur with the said view of learned trial court. 9. To ascertain the nature of death, the evidence of doctor is carefully examined. Admittedly the post mortem was conducted after 16 days of missing. Doctor has stated that the time of death was more than 15 days from the time of his post mortem made on 26.11.1995. He has stated that the dead body was in decomposition stage and it was difficult on his part to form an opinion regarding cause of death and as he could able to detect a fracture on the bone of the neck, he opined that the death might have been caused by throttling. In cross-examination he has stated that he has not mentioned specifically in the post mortem examination report that he found some internal injury after dissection of the dead body. The post mortem examination report is Ext.1. Though death of the deceased Dalka Munda is proved and dead body is found to have been identified, but it cannot be said conclusively that death was homicidal in nature. The prosecution has left enough space to doubt the nature of the death of deceased Dalka Munda. 10. In absence of the direct evidence, the prosecution now rests its arm on evidence which are in essence circumstantial in nature. Two such circumstances are last seen theory and leading to discovery. It is pertinent to note that accused Butu Munda is convicted only for the offence U/s.201 I.P.C. for having helped his father to bury the dead body. 11. Learned lower court found only the evidence of P.W.6 as first circumstance, that deceased was present lastly in the house of accused persons. It is pertinent to note that accused Butu Munda is convicted only for the offence U/s.201 I.P.C. for having helped his father to bury the dead body. 11. Learned lower court found only the evidence of P.W.6 as first circumstance, that deceased was present lastly in the house of accused persons. P.W.6 was declared hostile and in the cross-examination by Public Prosecutor he has admitted that "It is a fact that I had stated before the investigating officer that accused Butu Munda told me that my brother Dalka Munda had come to his house in the night and that he had taken Handia and that after taking Handia, he went away with Gunju Munda." Learned Lower Court, in his judgment at para-9 has observed that "the evidence of P.W.6 if connected with the fact of leading to discovery, it would go to show that in the case night the deceased was present in the house of the accused persons." The relied upon version quoted above of P.W.6 is nothing but what he has stated before police U/s.161 Cr.P.C. Under law, it cannot be used as a substantive piece of evidence even if it is admitted while answering the leading questions put by the prosecution. In the decision Jania Munda @ Gania and four Ors. Vs. State of Orissa, (2008) 40 OCR 279 the principle is reiterated as follows:- "7. xxxx The prosecution in course of putting leading questions to P.W.1 confronted him with the contents of the F.I.R. and his police statement. P.Ws.4 and 5 were also confronted with their police statements. The learned Trial Court appears to have referred to and relied upon the contents of the F.I.R. as well as the police statements of P.Ws.1, 4 and 5 to find corroboration to the evidence of P.Ws.7 and 8. In doing so, the learned Sessions Judge utterly failed to appreciate the well settled principles of appreciation of the evidentiary value of the F.I.R. and the police statements. Neither the F.I.R. nor the statement made by a witness before the police in course of investigation is substantive evidence. xxxxxx" Before a case against an accused resting on circumstantial evidence can be said to be fully established, the circumstances from which the conclusion of guilty is to be drawn should be fully established. Neither the F.I.R. nor the statement made by a witness before the police in course of investigation is substantive evidence. xxxxxx" Before a case against an accused resting on circumstantial evidence can be said to be fully established, the circumstances from which the conclusion of guilty is to be drawn should be fully established. Law in this regard is well settled by the Hon'ble Apex Court in the decision Sharad Birdhi Chand Sarda Vs. State of Maharashtra, (1984) AIR SC 1622. In our considered opinion the last seen circumstance is not proved by the prosecution and learned trial court has committed an error in relying upon the statement of P.W.6 which was not substantive in nature. 12. The other circumstance which left to be considered is the leading to discovery of a dead body. P.W.15 the investigating officer deposed that during interrogation, accused Machu Munda disclosed to have buried the dead body along with other accused (son) on the other side of the Nala (water channel) of the village and on that basis he sent VHF message to the Sub-Divisional Magistrate, Bonai requisitioning service of Executive Magistrate and DFSL, Rourkela. On 25.11.1995, i.e. on the next day of the lodging of F.I.R. he recorded the statement of accused Machu Munda vide Ext.6. The accused took them to the other side of Nala, pointed out a place stated to have buried the dead body along with his son accused Butu Munda. From that place the Executive Magistrate disinterred the dead body in presence of police and villagers and he made inquest at 3 P.M. vide Ext.3. In cross-examination he has stated that on 25.11.1995 he arrested accused Machu Munda at 1.30 P.M. At 1.15 P.M. he recorded the statement of accused Machu Munda and also of accused Butu Munda. He also admitted that he has not recorded the statement of accused Butu Munda U/s.27 of Evidence Act. Ext.6 contains the confessional statement of accused Machu Munda and within the scope of section 27 of the Evidence Act, the only admissible part of distinct statement is that he and his son had knowledge where the dead body was buried. 13. The independent witness P.W.12 stated that by the time he reached there the dead body was already discovered and was placed by the side of a ditch. 13. The independent witness P.W.12 stated that by the time he reached there the dead body was already discovered and was placed by the side of a ditch. In the cross examination he has stated that both the accused persons along with villagers had gone there. P.W.13 has also stated that father of the deceased identified the dead body to be of his son and by the time he reached there one dead body was already disinterred from underneath the ground and both the accused persons and Magistrate had gone to the spot with police. The evidence of independent witnesses is not clear and consistent. What is revealed from the above evidence that both the accused persons were present to give discovery but the statement of only one accused Machu Munda was recorded vide Ext.6. 13-(a). The legal position as regards joint disclosures was analyzed by the Hon'ble Apex Court in the decision State (N.C.T. of Delhi) Vs. Navjot Sandhu @ Afsan Guru, (2005) AIR SC 3820, wherein it is held as follows:- "14. xxxxxx. Joint disclosures to be more accurate, simultaneous disclosures, per se, are not inadmissible under Section 27. "A person accused" need not necessarily be a single person, but it could be plurality of accused. It seems to us that the real reason for not acting upon the joint disclosures by taking resort to Section 27 is the inherent difficulty in placing reliance on such information supposed to have emerged from the mouths of two or more accused at a time. In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any break, almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27. However, there may be practical difficulties in placing reliance on such evidence. It may be difficult for the witness (generally the police officer), to depose which accused spoke what words and in what sequence. In other words, the deposition in regard to the information given by the two accused may be exposed to criticism from the stand point of credibility and its nexus with discovery. xxxxxx" 13-(b). Leading to discovery of a dead body stands in a different footing. In the decision State of Orissa Vs. Ranjan Singh, (2012) Supp2 OrissaLR 554 it is held that any fact discovered pursuant to the statement of an accused cannot be stretched beyond his knowledge, i.e. direct or indirect about the object concealed and the place of concealment. It is further held in that case as follows:- "25. It cannot be disputed that there is a great deal of difference between a dead body as an incriminating fact and other articles like weapons of offence, blood stains, etc. as incriminating fact. A dead body (with marks of violence if can be found on inquest or on post mortem examination indicative of homicidal death) or for that matter, severed human heads as found in the present case, ipso facto proves commission of a crime and discovery of such dead body or severed human heads at the instance of an accused ipso facto makes the "fact" so discovered incriminating. But, so far as other articles are concerned, until their connection with the crime is proved, the fact discovered does not become relevant as incriminating. Xxxxxxx. 26. But, so far as other articles are concerned, until their connection with the crime is proved, the fact discovered does not become relevant as incriminating. Xxxxxxx. 26. xxxxxxx In other words, from the factum of discovery of a dead body / severed head at the instance of an accused, the Court cannot jump to a conclusion that in view of the self-authorship of the concealment and absence of an exculpatory explanation by the accused, the accused is presumed to have committed the substantive offence of murder. At best, in such a situation, he can be found guilty of offence U/s.201 I.P.C. for having aided in hiding the dead body, etc. xxxxxx" 14. In the decision Kusal Toppo and Another Vs. State of Jharkhand, (2018) 72 OCR 410 (SC) it is held as follows:- "21. The basic premise of section 27 is to only partially lift the ban against admissibility of inculpatory statements made before police, if a fact is actually discovered in consequence of the information received from the accused. Such condition would afford some guarantee. We may additionally note that, the courts need to be vigilant while considering such evidences. This court in multiple cases has reiterated the aforesaid principles under Section 27 of Indian Evidence Act and only utilized Section 27 for limited aspect concerning recovery [prefer Pulukuri Kotayya V. King Emperor, 76 I.A. 65; Jaffar Jussain Dastagir V. State of Maharashtra, (1970) AIR SC 1934. xxxxxx" 15. We have already stated that medical evidence regarding nature of death is shaky while the independent witnesses are wonky. In the case in hand the leading to discovery of a dead body, as found from the fractured joint disclosure is tootless. The knowledge of both the accused persons about the place from where dead body was recovered if tested with the time sequence, would lead to a hazy circumstance which cannot be said to have excluded the innocence of the accused persons. 16. Digging deep into the evidence, no material is found against accused Butu Munda save and except the co-accused statement that he helped him in burying the dead body. It is the substantive evidence of eye witnesses that at the time of leading to discovery accused Butu Munda had accompanied his father to the place of recovery. In absence of any other evidence, co-accused statement cannot be the basis for conviction. In the decision Kashmira Singh Vs. It is the substantive evidence of eye witnesses that at the time of leading to discovery accused Butu Munda had accompanied his father to the place of recovery. In absence of any other evidence, co-accused statement cannot be the basis for conviction. In the decision Kashmira Singh Vs. State of Madhya Pradesh, (1952) AIR SC 159 Hon'ble Apex Court has categorically held that the confession of an accused person against a co-accused is not evidence in the ordinary sense of the term. Such confession can only be used to tend assurance to other evidence against co-accused. 17. Conspectus of above analysis, the circumstances sought to be proved, i.e. last seen theory and the leading to discovery of a dead body fall short to exclude every possible hypothesis except the one to be proved. Innocence of both the accused persons are not ruled out. The cardinal principle of criminal jurisprudence is that a case can be said to be proved only when there is certain and explicit evidence and no pure moral conviction. Learned trial court has mis-appreciated the evidence on record. The conviction of both the appellants by learned trial court is not sustainable being erroneous and is to be interfered with in the appeal. In the result the conviction and sentence of both the accused - appellants Machu Munda and Butu Munda are set aside. They are acquitted from the charges. 18. Both the appellants are on bail upon appeal vide order dtd.08.03.2000 in M.C. No.372 of 1999. Their bail bonds be cancelled. The CRA is allowed. L.C.Rs. be returned immediately.