JUDGMENT : A.K. Mishra, J. The sole appellant has assailed his conviction U/s.302 of the Indian Penal Code (in short "the I.P.C.") and sentence of imprisonment for life, passed by the learned Additional Sessions Judge, Berhampur on 22.8.1997 in Sessions Case No.3 of 1997. 2. A synoptical view of the prosecution case reveals that deceased Padma Gouda is the mother of informant Urmila Gouda. After death of her husband, while Urmila was one and half years old, deceased married Panu Gouda of village Barakolia. Informant was given marriage in village Solandi 14 years prior to the incident, i.e. in the year 1982. Accused Bhagaban Gouda is the son of Naba Gouda. Panu and Naba are agnatic brothers. Panu and deceased Padma had no son. They adopted Bhagaban. Panu had landed properties having yield of 20 varans paddy. Panu had executed a Will in favour of Bhagaban, having condition that Bhagaban would look after them. As Bhagaban defaulted to honour the said condition, the Will was cancelled by Panu. Panu expired in the year 1991, i.e. 5 years preceding the incident. Thereafter the deceased and accused persons locked horns over a proceeding U/s.145 Cr.P.C. in the Court at Bhanjanagar. It was terminated in favour of deceased. Later a civil suit was filed in the court at Bhanjanagar and by the time of the incident in the year 1996, the proceeding was pending. Deceased Padma Gouda used to stay in her daughter's house at Solandi. She often gave visit to her husband's village at Barakolia. Two or three months prior to her death she had returned to village Barakolia. She was maintaining a wandering life. On 7.5.1996, P.W.13, the Grama Rakhi of village Barakolia informed at Jagannathprasad Out Post that a dead body was lying at Kumuti Banjar beyond Hadisahi. The S.I. of Police (P.W.14) of Jagannathprasad Out Post registered U.D. Case No.4 of 1996 and conducted enquiry. He visited the spot. There he found some human hair stained with blood, 8 nos. of teeth, one blood stained saree and one Karata (small container). He seized the same under seizure list (Ext.1) in presence of witnesses including P.Ws.1 and 2. He made inquest over all the human body parts vide inquest report Ext.7) and sent to F.M.T., Berhampur under challan (Ext.5). There he found some human hair stained with blood, 8 nos. of teeth, one blood stained saree and one Karata (small container). He seized the same under seizure list (Ext.1) in presence of witnesses including P.Ws.1 and 2. He made inquest over all the human body parts vide inquest report Ext.7) and sent to F.M.T., Berhampur under challan (Ext.5). On 11.5.1996 informant Urmila (P.W.3) lodged an F.I.R. (Ext.8) at Jagannathprasad Out Post at 3 P.M., scribed by one P. Narasingh Rao. It was reported therein that Chandramani Gouda (P.W.2) and Ladu Jena had come to her village in the morning and informed that accused Bhagaban had murdered her mother on 30.4.1996 at 9 A.M. near Landei Pahada Kumuti Banjar. Hearing this, she accompanied by her blind elder mother (P.W.9), proceeded to village Barakolia. She ascertained from Judhistir Gouda (P.W.5), Jaya Gouda, Dhoba Gouda and Udayanath Gouda (P.W.8) that prior to two days of her mother's death, Bhagaban had proposed to settle up all the disputes and on 30.4.1996 (Tuesday), Bhagaban asked her mother to proceed forest to bring some wooden beams to thatch the roof and they proceeded along with Nila Gouda, the younger brother of Bhagaban towards the forest. Bhagaban was then armed with a "Katuri". Ramahari Sethi (P.W.6) had seen it. She also ascertained that accused, on the pretext of the same had murdered her mother. She has also mentioned in the F.I.R. that she went to the Out Post and identified her mother's blood stained saree and hair and the Karata on being shown by police. The report was registered at Buguda Police Station by O.I.C. as P.S. Case No.58 dtd.11.5.1996 on that day at 7 P.M. and P.W.14 continued investigation. In course of investigation, the investigating officer examined the witnesses and recorded their statement U/s.161 Cr.P.C. P.Ws.1, 4, 5 and 8 have stated about extra judicial confession of accused Bhagaban Gouda. P.W.6 Ramahari Sethi stated to have seen deceased with accused and his brother. Accused Bhagaban gave recovery of weapon of offence Kati (M.O.I). The I.O sent the Kati to the doctor (P.w.15) who examined the same on 6.6.1996. He gave his report Ext.12 and Ext.9 that the bones and hairs found, were of one lady and for the fracture found on the scalp, the death was homicidal and was possible by blunt side impact of Kati (M.O.I). The I.O sent the Kati to the doctor (P.w.15) who examined the same on 6.6.1996. He gave his report Ext.12 and Ext.9 that the bones and hairs found, were of one lady and for the fracture found on the scalp, the death was homicidal and was possible by blunt side impact of Kati (M.O.I). On the basis of police report, learned S.D.J.M. took cognizance and committed the case to the court of Session. One of the accused namely, Nila Gouda faced enquiry before Juvenile Justice Board. Two accused persons namely, Bhagaban Gouda, the present appellant and his father Naba Gound faced trial for the offence U/s.302 and 201 read with Sec.34 of the I.P.C. 3. The plea of defence was denial simplicitor and false implication. 4. Prosecution examined 15 witnesses in all. Defence examined none. Seizure list, inquest report, chemical examination report, spot map, etc. were marked as Ext.1 to Ext.11. On behalf of defence the Willnama and the rent receipts were marked as Ext.A and Ext.B series. The seized articles including blood stained Kati were marked as M.O.I. to M.O.VII. The informant is P.W.3. The doctor who gave report on the bodily parts and also on the weapon of offence is P.W.15. The I.O., both in U.D. Case and in this case, is examined as P.W.14. P.W.12 is a witness to seizure but declared hostile. P.W.13 is the Grama Rakhi who informed the matter resulting registration of U.D. Case No.4 of 1996 before whom the seizure was made at the spot. P.W.10 and 11 are Constable and Grama Rakhi. Both of them, on being directed, took the body parts for test to the doctor P.W.15 vide Ext.4, 5 and 6. P.W.9 is the elder sister of the deceased. She is blind but has identified the seized Karata (M.O.II) seized from the spot being shown by police. P.W.2 is the elder brother of accused Naba. P.W.7 is the brother of P.W.2. P.Ws.1, 2, 4, 7 and 8 are witnesses to extra judicial confession and leading to discovery of M.O.I. P.W.6 is a witness to the last seen theory. 5. Learned Addl. Sessions Judge, on analyzing the evidence on record, found that previous property dispute was the strong motive behind the murder of deceased Padma. He believed the extra judicial confession, though retracted, of accused Bhagaban and recovery of Kati (M.O.I). 5. Learned Addl. Sessions Judge, on analyzing the evidence on record, found that previous property dispute was the strong motive behind the murder of deceased Padma. He believed the extra judicial confession, though retracted, of accused Bhagaban and recovery of Kati (M.O.I). He also believed that deceased was lastly found in the company of the appellant. He did not believe the monologue confession of accused Naba. Learned Addl. Sessions Judge found that the bodily parts found were of deceased Padma and the death was homicidal in nature. As a necessary corollary, he acquitted accused Naba of all the charges. He also acquitted the accused - appellant Bhagaban of the charge U/s.201 of I.P.C. but held him guilty of the offence U/s.302 of I.P.C. and sentenced him to undergo imprisonment for life. 6. Learned counsel for the appellant Mr. Debasis Sarangi buttressed the following submissions:- (i) That the bodily parts found from the spot on 7.5.1996 and the report of P.W.15, the doctor that homicidal death may be possible is not a proof of the fact that deceased Padma was done to death by infliction of injury on 30.4.1996; (ii) that the lodging of F.I.R. by P.w.3 by putting L.T.I. describing the facts found during enquiry in the U.D. case is indicative of the fact that accused persons are framed for previous litigating terms and for that the scribe of the F.I.R. (Ext.8) is neither cited as a witness in the charge sheet nor examined as a witness; (iii) that P.W.6 Ramahari Sethi having disclosed after 10 to 12 days of occurrence that he had seen deceased in the company of the accused persons, he cannot be believed to be reliable enough for last seen together theory; (iv) that P.W.8 having disclosed the presence of police at the time of extra judicial confession, the same cannot be a circumstance to complete the chain; (v) that the seizure of Kati (M.O.) on 11.5.1996 from the spot from where on 7.5.1996 the Karata and the remnants of dead body was found cannot be believed because two persons were alleged to have gone to spot with deceased; and (vi) that the circumstances advanced, being not clinching, the prosecution cannot be said to have proved the charge beyond reasonable doubt and for that accused is to be given benefit of doubt. 7. Learned Addl. 7. Learned Addl. Government Advocate Smt. S. Pattnaik supported the conviction and sentence on the grounds stated in the judgment and further submitted that corpus delicti is not required to be proved when death is homicidal in nature and learned Lower Court has described the same in the sentence hearing part of the judgment. 8. We carefully perused the evidence on record keeping in view the contentious issues raised before us. This is a case based upon circumstantial evidence. The projected circumstances are; (i) Motive; (ii) Extra Judicial Confession; (iii) Discovery of facts on the recovery of weapon of offence; and (iv) Last seen together theory. 9. The essence of evidence is circumstantial in nature. Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda vrs. State of Maharashtra, (1984) AIR SC 1622 has laid down five golden principles of appreciation of evidence in a case solely based upon the circumstantial evidence. These are as follows:- 1. The circumstances from which the conclusion of guild is to be drawn should be fully established. The circumstances concerned "must or should" and not "may be" established; 2. the facts so established should be consistent only with the hypothesis of the guild of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; 3. the circumstances should be of a conclusive nature and tendency; 4. they should exclude every possible hypothesis except the one to be proved; and 5. there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." The prosecution is obliged to prove that the death of deceased Padma was homicidal in nature. This aspect assumes importance because the full dead body was not found. The I.O. (P.W.14) has testified that on 7.5.1996, on getting information from the Grama Rakhi (P.W.13), he registered U.D. Case No.4 of 1996 and proceeded to the spot near Londei hill, Rama Naik Banjar and seized some hairs of human being, 8 nos. of teeth, blood stained saree and a Karata under seizure list (Ext.1) and made inquest vide Ext.7. The inquest report reveals that a skull was found with 3 pieces of ribs. of teeth, blood stained saree and a Karata under seizure list (Ext.1) and made inquest vide Ext.7. The inquest report reveals that a skull was found with 3 pieces of ribs. The evidence of P.W.15, the Doctor and his report Ext.12 and Ext.9 reveal that those body parts were of human origin, female sex and of a deceased about 40 to 50 years old and death might be due to head injury with fracture of the skull bone and such injury could be possible by the blunt side of the Kati which was examined by him. From the spot where the body parts were found, one Karata (M.O.II) and blood stained saree (M.O.V) were seized. P.W.3 the informant had identified the Saree to be of her mother while P.w.9 the elder sister, though blind, had identified the Karata by touch. In our considered opinion, a specific identifying feature can be the peculiar identifying character of a person sans vision. Identification of an article by touch is not illegal. The detection of saree and Karata was made on 7.5.1996 and identification was made on 11.5.1996. The materials on record do not show that the deceased was alive thereafter. In the decision reported in Rama Nand and others Vrs. State of Himanchal Pradesh, (1981) 1 SCC 511 referred to in the decision reported in Sanjay Rajak Vrs. The State of Bihar, 2019 (9) Scale 514 the Hon'ble Apex Court has observed as follows:- "28. But where the fact of corpus delicti i.e. "homicidal death" is sought to be established by circumstantial evidence alone, the circumstances must be of clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death. Even so, this principle of caution cannot be pushed too far as requiring absolute proof. Perfect proof is seldom to be had in this imperfect world, and absolute certainty is a myth. That is why under Section 3 of the Evidence Act, a fact is said to be "proved", if the court considering the matters before it, considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. That is why under Section 3 of the Evidence Act, a fact is said to be "proved", if the court considering the matters before it, considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The corpus delicti or the fact of homicidal death, therefore, can be proved by telling and inculpating circumstances which definitely lead to the conclusion that within all human probability, the victim has been murdered by the accused concerned." 9-A. In the case at hand, for the identification made by daughter and elder sister to the belongings of deceased and the death of deceased being not ruled out, we are of the considered view that the finding of the learned trial court that the death of deceased Padma was homicidal in nature is correct. Hence the same is affirmed. 10. The evidence of P.W.2 and 3 proves the relationship of deceased Padma Gouda with informant and the accused persons. It is not disputed that a civil suit was pending in the court at Bhanjanagar for the property of Panu, husband of deceased Padma between both parties. Enmity is a double edged weapon, it can be the motive for commission of crime and can be the basis for false implication. 11. Deceased was staying alone. The informant has stated that she was not looking after her mother. The fact that the missing of deceased Padma was not noticed by anybody even after Grama Rakhi lodged report about availability of body parts on 7.5.1996 at Out Post till filing of F.I.R. on 11.5.1996, is a pointer that deceased was a wanderer. Availability of an unidentified dead body was reported by the Grama Rakhi (P.W.13) who had not disclosed from whom he came to know, but fact remains proved that U.D. Case No.4 of 1996 was registered on 7.5.1996 and at the spot bones and body parts were detected along with Karata and blood stained saree. F.I.R. was lodged by the daughter informant on 11.5.1996 on which date P.W.2 and one Ladu Jena went to her village and informed about the incident implicating present appellant. In the above back backdrop, the last seen together circumstance is required to be scanned. F.I.R. was lodged by the daughter informant on 11.5.1996 on which date P.W.2 and one Ladu Jena went to her village and informed about the incident implicating present appellant. In the above back backdrop, the last seen together circumstance is required to be scanned. P.W.6 testified that he had seen accused Nila and Bhagaban and deceased Padma going towards Banjar while accused Bhagaban was holding rice in a Tiffin and a Kati. On being asked by him deceased told him that she was going to collect some branches of trees and by then she was put on an orange colour saree. He has categorically admitted that after 10 to 12 days of said fact he disclosed the same at the time of enquiry. Death of deceased was found to have been informed when her wearing saree and Karata were identified on the date of lodging of F.I.R. on 11.5.1996 at the Out Post. If a person being a co-villager is not found for 10 to 12 days and the witness who had seen her with the person having enmity had not disclosed the same, it cannot be accepted that the witness is trustworthy. The time gap is sufficient to create doubt on the last seen together circumstance. In the decision reported in Bodh Raj @ Bodha and Ors. Vrs. State of Jammu and Kashmir, (2002) 8 SCC 45 the Hon'ble Apex Court has held on the principle that "the last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases." Learned trial court has failed to consider this aspect of time while drawing conclusion on last seen together theory. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases." Learned trial court has failed to consider this aspect of time while drawing conclusion on last seen together theory. On careful scrutiny, we have no hesitation to conclude that this circumstance on last seen together as stated by P.W.6 is not clinching enough to be relied upon. 12. On the point of extra judicial confession, P.W.1 has testified that due to litigating terms he enquired from accused Bhagaban while he was coming at about 8.30 A.M. and Bhagaban told him that he had committed a mistake by murdering the deceased on 30.4.1996 by means of a Kati. P.W.1 also stated that he found police officer coming towards that side and told against accused Bhagaban whereafter police officer called accused Bhagaban and accused Bhagaban wanted to give recovery and in their presence he gave recovery of Kati (M.O.I) which was seized under Ext.2 and the statement of accused is Ext.3. In cross-examination this witness was duly contradicted with his earlier statement U/s.161 Cr.P.C. which was proved by I.O. (P.W.14) regarding this part of extra judicial confession. He is a witness to the seizure Ext.1 made on 7.5.1996. P.W.4 has testified that 10 to 12 days after the incident, P.W.1 called accused Bhagaban who admitted his guilty before him and then police and Grama Rakhi reached there and he was present when accused Bhagaban confessed his guilt and P.W.1 told the same to police. This part of evidence was duly contradicted with his earlier statement before police and is proved through I.O. (P.w.14). P.W.8 has deposed that after 4 days of murder when he was near P.W.1, accused Bhagaban appeared there and being asked by P.W.1 he admitted his guilt and at that time police arrived P.W.1 stated about accused Bhagaban and police arrested him and was taken to the spot in a vehicle. In cross-examination he has categorically asserted that P.W.1 asked Bhagaban about the occurrence and police arrived there. P.W.14, the I.O. has stated that on 11.5.1996 at 3 P.M. on receipt of F.I.R. (Ext.8) from P.W.3, he sent the F.I.R. to Buguda police station for registration and thereafter he visited the spot and searched for the accused. In cross-examination he has categorically asserted that P.W.1 asked Bhagaban about the occurrence and police arrived there. P.W.14, the I.O. has stated that on 11.5.1996 at 3 P.M. on receipt of F.I.R. (Ext.8) from P.W.3, he sent the F.I.R. to Buguda police station for registration and thereafter he visited the spot and searched for the accused. On 12.5.1996 he found accused Bhagaban going away and arrested him and he gave confessional statement and led to the discovery of Kati (M.O.I). At this point it is noteworthy that informant P.W.3 was informed on 11.5.1996 by P.W.2 and one Ladu Jena that accused Bhagaban had killed her mother. If that is so, the evidence of P.W.2 and others including the I.O. (P.W.14) that when accused Bhagaban confessed before villagers to have killed Padma, police arrived there, cannot be believed being inconsistent. It is true that time is not the essence of life of villagers but P.W.14 is the I.O. who first registered U.D. case at the Out Post on 7.5.1996 and received F.I.R. on 11.5.1996 and arrested accused on 12.5.1996. The statement of accused was recorded on 12.5.1996. The sequence of events regarding the time of extrajudicial confession at 8.30 A.M. morning whereafter police reached there and took P.Ws.1, 4, 5 and 8 to spot for seizure of M.O.I Kati runs contrary to the fact that I.O. arrested the accused on 12.5.1996 and F.I.R. naming culprit was lodged on 11.5.1996. P.W.2 was a witness to the seizure of body parts on 7.5.1996. He had informed P.W.3 informant on 11.5.1996 implicating accused Bhagaban behind murder of Padma. The deceased was his brother's wife. For four days, he had not reported the missing of Padma either to informant or to police though he witnessed the seizure of body parts of an unidentified person. This conduct does not appear normal to the ordinary human being. His reliability is wholly doubtful. It is difficult to bring harmony in truth from the complexity of incompatibility found in the evidence regarding time, place and arrival of police and proximity of time between the extra judicial confession and statement of accused in the custody leading to discovery of M.O.I. Recovery of M.O.I does not appear natural in the chain of events. It is difficult to bring harmony in truth from the complexity of incompatibility found in the evidence regarding time, place and arrival of police and proximity of time between the extra judicial confession and statement of accused in the custody leading to discovery of M.O.I. Recovery of M.O.I does not appear natural in the chain of events. In the aforesaid Bodh Raj @ Bodha case (supra) it is stated by Hon'ble Apex Court that "it would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under section 27 if the information did come from a person not in the custody of a police officer or did come from a person not in the custody of a police officer." When falsehood is not ruled out in either one of the circumstances advanced by the prosecution, the hypothesis required to be tested cannot be said to have been established beyond reasonable doubt. In the decision reported in Pyare Lal Bhargava Vrs. The State of Rajasthan, (1963) AIR SC 1094 Hon'ble Apex Court has held as follows:- "A retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made. But it has been held that a court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only a rule of prudence. But it has been held that a court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only a rule of prudence. It cannot even be laid down as an inflexible rule of practice or prudence that under no circumstances such a conviction can be made without corroboration, for a court may, in a particular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars." 13. On anatomical survey of evidence on record, the prosecution is found to have failed to prove the circumstances from which the conclusion of guilt of accused could be drawn. The chain is incomplete for which the accused is to be given benefit of doubt. The judgment assailed is not sustainable in the eye of law. In the result, the appeal is allowed. The conviction and sentence of appellant in the judgment dtd.22.08.1997 in S.C. No.3 of 1997 (S.C. No.60/97 G.D.C.) is hereby set aside. The appellant is held not guilty of the offence U/s.302 of I.P.C. and is acquitted thereform. 14. The appellant was granted bail on 16.5.2001 in Misc. Case No.234 of 2001. But from the communication of Addl. Sessions Judge, Berhampur dtd.30.8.2019 it is reported that the appellant is in custody since 30.8.2019. He be set at liberty if his detention is not required in any other case. The appeal is allowed. L.C.Rs. be returned immediately.