JUDGMENT : D.Dash, J. The Appellants, by filing this Appeal, have called in question the judgment of conviction and order of sentence dated 27th October, 2010 passed by the learned Sessions Judge, Cuttack, in S.T. Case No.271 of 2009 arising out of G.R. Case No.74 of 2009 corresponding to Banki P.S. Case No.63 of 2009 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Banki. The Appellants (accused persons) thereunder has been convicted for committing the offence under section 302/34 of the Indian Penal Code, 1860 (for short, ‘the IPC ’). Accordingly, each of them has been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- (Rupees Ten Thousand) in default to undergo rigorous imprisonment for one (1) year each. 2. PROSECUTION CASE:- Accused Ratikanta Mohapatra and Bibhuti Mohapatra are the two sons of Ajati @ Ajaya Mohapatra and accused Anusaya Mohapatra is the wife of said Ajati @ Ajaya. It was stated that Ajay had been to the market to purchase tea and sugar. Ajay, having left the house in the evening, did not return. So, accused Ratikanta and others searched for him till 9.00 p.m. Having failed in their mission, they returned home in the night. Thereafter, thinking that Ajay might have gone somewhere-else, they went for sleep. In the next morning, Ajay had not returned home. It was around 7.00 a.m, some girls of Tira Sahi came and told accused Ratikanta that Ajay was lying dead in a pool of blood at Mandakula. Receiving the said information, accused Ratikanta and Anusaya went to the place and found Ajay lying dead with cut injuries on his neck and nose. The villagers by then had arrived at the spot. A knife was found lying near the dead body of Ajay. The IIC (P.W.13), receiving telephonic information from the Sarpanch, namely, Bhagirathi Pani (P.W.1) about the dead body lying near the Mandakula and having entered the said fact in the Station Diary Book maintained at the P.S., had left for the spot with other police personnels to verify the correctness of said information. There around 9.00 a.m., accused Ratikanta lodged the written report. That report being received by the IIC (P.W.13), the same was treated as FIR (Ext.13) and upon registration of a case, investigation was taken up. The Investigating Officer (I.O.-P.W.13), in course of the investigation, examined the accused Ratikanta and other two accused persons. There around 9.00 a.m., accused Ratikanta lodged the written report. That report being received by the IIC (P.W.13), the same was treated as FIR (Ext.13) and upon registration of a case, investigation was taken up. The Investigating Officer (I.O.-P.W.13), in course of the investigation, examined the accused Ratikanta and other two accused persons. He also requisitioned the service of tracker dog. The I.O. (P.W.13), having visited the spot, prepared the spot map (Ext.14). He too held inquest over the dead body in presence of the witness and prepared the report (Ext.1). He sent the dead body of Ajay for post mortem examination by issuing necessary requisition. Few more witnesses were examined and incriminating articles were also seized. In course of investigation, materials were collected by the I.O. (P.W.13) that the informant Ratikanta and his brother as well as his mother are the culprits, accused Ratikanta was arrested. It was stated that, he, being in police custody, giving the statement and gave the recovery of a knife at Mandakula and also his wearing apparels. The statement of Ratikanta that he had kept the knife and wearing apparels in a place near Mandakula and if he would be led to the place, he would give recovery of the same, had been recorded by the I.O. (P.W.13) under Ext.5. Pursuant to the statement, accused Ratikanta is said to have led the police and other witnesses in giving recovery of those incriminating articles and his blood stained wearing apparels. The seized incriminating articles were sent for chemical examination through Court. On completion of investigation, the I.O. (P.W.13) submitted the Final Form placing these three accused persons to face the Trial for commission of the offence under section 302/34 of the IPC . 3. Learned S.D.J.M., Banki, on receipt of the Final Form, took cognizance of the said offence and after observing the formalities committed the case to the Court of Sessions for Trial. That is how the Trial commenced by framing the charge for the aforesaid offences against these accused persons. 4. The prosecution, in support of its case, has examined in total thirteen (13) witnesses during Trial. Out of them, P.W.1 is the Sarpanch of the concerned Gram Panchayat, who had telephonically informed the I.O. (P.W.13) about the occurrence and he is also a witness to the inquest. 4. The prosecution, in support of its case, has examined in total thirteen (13) witnesses during Trial. Out of them, P.W.1 is the Sarpanch of the concerned Gram Panchayat, who had telephonically informed the I.O. (P.W.13) about the occurrence and he is also a witness to the inquest. P.Ws.2 & 3 are two witnesses relating to the circumstance that they had last seen the deceased in the company of these accused persons. The daughter- in-law of the deceased is P.W.7. Two seizure witnesses are P.Ws.6 & 8 and so also P.Ws.4, 5, 11 & 12. The Doctor, who had conducted the post mortem examination over the dead body of the deceased is P.W.10 and the I.O., as noted above, has come to the witness box as is P.W.13. 5. Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Exts.1 to 20. Out of those, the important are, the FIR (Ext.13), the inquest report (Ext.1), the post mortem report (Ext.8), spot map (Ext.14), report of the Dog squad (Ext.15) and the statement of accused Ratikanta (Ext.5). The reports showing the result of chemical examination and serological examination are Exts.18 & 19 respectively. 6. The accused persons have taken the plea of complete denial and false implication. They, however, have not tendered any evidence in support of their defence. 7. The Trial Court, having gone through the evidence of the Doctor (P.W.10), who had conducted the autopsy over the dead body of the deceased and had noted several such injuries in total numbering sixteen (16) over different parts of the dead body and his report to that effect (Ext.8) as also the evidence of other witnesses, has arrived at a conclusion that the death of Ajay was homicidal in nature. The Trial Court then being conscious of the fact that the prosecution case is based on circumstantial evidence, having gone through the evidence let in by the prosecution, has culled out certain circumstances, which we would discuss and finally upon cumulative examination of the circumstances, the answer has been rendered that the prosecution has established the charges against the accused persons beyond reasonable doubt. Accordingly, the accused persons, having been convicted for commission of the offence under section 302/34 of the IPC , they have been sentenced as afore-stated. 8. Mr. Accordingly, the accused persons, having been convicted for commission of the offence under section 302/34 of the IPC , they have been sentenced as afore-stated. 8. Mr. Lalit Mishra, learned counsel for the Appellants (accused persons), in view of the evidence of the Doctor (P.W.10), while not disputing the nature of death of Ajay to be homicidal, submitted that the circumstances, which are said to be incriminating and as per the view of the Trial Court, point finger of accusation at these accused persons have not at all been proved by leading clear, cogent and acceptable evidence beyond reasonable doubt. He further submitted that those circumstances even if are joined together do not complete the chain of events in ruling out all the hypothesis other than the guilt of the accused persons. He, therefore, submitted that the Trial Court’s finding as against these accused persons holding them guilty for commission of murder of Ajay is not sustainable. In buttressing the above, he has taken us through the evidence of the prosecution witnesses (P.Ws.2 & 3) and also other witnesses including the I.O. (P.W.13) in placing further as to how those are not believable for the circumstances, which the prosecution has projected to stand, which we would take up in our discussion to follow while addressing the contention. 9. Mr.P.K.Mohanty, learned Additional Standing Counsel for the Respondent-State, while supporting the finding against these accused persons, contended that the prosecution has proved the circumstances such as the motive of the accused persons behind commission of such crime, the last seen theory, the recovery of the axe at the instance of the accused Ratikanta pursuant to his statement before the police while in police custody in leading them to the place for giving recovery of the same and the conduct of the accused persons by giving false information. According to him, all these circumstance when cumulatively viewed complete the chain in every respect leaving no any reasonable ground for the conclusion consistent with the innocence of the accused persons and those, according to him, lead to say that in all human probability, the act must have been done by these accused persons. According to him, all these circumstance when cumulatively viewed complete the chain in every respect leaving no any reasonable ground for the conclusion consistent with the innocence of the accused persons and those, according to him, lead to say that in all human probability, the act must have been done by these accused persons. When the prosecution has examined the Doctor, who had conducted the post mortem examination over the dead body of the deceased, i.e., P.W.10, who has stated all the details of the injuries numbering 16 which he had seen over the person of the deceased and has noted their seats and dimensions in his report (Ext.8),which further receive corroboration from the evidence of the I.O. (P.W.13), who had noted all those in his inquest report (Ext.1) and also the evidence of other witness, who had seen the deceased lying dead with injuries all over his body in the absence of any challenge to the same from the side of the defence and when it is also not so questioned before this Court, we find all the reasons to concur with the finding of the Trial Court that the death of Ajay was homicidal in nature. 10. At this juncture, the settled principle of law holding the field of appreciation of evidence in arriving at a conclusion as to the guilt of the accused/accused persons in the matter of commission crime are required to be placed. 11. In cases, where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. The following conditions must be fulfilled before a case against an accused can be said to be fully established : “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ‘must or should’ and not ‘may be’ established. There is not only a grammatical but a legal distinction between ‘may be proved’ and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade -V- State of Maharashtra, where the following observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions; (2) the facts so established should be consistent only with the hypothesis of the guilt 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.” These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence. [Ref:- Sharad Birdhichand Sarda -V- State of Maharashtra ; (1984) 4 SCC 116 ]. 12. Bearing the above principles in mind, now let us first of all place the circumstances, which have been noted by the Trial Court to have been established. [Ref:- Sharad Birdhichand Sarda -V- State of Maharashtra ; (1984) 4 SCC 116 ]. 12. Bearing the above principles in mind, now let us first of all place the circumstances, which have been noted by the Trial Court to have been established. Those are:-(a) the last seen theory; (b) the motive; and (c) recovery of blood stained wearing apparels from the place known to accused Ratikanta, which was at his instance. Coming to the first circumstance, we find the Trial Court to have taken the one that the deceased was last seen in the company of these accused persons as the most important. The prosecution has so proved the same through the evidence of the witnesses, i.e., P.Ws.2 & 3. But before going to analyze the evidence of P.Ws.2 & 3, it must be stated that all these accused persons and deceased are the members of one family and out of three accused persons, two are sons of the deceased and third one is the wife of the deceased. It has been deposed by P.W.2 that it was around 10 p.m. in the night, when he was returning from Mango Tope after easing, he had seen accused Anusaya with her two sons and her husband Ajay (deceased) going towards AMBA TOTA BILA and on the next morning, he, having gone to Cuttack and returned therefrom in the night, heard about the murder of Ajay. This is the simple version of P.W.2. First thing that strikes to our mind that when this witness, at that odd hour, saw all these accused persons and deceased going together towards Mango Tope, he does not state to have expressed any anxiety over the matter when it could have been taken by him that all of them were going to ease or to do any work. The natural human instinct that being a co-villager, one would ask any of those accused persons as to the reason of their going towards Amba Tota more particularly when he does not say that they were in inimical terms with him, very much lacks in the conduct of P.W.2, which rather runs against the normal response of a person in that situation. His evidence is also to the effect that he had not told any person of their village about what he had seen in the last night, which obviously refers to the time even after his return from Cuttack on the next day night. He during Trial had stated to be disclosing the fact before the Court for the first time. In such state of affair, we are unable to place any reliance upon said part of the evidence of P.W.2. According to us, the evidence of P.W.2 does not pass through the test of reliability. The evidence of P.W.3 is to the effect that around 10.00 p.m, he had seen the accused persons and the deceased Ajay proceeding towards the AMBA TOTA BILA. He is also not stating as to where he was at that time and how could he see them. He has specifically stated to have not asked the deceased or the accused persons as to the reason for them to proceed during that odd hour and that runs with the same comment, which we have already given in respect of the evidence of P.W.2. Its again a doubtful feature which appear in their evidence that they having stated to be having the knowledge about the family dissention, they having been all the accused persons and the deceased together at the odd hour of night in a place, which was not frequented by the villagers during that time, have taken that so lightly even not having the temptation to tell others on returning home. One more important thing we find that both these witnesses are not stating anything that at that time, deceased was found to be in a frightened state and the accused persons to be in an enraged mood and they have stated nothing about their mood so marked by them which is certainly important as they are not attributing any overt act to any of these accused persons. In view of such state of affair in the evidence of P.Ws.2 & 3, we are unable to place reliance upon the same to conclude that the prosecution has established the fact that the deceased in the company of these accused persons in the night around 10.00 a.m. was seen to be proceeding towards AMBA TOTA. 13. The second circumstance is the motive. 13. The second circumstance is the motive. The motive behind the crime is said to be the perversity of the deceased in repeatedly sexually harassing his daughter-in-law (P.W.7). She, having left the matrimonial home, was telling not to return any more. The prosecution in this case, having examined P.W.7, who is the daughter-in-law of the deceased and wife of accused Bibhuti as their star witness, it is seen that she has not supported the prosecution case in any manner. Simply because of the fact that she was then residing in her father’s place carrying child in her womb, no such inference can be drawn that the reason for her leaving the matrimonial home was centering around any devilish act of the deceased-father-in-law when what were those acts/deeds of the deceased are not coming to surface through the evidence. The prosecution, having cross-examined this P.W.7, with the permission of the Court, has failed to bring out anything to provide any support to all said facts, which according to it constitute motive. The Trial Court, in this situation, is not right in accepting the evidence of P.Ws.2 & 3 that they having stated P.W.1 had left the matrimonial home because of some family dispute as the proof of notice. Thus, we find that the prosecution has proved the motive. 14. The next circumstance is the recovery of blood stained wearing apparels (M.O.V-Ganji and M.O.VI-Saree). The evidence of the I.O. (P.W.13) is to the effect that accused Ratikanta, while in his custody in presence of Nirod (P.W.8) and Gokulananda (P.W.6) confessed to have committed the murder of his father with the help of his brother Bibhuti and mother Anusaya in further stating her they did so and for what reason/s. Such evidence is wholly inadmissible in evidence being hit under section 25 of the Evidence Act. He then states that accused Ratikanta disclosed that he would lead them to the place of concealment and give recovery of the bloodstained wearing apparels. Here we this P.W.13 has not deposed as to where accused Bibhuti gave said statement and whether other accused persons were then by his side or somewhere else and whether they had also gone or then were scot-free. The two witnesses (P.Ws.6 & 8) have not supported all the above facts. Here we this P.W.13 has not deposed as to where accused Bibhuti gave said statement and whether other accused persons were then by his side or somewhere else and whether they had also gone or then were scot-free. The two witnesses (P.Ws.6 & 8) have not supported all the above facts. When it is said that accused Ratikanta stated to have collected the wearing apparels and kept; it is not clearly stated as to whose wearing apparels were those. The statement of accused Ratikanta proved by this P.W.13 as Ext.5 is thus not of any significance. So mere seizure of those wearing apparels stained with human blood even if believed to have been made from the house cannot be taken as an incriminating circumstance against these accused persons stated with human blood an were hen we find that even if those are accepted for a moment in the absence of any other evidence to connect those articles pinpointedly with the commission of the crime, those are of no significance at all. With all these evidence, as above discussed, we are of the view that the prosecution has failed to establish the complicity of the accused persons through circumstantial evidence. The Trial Court, in our view, has fallen in grave error in holding these accused persons guilty of murder of the deceased Ajati @ Ajay. Therefore, in our considered view, the judgment of conviction and the order of sentence are liable to be set aside. 15. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 27th October, 2010 passed by the learned Sessions Judge, Cuttack, in S.T. Case No.271 of 2009 are hereby set aside. Since all the accused persons, namely, Bibhuti Mohapatra, Ratikanta Mohapatra and Anusaya Mohapatra are on bail, their bail bonds shall stand discharged. A.C. Behera, J. I Agree.