Circumstantial evidence alone is insufficient to prove guilt beyond a reasonable doubt if it is not conclusive, consistent only with the hypothesis of guilt, and does not exclude every possible hypothesis except guilt.

J. M. MAHAPATRA, J.

( 1 ) THE appeal is directed against the judgment and order of the learned Sessions Judge, Sundargarh convicting the appellant under S. 302, IPC and sentencing him to imprisonment for life.

( 2 ) THE deceased is the son of the appellant through his first wife, on whose death the appellant married a second wife through whom two sons and one daughter were born and they are living in the same compound. It is alleged that there was some dissension between the appellant and the deceased, as the appellant did not pay the Pana money to the father of the wife of the deceased, promised to be given at the time of the marriage, which system was customary in the community to which the parties belonged. The occurrence took place on the night of 2-4-87 inside the residential compound of the parties. it is alleged that the appellant assaulted the deceased by means of a Falsia causing severe injury on his neck resulting in his death. Information was lodged by P. W. 1, the younger brother of the deceased as also the son of the appellant at Koida P. S. in Sundargarh district. P. W. 6, the Officer-in-charge, Koida P. S. recorded the FIR Ext. 7 registered a case against the appellant and took up investigation. In course of investigation he held inquest over the dead body of the deceased, sent the dead body for post-mortem examination, made seizure of the weapon of offence, M. O. I. and wearing apparel of the appellant and the deceased, took steps for dispatch of the incriminating articles for scientific test and on completion of investigation submitted charge-sheet against the appellant. The appellant being committed to the Court of session stood his trial for the offence of murder of the deceased and was eventually found guilty of the offence of murder and convicted and sentenced thereunder.

( 3 ) THE plea of the appellant at the trial was one of total denial of his complicity in the crime.

( 4 ) IN support of its case prosecution has examined as many as six witnesses, of whom P. W. 1 is the Assistant Surgeon, Bonei subdivisional Hospital who had conducted post mortem examination on the dead body of the deceased; P. Ws. 2, 3 and 5 have been examined as eye-witnesses to the incident; P. W. 4 is a witness to the seizure and P. W. 6 is the I. O. Prosecution case rests on the ocular testimony of the three eye-witnesses referred to above, seizure of the Falsia, M. O. I. at the instance of the appellant and the matching of the blood group in the Dhoti, M. O. II seized from the appellant and the wearing apparel of the deceased, M. Os. III to V. The learned trial Judge though did not rely on the ocular testimony of the three witnesses, P. Ws. 2, 3 and 5 who had turned hostile at the trial and had disowned any knowledge about the incident and as to how the deceased died or who assaulted him, has based the conviction of the appellant on the circumstantial evidence, namely, seizure of Falsia, M. O. 1 at the instance of the appellant and the matching of the blood group in the wearing apparel of the appellant and the deceased as revealed from the report of the Serologist and the Chemical examiner.

( 5 ) THERE is no controversy that the death of the deceased was homicidal and as such we need not go into the medical evidence. Suffice it to say that the Medical Officer, P. W. 1 found two incised injuries on the left side of the neck which, according to him, were fatal in nature and which caused his death. As the learned trial Judge has not relied on the ocular testimony of P. Ws. 2, 3 and 5, and rightly in our opinion, for their having turned hostile and not disclosing anything at the trial about the authorship of the crime, we need not dilate on the evidence of these three witnesses. It is, however, elicited from P. Ws. 2 and 4 in cross-examination that the appellant and the deceased were pulling on well at the material time we are now left to consider whether the learned trial Judge was justified in basing the conviction of the appell