JUDGMENT : G. K. Misra, C.J. - The Appellant has been convicted u/s 302, Indian Penal Code, and sentenced to death. He has filed two criminal appeals, one from Jail and the other through an advocate. Reference has been made by the Sessions Judge u/s 374, Code of Criminal Procedure for confirmation of the sentence of death. 2. Prosecution case may be stated in short. Rama Chandra Mati (p.w. 1) and Ananta Mati (p.w. 9) are sons of Hrushi Subudhi (p.w. 10). They remain in one house. Only two months prior to the occurrence p.ws. 1 and 9 separated. There is no evidence that their house was partitioned. Sanjukta Dei (deceased), a girl aged about six years, was the daughter of p.w. 9. There appears to have been some enmity between p.ws. 1 and 9 on the one hand and Hadibandhu Mati (accused) on the other. On 19-5-1971 at about 6 a.m. the accused gave some cut-pieces of ripe papaya fruit to the deceased to eat. She took a little quantity and threw away the rest as it tested bitter. She told her uncle (p.w. 1) about the fact of the accused giving cut-pieces of ripe papaya which tasted bitter and her throwing them away after taking a little quantity thereof. Immediately after she left the house for witnessing Chandan Jatra in the village. On the way she felt giddy and fell down. Jaginath Dalai (p.w. 2) called p.w. 1 to the spot and the deceased narrated to p.ws. 1 and 2 that she was feeling uneasy after taking the papaya given by the accused. Soon after she vomited and purged. She was carried to the primary health centre at Bindhamima at a distance of about one mile from her house. The doctor (p.w. 3) attended on her and gave some injections at about 7.30 a.m. She expired at 7.45 a.m. 3. The prosecution relied upon the following pieces of evidence to establish that the deceased died of poison given by the accused in the cut-pieces of papaya: (i) A small bottle contain folderol was recovered from the Atu of Sikhar Sahu to which there was access from the Atu of the accused which was just adjacent, and that the chemical examiner found folidal in the liquid contents of the bottle seized under Ext. C-6. C-6. (ii) Ananta Behera (p.w. 4) and Kashinath Das (p.w. 8) saw the accused giving the papaya pieces to the deceased. (iii) The deceased made a dying declaration before p.ws. 1, 2 and 10 that the accused gave her cut-pieces of papaya a little of which she ate and the rest threw away as it tested bitter. (iv) There was a motive for the murder as the accused was not pulling on well with p.ws. 1 and 9. The accused had taken some loans from p.w. 1 which he was not repaying and on being asked to repay had threatened that he would exterminate the family of p.ws. 1 and 9. (v) The viscera of the deceased was found to contain Parathion (Folidol) by the chemical analyst. (vi) Three poultry birds packed into the thrown pieces of papaya and they died immediately. Their viscera's were found to contain Parathion (Folidol) on chemical examination. (vii) The cut-pieces of papaya were found to contain Parathion (Falidol) on chemical analysis. (viii) The stomach of the deceased contained semi-digested food materials as found on post-mortem examination. Accordingly the possibility of the deceased being poisoned by food materials other than papaya is ruled out. 4. The learned Sessions Judge disbelieved the evidence of p.ws. 4 and 8 in paragraph 11 of his judgment. On a careful serutiny of the evidence of these witnesses, we endorse his conclusion. The reasons given by him need not be repeated. 5. The recovery of the small bottle alleged to have contained Folidol from the Atu of Sikhar Sahu cannot be utilised as an incriminating circumstance. Even though there is easy access to the Atu of Sikhar Sahu from the Atu of the accused, there is no evidence that the accused kept that bottle in the Atu of Sikhar Sahu. The Atu of Sikhar Sahu is accessible to all and sundry and the accused cannot be said to be in possession of that bottle. Moreover, the bottle when sent for chemical examination was broken on the way an did not contain any liquid by the time it reached the chemical analysts. There is no report that the liquid in the bottle was examined and was found to contain Folidol. 6. The deceased made a dying declaration before p.ws. 1, 2 and 10. If true, the dying declaration is admissible u/s 32(1) of the Evidence Act. There is no report that the liquid in the bottle was examined and was found to contain Folidol. 6. The deceased made a dying declaration before p.ws. 1, 2 and 10. If true, the dying declaration is admissible u/s 32(1) of the Evidence Act. Law is well-settled that the dying declaration, if true and reliable, can constitute the sale basis of the conviction. In Thurukanni Pompiah and Anr. v. State of Mysore 1963 S.C.D. 445 their Lordships observed this: A truthful and reliable dying declaration may from the sale basis of conviction, even though it is not corroborated. But the Court must be satisfied that the declaration is truthful. The reliability of the declaration should be subjected to a close scrutiny, considering that it was made in the absence, of the accused who had no opportunity to test its veracity be cross-examination. If the Court finds that the declaration is not wholly reliable and a material and integral portion of the deceased's version of the entire occurrence is untrue, the Court may, in all the circumstances of the case, consider it unsafe to convict the accused on the basis of the declaration alone without further corroboration. We would accordingly proceed to examine if the dying declaration is this case is true and reliable. The dying declaration was to the effect that the accused gave cut-pieces of papaya to the deceased to eat. On eating a little, the deceased found the papaya tasting bitter. She threw away the same. Soon after she had a reeling sensation and she fell down. This dying declaration was made before p.ws. 1, 2 and 10. The evidence of p.ws. 1 and 10 has been attacked on the main ground that they are close relations of the deceased. In Mayadhar Rana v. State 38 C.L.T. 725 a similar argument was repelled by this Court by reference to several decisions of the Supreme Court. It was observed therein as follows: The common sense view of the matter, however, is that hardly relations, unless otherwise biased, would implicate persons not guilty of murder. Their effort would be to bring the real offender to book. The view of the Supreme Court or of this Court, expressed from time to time, on this aspect of the matter, is merely a common sense view and not a rule of law. Their effort would be to bring the real offender to book. The view of the Supreme Court or of this Court, expressed from time to time, on this aspect of the matter, is merely a common sense view and not a rule of law. In this case the deceased girl, aged a bout six years, took the papaya which tasted bitter. She felt a reeling sensation and in natural course of events she narrated the story to her uncle, p.w. 1, and grand-father p.w. 10. Her father, p.w. 9, works as a field man in the Agricultural Department in Athagarh town and had left the village at 5 a. m He came back from Athagarh at about 10 a.m. On hearing that his daughter died. There is absolutely no reason why p.ws. 1 and 10 would concoct a story of this nature and falsely implicate the accused that he gave the cut-pieces of papaya to the deceased to eat. The accused is a close neighbour of the deceased and is agnatically related to p.ws. 1 and 9. There is nothing unnatural on the part of the accused to offer papaya to the deceased and for her to take it. Here is evidence that there is no demarcating fence in between the Baris of the accused and p.ws. 1 and 9. There is, therefore, no reason why the evidence of p.ws. 1 and 10 should not be accepted regarding the dying declaration. P.W. 2 also spoke to the dying declaration made by the deceased on the way while she was going to see Chandan Jatra. At the time she fell down after having a reeling sensation. The evidence of this witness is criticised on the ground that in the Sessions Court he did not make a statement of the deceased having told him that the accused gave the papaya. In the committing Court, however, p.w. 2 had stated that the deceased had told that the accused gave the papaya. The committal statement may be extracted: That deceased told to her father that Badia Bhai gave her papaya by eating which she felt uneasy. x x x x x I was present when the deceased told to her father that Badia Bhai gave her papaya and I heard it from the month of the deceased. Thus, the statement of p.w. 2 before the committal Court clearly implicated the accused. x x x x x I was present when the deceased told to her father that Badia Bhai gave her papaya and I heard it from the month of the deceased. Thus, the statement of p.w. 2 before the committal Court clearly implicated the accused. There is no difference between his statement in the committal Court and the Sessions Court except as to the implication of the accused as giving the papaya. P.W. 2 was accordingly confronted in the Sessions Court with his statement made before the committal Court u/s 288, Code of Criminal Procedure. Be did not deny to have made such a statement before the committal Court, but merely stated that he did not remember whether he made such a statement. Law is well-settled that statement- before the committal Court is a substantive evidence and when there is conflict between the statements made in the committal Court and the Sessions Court, it is open to the Court to carefully serutinise the conflicting statements and decide which of the versions is acceptable. In this case though p.w. 2 was cross-examined both before the Committing Court and in the Sessions Court, no question was put to him that he made any contradictory statement before the police u/s 161 Code of Criminal Procedure. It thus appears that the earlier versions before the Police and before the Committing Court were consistent; that is to say, the deceased had named the accused as having giving her the cut-pieces of papaya. In the Sessions Court p.w. 2 adheres to the residual evidence that the deceased had a reeling sensation on taking the papaya but only excluded the name of the accused as having given the papaya. Taking the earlier consistent versions, and the broad circumstances of the case, and p.w. 2 not denying his earlier version before the Committing Court, we would prefer the version before the committal Court and hold that p.w. 2 had named the accused as having supplied the papaya. The law as to the value of the statement made before the Committing Court u/s 288. Code of Criminal Procedure was fully discussed by us in Bisipati Padhan v. State 1969 C.L.T. 362. No other criticism has been advanced against the evidence of p.ws. 1 and 2. The law as to the value of the statement made before the Committing Court u/s 288. Code of Criminal Procedure was fully discussed by us in Bisipati Padhan v. State 1969 C.L.T. 362. No other criticism has been advanced against the evidence of p.ws. 1 and 2. So far as p.w. 10 is concerned, the learned advocate for the Appellant referred us to his statement u/s 161, Code of Criminal Procedure before the police. It appears that before the police p.w. 10 had stated that by the time he returned after answering the call of nature, the deceased had already been removed to the hospital and he heard from his wife that the accused had given papaya to the deceased. Such a statement was not put to p.w. 10 in cross-examination in accordance with the provisions of Section 145 of the Evidence Act. If this statement had been put to p.w. 10 for contradiction definitely his evidence would have been discarded as the omission to say before the police that the deceased herself made a dying declaration to him would amount to a contradiction. The law is now well-settled that every omission does not amount to a contradiction. Omissions which by necessary implication lead to conflicting versions between the statements made before the police and the Court would amount to contradictions : See Tahsildar Singh and Another Vs. The State of Uttar Pradesh, . If the statement made by p.w. 10 before the Police as having heard about the deceased from his wife would have been confronted to p.w. 10, then by necessary implication there would have been contradiction. His present statement that he directly heard from the deceased would be contradictory to his statement u/s 161, Code of Criminal Procedure that he heard the story from his wife. Unfortunately, however, as this omission was not put to p.w. 10 in accordance with the provision of Section 145 of the Evidence Act we cannot take notice of this omission at the Appellate stage unless p.w. 10 is called for further cross-examination. If this aspect of the matter is excluded from consideration there is no other criticism against the evidence of p.w. 10. Even assuming that p.w. 10's statement could be excluded as being vulnerable there is still the evidence of p.ws. 1 and 2 in support of the dying declaration. Both of them are truthful witnesses. If this aspect of the matter is excluded from consideration there is no other criticism against the evidence of p.w. 10. Even assuming that p.w. 10's statement could be excluded as being vulnerable there is still the evidence of p.ws. 1 and 2 in support of the dying declaration. Both of them are truthful witnesses. P.W. 2 is an independent witness and has no axe to grind. We accept the dying declaration as truthful and reliable. 7. The viscera of the deceased girl was collected by Dr. Sunakar Behera (p.w. 6), the assistant surgeon in charge of Government hospital at Athagarh who conduct the postmortem examination over the dead-body on 19-5-1971. It was preserved in the laboratory till it was despatched to the chemical examiner on 31-7-1972 by Dr. Bamadev Mohanty (p.w. 15). Thus, the viscera was not sent for chemical examination for a period of more than 14 months and it remained in the hospital laboratory. P.W. 15 deposed that the viscera had been preserved in a glass jar which had been sealed with paraffin. On 31-7-1972 the glass-jar was packed with a piece of new cloth and was sealed with the personal seal of p.w. 15. The sample of the seal was sent to the Chemical examiner in a separate cover. At the time of joining he found the paraffin seal on the glass-jar in tact. In cross-examination p.w. 15 admitted that the glass-jar containing the viscera was kept in an almirah which was not under lock and key and that the members of the public and the staff of the hospital had access to the laboratory where the almirah was kept, and that anybody could remove the seal and get it resealed with paraffin. The answer of p.w. 15's cross-examination is wholly destructive of any contention that the viscera was kept in safe and proper custody and was not open to external interference. The accused is not to positively prove that in fact there was interference with the viscera by introduction of Folidol. It has been sufficiently established that the viscera was kept in such a grossly careless manner that it was open to anybody to introduce Foildol poison into it. The possibility of such introduction of poison by an outsider is enough to reject the viscera containing Folidol as an incriminating circumstances against the accused. It has been sufficiently established that the viscera was kept in such a grossly careless manner that it was open to anybody to introduce Foildol poison into it. The possibility of such introduction of poison by an outsider is enough to reject the viscera containing Folidol as an incriminating circumstances against the accused. Though on chemical examination the viscera was found to contain Folidol it cannot be said that Folidol was present in the viscera at the time of the death of the deceased and was not subsequently introduced into it. We would, accordingly, rule out this piece of evidence from our consideration. 8. The papaya pieces were collected from the Bari by p.w. 10 soon after the deceased was removed to the primary health centre. The I.O. (sic) these piece of papaya and prepared the seizure list, ext. 3 on 19-5-1971. The papaya pieces were despatched to the chemical examiner on 25-5-1971. Thus for six days the papaya was kept in Malkhana. The papaya pieces were not sealed and properly kept for six days. Though on chemical examination the papaya pieces have been found to have contained Folidol it cannot be said that Folidol existed in them at the time of their seizure. There was every chance of introduction of the poison within the six days they were kept in Malkhana without being properly sealed. This piece of evidence is, therefore, to be excluded from consideration as in the case of viscera of the deceased. 9. The I.O. seized three dead poultry birds from near the house of Sikhar Sahu which adjoins the house of the accused and prepared the seizure list, Ext. 8. There is no evidence that these three poultry birds pecked the papaya which were thrown by the deceased. Though the visceras of the three birds were found to have contained folidol on chemical examination, the same cannot be used as incriminating circumstances in the absence of any evidence that the three birds would accordingly be ruled out of consideration. 10. The evidence of the doctor p.w. 6, and the post-mortem report, Ext. 4. shows that the stomach of the deceased contained semi-digested food materials. It was contended by Mr. Biswal that other food materials taken by the deceased might be the sourse of poison. The constituents and the quantum of the semi-digested food materials have not been indicated in the post mortem report. 4. shows that the stomach of the deceased contained semi-digested food materials. It was contended by Mr. Biswal that other food materials taken by the deceased might be the sourse of poison. The constituents and the quantum of the semi-digested food materials have not been indicated in the post mortem report. P.W. 1 had attested that the deceased had taken no food other than the papaya. P.W. 1 being the uncle of the deceased was competent to know whether the deceased had taken any other food. At any rate, there is no evidence that the deceased had taken any food other than the papaya. The semi-digested food materials may refer to the papaya taken by the deceased in the morning however little it was. The negative argument that the deceased might have been poisoned through other food materials does not stand scrutiny. 11. As to motive, the learned Sessions Judge accepted the prosecution story. Even if the version of p.w. 1 is rejected, there is a suggestion by the accused that there is enmity between the two families. It is, however, well settled that motive does not constitute an important element unless the essential constitution of the offence are established. 12. To sum up, the only evidence established by the prosecution is the dying declaration. The other pieces of evidence are to be ruled out from consideration in determining the guilt of the accused. The question is whether the dying declaration is sufficient for sustaining the conviction of the accused. The dying declaration is that the accused gave the cut-pieces of papaya to the deceased which tested bitter and the deceased had a reeling sensation soon after. Added to this, is the further established fact that in course of one hour and forty-five minutes the deceased died after vomitting and purging. These facts, accepted in their entirely, do not make out a case that the deceased died of poison administered by the accused through papaya. The facts, doubtless, engender a very strong suspicion against the accused that he might have administered poison; but there is a long gap between suspicion and proof. The prosecution cannot be said to have established, beyond all reasonable doubt, that the deceased died of poison and that the same had been administered by the accused. 13. In the result, the conviction and sentence passed on the accused are set aside. The prosecution cannot be said to have established, beyond all reasonable doubt, that the deceased died of poison and that the same had been administered by the accused. 13. In the result, the conviction and sentence passed on the accused are set aside. The criminal appeals are allowed, and the Death Reference is discharged. The Appellant be set at liberty forthwith. 14. We cannot, however, past with this case without expressing our serious concern over the manner in which the investigation has been made. As has already been pointed out, the viscera of the deceased and the papaya pieces were found to have contained Folidol poison. On chemical examination, if these two pieces of evidence had been accepted the Appellant would have been convicted of murder and the sentence of death would have been confirmed. These two pieces of evidence were ruled out only on the ground that on the date of seizure they were not properly sealed and kept in safe custody. The responsibility of not keeping the papaya pieces in safe custody properly sealed from 19-5-1971 to 25-5-1971 rested on the I. O. Sri Bijoy Mohan Biswal who was officer in charge of Tigiria police station from May 1969 to November, 1971. He is unworthy of being in charge of investigation and should be immediately proceed against for gross negligence of duty. 15. Similarly the viscera of the deceased girl was collected by Dr. Sunakar Behera, p.w. 6 who conducted the postmortem examination on the deceased on 19-5-1971. He did not keep the viscera properly sealed in safe custody. Accordingly this important piece of evidence was ruled out from consideration. This doctor was not alive to his legal and social duties. He is unworthy of the position that has been conferred upon him. Proceedings should be started against him for the gross delinquency. 16. A copy of this judgment must be sent to the Chief Secretary for his information as to how for the gross negligence of the I.O. and the Doctor a serious case of murder of an innocent girl had to end in acquittal, though on chemical examination the vescera and the papaya were found to have contained Folidol poison. S. Acharya, J. 17. I agree.