JUDGMENT : R.K. Dash, J. - The accused, Appellant herein, has been held guilty and convicted u/s 302, I.P.C. for committing murder of Mediri singh Patra (hereinafter referred to as 'deceased') by means of an axe and consequently sentenced to undergo imprisonment for life. Against the said order of conviction and sentence, he has preferred the present appeal. 2. Shortly stated, the prosecution case is that on 30.11.1990 while the deceased and Sahadeva Patra, P.W.,3 were returning after morning ablutions, the accused, who was lying in wait near a thorny bush suddenly emerged with an axe and inflicted a blow on the neck of the deceased. P.W. 3 when entreated the accused, he chased him to assault. So, out of fear P.w. 3 rushed to the village and informed Ramsing Patra, P.W. 1 - brother of the deceased, hearing which he along with some villagers came to the spot and finding the deceased struggling for life with bleeding injuries, he arranged a cot to remove his to hospital, but in the meanwhile he succumbed to the injuries. On the very day of incident, P.W. 1 reported the matter to O.I.C. of Tumudibandh Police Station (P.W. 10) who reduced the same into writing, treated the same as FIR and proceeded with the investigation and on close thereof placed the charge-sheet against the Appellant to stand his trial u/s 302, I.P.C. 3. The Appellant while denying his involvement in the alleged specifically pleaded that deceased had extra marital relation with the wife of P.W. 3 for which the latter assaulted him and caused his death. 4. The prosecution in its endeavour to bring home the charge examined ten witnesses, of them, P.W. 3 was eye witness to the occurrence and P.W. 4 was a witness to extra?judicial confession made by the accused. The learned trial Court mainly relying upon the evidence of these two witnesses accepted the prosecution case and held that it was the accused who inflicted the fatal blows with a lethal weapon to the deceased and caused his death. 5. Shri Routray, learned Counsel appearing fro the accused strenuously contended that the entire evidence of P.W. 3 read as a whole does not inspire confidence and the same having not been corroborated by any other acceptable evidence, it would be hazardous to rely upon the same to record a finding of guilt against the accused. 5. Shri Routray, learned Counsel appearing fro the accused strenuously contended that the entire evidence of P.W. 3 read as a whole does not inspire confidence and the same having not been corroborated by any other acceptable evidence, it would be hazardous to rely upon the same to record a finding of guilt against the accused. He has further submitted that the evidence of extra?judicial confession cannot be considered with favour to base conviction because P.W. 4 before whom such confessional statement was made did not disclose the same to anyone till he was examined in the Court. 6. Controverting the aforesaid submission Shri Behera, learned Addl. Government Advocate on the other hand has contended that the evidence of P.W. 3 should be appreciated keeping in mind the peculiar facts and circumstances of the case and having done this if the court finds that he has given a true account of the incident and nothing is borne out to impeach his credibility, a conviction can lie solely basing on his testimony, a conviction can lie solely basing on his testimony. Coming to the evidence of P.W. 4, Shri Behera urges that the same cannot be jettisoned merely because for the first time he disclosed in the court about the accused having confessed his guilt before him. 7. It has not been disputed before us, as held by the trial court, that the deceased died a homicidal death as a result of ante-mortem injuries to the vital organ and in that view of the matter the question that survives for out consideration is as to whether the accused was responsible for the death of the deceased. 8. Admittedly, the informant-P.W.1 was not any eye witness to the occurrence. On being informed of the incident by P.W. 3, he rushed to the scene of occurrence and found the deceased lying injured. He made arrangements to remove him to the hospital, but in the meanwhile he breathed his last. So, he came to the police station and lodged FIR, Ext. 3 giving a detailed narration of the incident which he could know from P.W. 3. 9. Now we will scrutinise the evidence of P.W. 3, the sole eye witness to the occurrence. He made arrangements to remove him to the hospital, but in the meanwhile he breathed his last. So, he came to the police station and lodged FIR, Ext. 3 giving a detailed narration of the incident which he could know from P.W. 3. 9. Now we will scrutinise the evidence of P.W. 3, the sole eye witness to the occurrence. He stated that on the date of incident in the morning hours both he and the deceased while returning from a channel after finishing morning ablutions, the accused suddenly emerged from a bush being armed with an axe and inflicted blow on the neck of the deceased. He entreated the accused from further assault, but it was to of no effect. Rather he was threatened to be killed. So, out of fear he rushed to the village and informed the incident to deceased's brother P.W. 1. Shri Routray has urged that evidence of P.W. 3 should be taken with a pinch of salt as because, on his way to the deceased's house though he met one Badan Behera dolai, he did not disclose the incident to him and seek his held. We are unable to persuade ourselves to accept such contenting, the reason being that seeing the ghastly crime, he (P.W. 3) was in be wilderment and straight-way came to village to inform the near and dear ones of the deceased so that arrangement could be made for his early treatment. On a through scrutiny of his evidence we find that his presence at the scene of occurrence was quite probable and he had given a true account of the incident that happened in his presence. He had no axe to grind against the accused and merely because he did not disclose the incident to the person whom he met on the way, his evidence cannot be thrown over board on that score. 10. Coming to the evidence of P.W. 4, he stated that the accused just after the occurrence while returning home, met him and on his own volition disclosed that he had killed the deceased and was going to police station. He was a co-villager having cordial relation with the accused and therefore, it was quite natural that the accused prompted by conscience confessed before him of having killed the deceased. 11. He was a co-villager having cordial relation with the accused and therefore, it was quite natural that the accused prompted by conscience confessed before him of having killed the deceased. 11. The next witness is P.W. 10, the Investigating Officer, whose statement has same relevance to appreciate the evidence of P. Ws. 3 and 4. His evidence disclosed that an the next day morning of the occurrence the accused appeared at the police station with a blood stained axe, which he seized under seizure list-Ext. 8. The napkin and banian of the accused stained with blood were also seized under seizure list-Ext. 9. The aforesaid materials along with blood stained earth and sample earth and blood stained clothes of the deceased were sent far chemical examination and the Chemical Analyser found blood an the axe as well as napkin and banian belonging to the accused. Shri Routray, learned Counsel far the accused has stronausly urged that the report of the Chemical Analyser with regard to the find of blood on the aforesaid materials cannot be used as a piece of circumstantial evidence against the accused since no question was put to him while recording his statement u/s 313, Code of Criminal Procedure It is trite jaw that while examining the accused u/s 313 ?, Code of Criminal Procedure his attention must be specifically invited to the evidence or circumstances appearing against him in the case with a view to giving him an opportunity to offer an explanation if he chooses to dosa. The section imposes a duty on the court to ensure that the incriminating circumstances are put to the accused and his answer elicited. The view expressed by the Supreme Court which is the law of the land is that unless the circumstances appearing against the accused are put to him while examining him u/s 313, Code of Criminal Procedure, the same cannot be used against him. In Shamu Balu Chaugule v. State of Maharashtra : AIR 1976 SC 577, the court held as follows: The fact that the Appellant was said to be absconding, not having been put to him u/s 342, Code of Criminal Procedure, could not be used against him. In another decision in the case of National Textile Corporation and Another Vs. In Shamu Balu Chaugule v. State of Maharashtra : AIR 1976 SC 577, the court held as follows: The fact that the Appellant was said to be absconding, not having been put to him u/s 342, Code of Criminal Procedure, could not be used against him. In another decision in the case of National Textile Corporation and Another Vs. State of Maharashtra and Others the Court observed thus: In the first place, he stated that on the personal search of the Appellant, a chadi was found which was blood stained and according to the report of the serologist, it contained human blood. Unfortunately, however, as this circumstance was not put to the accused in his statement u/s 342, the prosecution cannot be permitted to rely on this statement in order to convict the Appellant. To the same effect is another decision in Bhalinder Singh v. State of Punjab : (1994) I SCC 726, where the court held thus: The circumstances not put to the accused white recording his statement u/s 313, Code of Criminal Procedure cannot be used against him. 12. The aforesaid view is however subject to the condition that the accused must show that he has been seriously prejudiced in not bringing to his notice the evidence or circumstance appearing against him while recording his statement u/s 313, Code of Criminal Procedure In this context, it will be apposite to refer to the decision of the Supreme Court in the case of Suresh Chandra Bahri Vs. State of Bihar with Gurbachan Singh where it has been held: It has always been regarded unfair to rely upon any incriminating circumstance without affording the accused an opportunity of explaining the said incriminating circumstance. The provisions in Section 313, therefore, make it obligatory on the court to question the accused on the evidence and circumstance appearing against him so as to apprise him the exact case which he is required to meet. But it would not be enough for the accused to show that he has not been questioned to examined on a particular circumstance but he must also show that such examination has actually and materially prejudiced him and has resulted in failure of justice (See also Bijjoy Chand Potra Vs. The State, : Ram Shankar Singh and Others Vs. State of West Bengal, 13. The State, : Ram Shankar Singh and Others Vs. State of West Bengal, 13. In view of the law laid down by the Supreme Court, in the present case, one of the circumstances as to the find of human blood in his napkin and banian as well as on the axe, as reported by the Chemical Analyser, having not been put to the accused while examining him u/s 313, Code of Criminal Procedure, the same cannot be used as an incirminating evidence against him, the reason being that had it been brought to his notice; he would have got an opportunity to explain how blood could be found on the aforesaid materials. That having not been done, we have no other option but to exclude the chemical examination report from consideration. Yet the evidence of the Investigating Officer, P.W. 10. which to some extent supports the prosecution case, cannot be lost sight of.,As stated by him, the accused appeared at the Police Station with a blood-stained axe which he seized in presence of the witnesses. This is a clinching circumstance which corroborates the hauler account of P.W. 4 that the accused made a confessional statement that he had killed the deceased and was going to the police station. 14. Regard being had to the materials on record, as discussed above, we are of the opinion that it was the accused who assaulted the deceased with an axe and committed his murder. 15. In the result, the appeal fails and the same is dismissed. P.K. Mohanty, J. 16. I agree. Final Result : Dismissed