JUDGMENT : R.K. Patra, J. - The Appellant stands convicted u/s 302 of the Indian Penal Code and sentenced to imprisonment for life by the learned Sessions Judge, Sundargarh in Sessions Trial No. 15 of 1993. 2. Briefly stated the prosecution case is that the Appellant is the nephew of Raghumani Nayak (hereinafter referred to as 'the deceased'). They were the residents of village-Masanilkani. There existed a land dispute between the family of the Appellant and the deceased due to which the former had threatened to take away the life of the deceased. On 22.9.1992 at about 5 p.m. the deceased went to the village tank for taking bath. As he did not return home by 6 p.m., his wife (P.W. 2) and her son Arun went in search of him, but could not locate him and came back home. After some time, P.W. 2 called some villagers and went with them holding a torch light to the village tank and on their way they saw the Appellant coming by another path being drenched. They saw the legs and hands of a human being. One Akshayaya Kumar Nayak went inside the water and found that it was the dead body of the deceased. They all came back leaving the dead body as such in the tank. P.W. 2, thereafter proceeded to Bhasma Police Station and lodged F.I.R. The Officer-in-charge of the Police Station arrived at the spot and found the dead body of the deceased in the middle of the tank. On the next day morning the dead body was brought out from the tank. 3. The defence of the Appellant was one of complete denial of his complicity in the offence complained of. 4. In order to bring home the charge against the Appellant the prosecution examined six witnesses out of whom P.W. 1 is an eyewitness, P.W. 2 is the widow of the deceased. P. Ws. 3 and 4 are witnesses to seizure of lungi (M.O. I), banian (M.O. II) and chadi (M.O. III). P.W. 5 is the Investigating Officer and P.W. 6 is the doctor who conducted autopsy over the dead body of the deceased. 5. From the evidence of the doctor (P.W. 6) it appears that the deceased had the following external injuries on his body: (i) Lacerated wound 1/3" x if/ x If/ on penis with bleeding posterior aspect of left elbow. 5. From the evidence of the doctor (P.W. 6) it appears that the deceased had the following external injuries on his body: (i) Lacerated wound 1/3" x if/ x If/ on penis with bleeding posterior aspect of left elbow. (ii) Lacerated wound 1/2" x 1/3" X If/ on the lower posterior aspect of left elbow. (iii) Abrasion 1/2" x 1/2" on anterior right knee. On dissection he found the following internal injuries: Trachea was painted with mud and contained fine for the Both the lungs were distended edinatus, pitting on pressure and on dissection found plenty of for the. Stomach contained large quantity of muddy water. According to the doctor, all the injuries were ante mortem in nature and the death was on account of prolonged asphyxia due to drowning in muddy water. In his cross-examination the doctor stated that except prolonged asphyxia due to drowning, there was no other possibility of death. The external injuries found were not the cause of the death of the deceased. He opined that when a living person is put to water only such type of death is possible. From the aforesaid evidence of the doctor, it is evident that the deceased died on account of asphyxia caused due to drowning. 6. The crucial question that arises for consideration is whether the Appellant committed the murder of the deceased by drowning him in the muddy water? P.W. I, as indicated above, was examined by the prosecution as an eye witness to the occurrence. He stated that on the date of occurrence while he was returning from village-Brgapitha to his own village-Masnikani, he stood on the embankment of the village tank and saw the Appellant putting the deceased inside the mud of the tank. By that time the deceased had expired. He further stated that when he asked the Appellant about it, he threatened him not to tell the fact to anybody or else he would kill him. Out of fear, he returned and became sick and six days after recovery from illness he told about the incident to the police. Admittedly, P.W. 1 disclosed about the incident six days after. His plea that after seeing the occurrence he came back to his house, fell sick and six days thereafter when he became fit he disclosed the matter to the police has to be taken with a pinch of salt. Admittedly, P.W. 1 disclosed about the incident six days after. His plea that after seeing the occurrence he came back to his house, fell sick and six days thereafter when he became fit he disclosed the matter to the police has to be taken with a pinch of salt. He is an elderly man aged about 60 years. There is no reason as to why he would be scared of the Appellant when the police had already reached the village within four hours of the occurrence. Besides this he has not indicated in his evidence as to the nature of illness which he suffered for six days. He could not even name the nurse under whom he was being treated. He did not tell anyone even to his wife and children about the incident before he disclosed it for the first time at the police station. The fact that the eye witness disclosed the incident to the police at a belated stage shows that he was picked up latter during the investigation. Added to the aforesaid serious infirmities, it has been brought out in the evidence of the Investigating Officer (P.W. 5) that he ( P.W. I) was not cited as a witness in the charge-sheet although 25 persons were cited as charge-sheet witnesses. P.W. 1 being an ocular witness is an important witness. There is no explanation as to how such a vital witness could be omitted from being cited as a witness in the charge-sheet. For the reasons mentioned above, P.W. 1 cannot be held to be a reliable witness to inspire confidence for acceptance of his evidence. 7. There is no other evidence to connect the Appellant with the crime except the evidence of P.W. 2, who stated that when she and her villagers had gone in search of her husband they found the Appellant was coming being drenched. Mere coming back home in such a manner or fashion reasons mentioned above, P.W. 1 cannot be held to be a reliable witness to inspire confidence for acceptance of his evidence. 7. There is no other evidence to connect the Appellant with the crime except the evidence of P.W. 2, who stated that when she and her villagers had gone in search of her husband they found the Appellant was coming being drenched. 7. There is no other evidence to connect the Appellant with the crime except the evidence of P.W. 2, who stated that when she and her villagers had gone in search of her husband they found the Appellant was coming being drenched. Mere coming back home in such a manner or fashion cannot fasten the Appellant with the charge of commission of murder. Similarly, the seizure of Appellant's lungi, banian and chadi does not in any way further the prosecution case inasmuch as nothing incriminating was found thereon and no one also had stated that the Appellant was wearing them at the time when P.W. 2 saw him coming in the evening. 8. On careful consideration of the evidence on record, we have no hesitation to say that the prosecution has failed to prove its case against the Appellant. 9. In the result, the conviction and sentence imposed on the Appellant u/s 302, I.P.C. are hereby set aside. He is acquitted of the charge. He may be set at liberty forthwith if his detention is not required in any other case. 10.The appeal is accordingly allowed. P.K. Patra, J. 11. I agree. Final Result : Allowed