JUDGMENT : L. Mohapatra, J. - Reference u/s 366 of the Code of Criminal Procedure has been made by the Learned Adhoc Additional Sessions Judge (Fast Track Court), Malkangiri for confirmation of sentence of death imposed by him on accused Tangamalai Ramaswamy in Criminal Trial No. 51 of Criminal Appeal has been filed by both the accused persons against the order of conviction passed against the Appellant No. 1 u/s 302 of the I.P.C. and sentencing him to death and further convicting him for commission of offence u/s 201 I.P.C. and sentencing him to undergo R.I. for seven years and to pay fine of Rs. 5000. Appellant No. 2 has been convicted for commission of offence under Sections 201/34 of the Penal Code and sentenced him to undergo R.I. for seven years and to pay fine of Rs. 5000. 2. Case of the prosecution os revealed from the F.I.R. is that O. Jairai (P.W.13) is the brother of the deceased and resident of Tamil Nadu. He lodged an information before the O.I.C. Kalimela Police Station on 4.4.2006 alleging therein that her sister Suryakanti (deceased) had married to one T. Ramaswamy (Appellant No. 1) about 16 years back. After marriage they were staying in Telugusahi at Kalimela town in their own house. Appellant No. 1 was running a business in preparation and sale of mixture. On 30.3.2006 Appellant No. 1 came to Uthapanyakanoor and reported him that the deceased was missing. The informant entertained a doubt and came to Kalimela and ascertained from the labourers working under the Appellant No. 1 specifically Appellant No. 2 that on 23.3.2006 the Appellant No. 1 with the help of a Tantrik, by name Daibam had killed the deceased by pressing her face with a pillow at about 12 O' clock in the night and thereafter with the help of labourers working in his factory cut body of the deceased into pieces and burnt them to ashes in the oven meant for preparing mixture and thereafter threw away the ash and bones under a hill. On these allegations, investigation was taken up and on completion of investigation charge-sheet was submitted for commission of offences under Sections 302/201/34 of the Indian Penal Code against nine accused persons. Six accused persons were juvenile and accordingly they are facing trial in the Court of C.J.M.-cum-Principal Magistrate, Juvenile Justice Board, Malkangiri. On these allegations, investigation was taken up and on completion of investigation charge-sheet was submitted for commission of offences under Sections 302/201/34 of the Indian Penal Code against nine accused persons. Six accused persons were juvenile and accordingly they are facing trial in the Court of C.J.M.-cum-Principal Magistrate, Juvenile Justice Board, Malkangiri. Out of rest three accused persons, the two Appellants faced trial but accused Daibam who is also alleged to have helped the Appellant No. 1 in killing the deceased absconding and has not faced trial. 3. Plea of defence is denial of the entire prosecution case. 4. In order to bring home the charges, the prosecution examined as many as 14 witnesses, and one witness was examined on behalf of the defence. P.W.1, a grocery shop owner, is a witness to seizure of pillow, coconut, flowers, etc. P.W.2 is a contractor by profession and is also a witness to seizure of photographs (M.Os. I to VI). P.W.3 is also a contractor and is witness to seizure. P.W.4 is an interpreter. P.W.7 is a witness to recovery u/s 27 of the Evidence Act. P.W.8 is a lady constable and immediate neighbour of the deceased who said about the strained relationship between the deceased and the Appellant No. 1. P.W. 9 is a witness to seizure of incriminating items given on recovery by the Appellant No. 1 and P.W.10 is the person who had supplied a black colour cat to the Appellant No. 1. P.W.11 is the witness who had taken photographs and P.W.12 is the doctor who examined the weapon of offence namely Kati on police requisition. P.W.13 is the informant and brother of the deceased, who speaks about extra-judicial confession and P.W. 14 is the I.O. who conducted investigation. Admittedly, this is a case where there is no eye-witness to the occurrence. Learned Adhoc Additional Sessions Judge found the Appellant No. 1 guilty of the charges solely on the circumstantial evidence which are as follows: (1) Extra-judicial confession of the Appellant No. 1 before P.W.13; (2) The Appellant No. 1 and the deceased were last seen. (3) Appellant No. 1 gave recovery of weapon of offence u/s 27 of the evidence Act. (4) Strained relationship between the Appellant No. 1 and the deceased. (3) Appellant No. 1 gave recovery of weapon of offence u/s 27 of the evidence Act. (4) Strained relationship between the Appellant No. 1 and the deceased. So far as Appellant No. 2 is concerned, the Trial Court found him guilty for commission of offence under Sections 201/34 of the I.P.C. for causing disappearance of the dead body. 5. Learned Counsel for the State submitted that the circumstances proved by the prosecution point at the guilt of the Appellants. According to the Learned Counsel, Appellant No. 1 made an Extra-judicial confession implicating himself to be the author of the crime and such extra-judicial confession is corroborated by the fact that he had a strained relationship with his wife and came out with a false story that his wife was missing. Apart from the above, Appellant No. 1 gave recovery of the weapon of offence u/s 27 of the Evidence Act. According to the Learned Counsel for the State, the circumstances as stated above complete a chain and if such circumstances are taken into consideration, irresistible conclusion will be that the Appellant No. 1 committed murder of his wife and has therefore rightly been sentenced to death considering the manner in which the offence was committed and the manner in which dead body of the deceased was burnt in to ashes. 6. Learned Counsel for the Appellants submitted that so far as Appellant No. 2 is concerned, there is absolutely no evidence on record to show that he participated in burning the dead body of the deceased along with the Appellant No. 1. In absence of any evidence whatsoever to show that the Appellant No. 2 had participated in disappearance of dead body of the deceased, he could not have been convicted for commission of the offences under Sections 201/34 of the I.P.C. So far as Appellant No. 1 is concerned, Learned Counsel contended that the so-called extra-judicial confession made by the Appellant No. 1 before P.W.13 was in the state of Tamil Nadu and there is absolutely no corroborative evidence. It is contended by the Learned Counsel that the Appellant and the deceased were last seen much prior to the incident and therefore it cannot be said to be a circumstance against the Appellant No. 1. It is contended by the Learned Counsel that the Appellant and the deceased were last seen much prior to the incident and therefore it cannot be said to be a circumstance against the Appellant No. 1. Learned Counsel further contended that the recovery alleged to have been made at the instance of the accused u/s 27 of the Evidence Act is of no use to the prosecution since the chemical examination report shows that the Kati though contained human blood, its origin was not known. In absence of any evidence to show that the blood found on the Kati was that of the deceased, such circumstance cannot be utilized against the Appellants. On the above submission, it was contended by the Learned Counsel for the Appellants that the Judgment and the order of conviction and sentence u/s 302/201/34 of the I.P.C. is liable to be set aside. 7. In order to appreciate rival contention of the parties, it is necessary to analyze the evidence adduced before the Trial Court. P.W.1 is a grocery shop owner in the village where the Appellants reside. He has stated in his evidence that some days after the occurrence he was called to the house of Appellant No. 1. He went to his house where the Appellant No. 1 was present along with the police. Number of other persons were also present there. The O.I.C. asked him to sign some papers and accordingly he signed those papers. He has further stated that he had seen the deceased near his telephone booth for the last time. This witness was declared hostile and was cross-examined by the prosecution. In cross-examination he has stated that he had only signed on the seizure list prepared by the I.O. but he had not seen seizure of articles under Ext. 1. P.W.2 is a contractor who also turned hostile having said that he did not know anything about the case. In cross- examination by prosecution he has stated that for the last time he held seen the deceased in the company of the Appellant No. 1 and thereafter he did not see her. Nothing more is available in his evidence in support of the prosecution. P.W.3 is another contractor whose evidence is exactly similar to P.W.2. In cross- examination by prosecution he has stated that for the last time he held seen the deceased in the company of the Appellant No. 1 and thereafter he did not see her. Nothing more is available in his evidence in support of the prosecution. P.W.3 is another contractor whose evidence is exactly similar to P.W.2. P.W.4 is a translator who had translated the information given by the informant in Telugu language to Oriya and drafted the F.I.R. as per the narration of P.W.13. P.W.5 has stated that she has not seen the deceased for last six months. This witness was also declared hostile and none of her statement made in cross-examination is of any help to the prosecution. P.W.6 has also similarly stated not to have seen the deceased for last six months and she was declared hostile. Nothing is there in cross-examination by the prosecution to support the prosecution case. P.W.7 is witness for the prosecution. In his deposition this witness has stated that the Appellant No. 1 had gone to his village with family members six months back and since then he had not seen the deceased. The father of the Appellant No. 1 was staying in the house of Appellant No. 1 along with the workers in the mixture factory. Appellant No. 1 had left for Tamil Nadu and was enquiring over telephone as to whether police had come to his house or not. The absconding accused Daibam who practices witchcraft was staying in the house of the Appellant No. 1 for a period of 15 days. During absence of Appellant No. 1, his father died and the villagers buried the dead body. Though Appellant No. 1 was informed over phone about death of his father, he said that his wife is missing and he was searching for her. A day thereafter the informant (P.W.13) who happens to be brother-in-law of Appellant No. 1 came to Kalimela and said that the Appellant No. 1 has killed his wife. Thereafter police came to the house (If Appellant No. 1 and enquired from the workers about the incident and the workers narrated the incident in detail The police thereafter accompanied the workers to Bhairabi pahada where they showed the ashes which were removed from the mixture oven. Statements of both the Appellants were recorded in presence of witnesses. Thereafter police came to the house (If Appellant No. 1 and enquired from the workers about the incident and the workers narrated the incident in detail The police thereafter accompanied the workers to Bhairabi pahada where they showed the ashes which were removed from the mixture oven. Statements of both the Appellants were recorded in presence of witnesses. Police also seized household articles from Appellant No. 1 and prepared a seizure list in which this witness signed. In cross-examination, this witness has admitted that when the workers of the factory were interrogated by the police he was not present there and accordingly he cannot say what the workers said before the police. P.W.8 is a lady constable and immediate neighbour of the Appellant No. 1. She has stated that the absconding accused Daibam had come to the house of the Appellant No. 1 and remained there. Said absconding accused used to perform puja in the house of the Appellant No. 1. Prior to the incident the deceased used to narrate her plight before this witness that the Appellant was assaulting on flimsy matter and while assaulting her, he used to raise the volume of tape-recorder with a view that the cries of the deceased would not be audible to others. One day suddenly the Appellant No. 1 and the deceased as well as the absconding accused Daibam disappeared from the house and latter she came to. know that the Appellant No. 1 had committed murder of his wife. Though nothing was brought out in cross-examination this witness she voluntarily made a statement before the Court. She has stated that on the date of occurrence the deceased was assaulted physically by Appellant No. 1 in the morning and it crossed all the limits. She had seen the deceased inside the compound wall and the Appellant was running after her with a stick and the deceased was crying loudly. She went to Kalimela police station for her duty and brought this matter to the notice of the O.I.C. but she was told by the O.I.C. that these are marital problems and unless an F.I.R. is lodged, he cannot do anything. From next date onwards she did not see the deceased or her husband or the absconding accused. On the third day she noticed a blood stained gunny bag hanging on the boundary wall. From next date onwards she did not see the deceased or her husband or the absconding accused. On the third day she noticed a blood stained gunny bag hanging on the boundary wall. She went to the house of Appellant No. 1 and found the father of the Appellant No. 1 in injured condition. Boys working with the Appellant No. 1 on being questioned said that the Appellant No. 1 along with absconding accused had killed the deceased. P.W.9, a co-villager, is a witness to recovery of weapon of offence u/s 27 of the Evidence Act. In his deposition this witness has stated that the Appellant No. 1 led the police & the witnesses to his house and from a steel almirah, brought out a coconut piece, flowers and other puja items kept sealed inside the almirah. Appellant No. 2 while in police custody admitted to have committed the offence. In cross-examination, this witness has admitted that about 100 people had assembled before the house of the Appellant when he reached there and some part of statement of the Appellant had already been recorded by the police before his arrival. He has also admitted that in the beginning Appellant No. 1 was not giving any statement but on interrogation and persuasion, he admitted his guilt. P.W.10 is the person who had supplied a black colour cat to the Appellant No. 1 for rupees twenty. Evidence of P.W.10 is not necessary to be referred to and P.W.12 is the doctor. On police requisition he examined a Kati produced before him which was seized from the house of the Appellant No. 1. P.W.13 is the informant and brother-in-law of the Appellant No. l. He has stated that in the month of February his sister had come to his house and narrated about her plight saying that the Appellant was assaulting her brutally on petty matters. After he returned to his village, a meeting was convened and in the said meeting the Appellant and the absconding accused Daibam were asked to remain present. The accused persons came to the meeting, confessed their guilt and admitted to have killed the deceased. They further admitted that after killing her they cut the dead body into pieces, burnt the pieces in a oven and then collected the ash and threw it near Bhairabi Pahada of Kalimela town. The accused persons came to the meeting, confessed their guilt and admitted to have killed the deceased. They further admitted that after killing her they cut the dead body into pieces, burnt the pieces in a oven and then collected the ash and threw it near Bhairabi Pahada of Kalimela town. Nothing has been brought out in cross-examination to disbelieve his statement. P.W. 14 is the I.O. who conducted investigation. D.W.1 is a witness examined on behalf of the Appellants and has stated that at no point of time Appellant No. 1 confessed before him or P.W.13 that he had killed his wife. 8. On analysis of the entire prosecution evidence, it appears that the Appellant No. 1 was last seen with the deceased sometime before the incident and thereafter whereabouts of the deceased was not known to anyone till the matter was detected. It further appears that both the Appellants made Extra-judicial confession before the P.W.13 to have killed the deceased, cut her into pieces and burnt the pieces in an oven. Another circumstance available against the Appellant No. 1 is that the KATI which is alleged to have been used for commission of the offence contained human blood and there is no explanation from the side of the Appellant No. 1, in his statement u/s 313 Cr.P.C, as to how the said KATI was stained with human blood. There is also evidence to show that the Appellant No. 1 was not pulling on well with his wife and on the day they were last seen, Appellant No. 1 had assaulted the deceased. These circumstances taken, together point at the guilt of the Appellant No. 1 and therefore the Court is called upon to decide as to whether the circumstances existing against the Appellants are strong enough to come to conclusion that the Appellant No. 1 had committed murder of his wife with the help of the absconding co-accused and the Appellant No. 2. As stated earlier, the circumstances proved by the prosecution against the Appellant No. 1 are: (1) Appellant No. 1 was not pulling on well with the deceased; (2) The absconding accused Daibam was a Tantrik and he had been brought by the Appellant No. 1 to have some kind of the puja and sacrifice of an animal had also been made. The said absconding accused stayed in the house of the Appellant No. 1 for a period of 15 days; (3) The Appellant No. 1 and the deceased were last seen before the occurrence and whereabouts of the deceased were not known till the murder was detected; (4) Appellant No. 1 made extra-judicial confession before P.W.13 who is his brother-in-law admitting to have killed the deceased; and (5) The KATI which was used for commission of the offence contained human blood and there is no explanation by Appellant No. 1 u/s 313 Cr.P.C. as to how and under what circumstances human blood was found on the KATI. If all the circumstances are taken together it will be found that the extra- judicial confession before P.W. 13 is well corroborated by other circumstances and the only conclusion that can be arrived at is that the Appellant No. 1 had killed his wife. 9. So far as the offence u/s 201 of the Penal Code is concerned, both the Appellants have been convicted for commission of the said offence. Admittedly, the Appellant No. 2 was a worker in the factory of the Appellant No. 1. The Extra-judicial confession made before P.W.13 is to the effect that the Appellant No. 1 killed his wife and after killing, her dead body was cut into pieces and were burnt in an oven, where after the ashes were collected and thrown near Bhairabi Pahada of Kalimela town. The second part of confession with regard to cutting the dead body of the deceased into pieces, burning the same in an oven and throwing the ashes near Bhairabi Pahada is not corroborated by any other evidence at all. Learned Counsel for the State failed to draw the attention of the Court to any evidence which could corroborate this part of the confession made by the Appellant No. 1. We are, therefore, of the view that the conviction of both the Appellants u/s 201/ 34 of the I.P.C. could not have been directed. Learned Counsel for the State failed to draw the attention of the Court to any evidence which could corroborate this part of the confession made by the Appellant No. 1. We are, therefore, of the view that the conviction of both the Appellants u/s 201/ 34 of the I.P.C. could not have been directed. We are further of the view that the Appellant No. 2 who has only been convicted for commission of the offence u/s 201/34 of the I.P.C. is liable to be acquitted and the conviction of Appellant No. 1 for commission of offence u/s 302/34 of I.P.C. is to be maintained in view of the discussion made above, but his conviction for commission of offence u/s 201/34 I.P.C. is liable to be set aside. 10. We, accordingly, allow the appeal so far as Appellant No. 2, (S. Rajib Gandhi) is concerned and acquit him of the charges and maintain conviction of the Appellant No. 1 (Tangamalai Ramaswamy) so far as offence u/s 302/34 of I.P.C. is concerned, but set aside his conviction u/s 201/34 of I.P.C. As it appears from the record, Appellant No. 2 (S. Rajib Gandhi) is in custody. If that be so, he may be set at liberty forthwith unless his detention is required in any other case. 11. So far as sentence is concerned, the Trial Court has imposed capital punishment keeping in mind the manner in which the offence was committed as well as the manner in which the dead body of the deceased was cut into pieces and burnt in an oven. We have held that part of the prosecution case so far as it relates to cutting of the dead body of the deceased and burning the same in an oven has not been proved. If that part of the prosecution story is discarded, it becomes a clear case of committing murder of his wife. We are, therefore, of the view that this cannot be brought within the ambit of "rarest of rare" cases so as to warrant the capital punishment. We, therefore, while maintaining conviction of Appellant No. 1 u/s 302/34 of I.P.C. reduce the sentence from death to rigorous imprisonment for life. The appeal is allowed in part and the Death Reference is answered accordingly. The Judgment and order of the Trial Court is modified to the above extent. B.P. Ray, J. I agree.