JUDGMENT : S.C. Parija, J. - The judgment dated 25.03.1996 of the Sessions Judge, Bolangir, passed in Sessions Case No. 123 of 1995, holding the accused guilty u/s 302 I.P.C. and convicting him thereunder, is under challenge in this appeal. 2. The case of the prosecution, is that, on 20.6.1985, the Grama Rakhi of the village (P.W.3) was present in his house and being called, he came to the house of one Chittaranjan Pradhani where Ghanashyam Pradhani and Ramnivas Agarwal (P.W.6) informed him that the accused had killed his grand-father. On hearing about the incident, P.W.3 went to the house of the deceased and found the dead body of the deceased lying in a pool of blood, in front of the house. On interrogation, the accused confessed before him to have killed his grand father when he refused to give him his share in a partition. P.W.3 went and informed the matter to the police over phone and on receipt of the telephonic message, the police visited the spot at about 7.30 A.M. and on the same day, P.W.3 gave a report orally to the O.I.C., Tusura P.S. (P.W.9), who reduced the same into writing and treated the same as F.I.R. and took up the investigation. 3. During course of investigation, P.W.9 examined witnesses, held inquest over the dead body of the deceased and sent the dead body for post mortem examination. He seized a portion of the handle of a tangi and wearing apparels and arrested the accused. While the accused was in custody, he gave recovery of the tangi (M.O.I) concealed in his house which was seized along with wearing apparels of the accused. He forwarded the accused to jail custody and sent the M.Os. to R.F.S.L., Sambalpur, for chemical examination and charge sheet was submitted against the accused. 4. The plea of the accused is one of complete denial. 5. The prosecution examined nine witnesses in support of its case. P.W.1 is the doctor who conducted post mortem examination on the dead body of the deceased and P.W.2 is the doctor who examined the injured witness Kumari Rana (P.W.2) on police requisition. P.W.3 is the Grama Rakhi (Informant), who lodged the information with the police and P.W.4 is the wife of the deceased. P.W.7 is the daughter-in-law. P.Ws. 6 and 8 are two seizure witnesses. P.W.3 is the Grama Rakhi (Informant), who lodged the information with the police and P.W.4 is the wife of the deceased. P.W.7 is the daughter-in-law. P.Ws. 6 and 8 are two seizure witnesses. P.W.9 is the Investigating Officer in the case and P.W.5 is the officer who had submitted the charge sheet. 6. The doctor (P.W.1) who conducted post mortem on the dead body stated in his evidence that there were six incised external wounds on the dead body of the deceased, which were on the right side face, right side shoulder, right side neck and on the lateral side of the left arm. P.W.1 further stated that all these injuries were ante-mortem in nature and might have been caused by sharp cutting weapon. P.W.1 further opined that all the injuries taken together are sufficient in ordinary course of nature to cause death and that the death of the deceased was homicidal. The I.O. had produced the tangi (M.0.1) before the doctor (P.W.1) who on seeing the same, had opined that the injuries on the dead body of the deceased could have been caused by such tangi. 7. According to the prosecution, the wife of the deceased (P.W.4) and the daughter-in-law of the deceased (P.W.7) were the eye?witness to the alleged assault. However both P.Ws. 4 and 7 did not support the case of the prosecution and pleaded complete ignorance as to who killed the deceased and how the deceased was murdered. 8. In absence of any support from the eye-witnesses, the prosecution mainly relied on (a) the extra judicial confession alleged to have been made by the accused before the Grama Rakhi (P.W.3), (b) the recovery of tangi (M.O.I), which is alleged to be the weapon of offence, u/s 27 of the Evidence Act, (c) seizure of other incriminating articles such as clothings and nail clippings of the accused, which were found to have bee stained with human blood and (d) the motive. 9. Coming to the extra judicial confession, P.W.3, who is the Grama Rakhi of the village, has stated in his evidence that on 20.6.1995 being informed, he went to the spot and found that the dead body of the deceased was lying in a pool of blood in front of his house and he noticed cut injuries on the neck, shoulder and chin of the deceased. The accused was present in the house and being asked, the accused confessed before him (P.W.3) that he has killed the deceased when he refused to gave him a share in a partition. This fact, with regard to the confession of the deceased had also been reported by P.W.3 and reflected in the F.I.R. (Ext. 6/2). Learned Sessions Judge, considering'such confession to be voluntary and there being no enemity between the accused and the Grama Rakhi (P.W.3), has proceeded to accept such extra judicial confession as the basis to believe that the accused was the assailant. 10. Coming to the seizure of incriminating articles such as tangi (M.O.I) and wearing apparels of the accused, the prosecution case was that while the accused was in policy custody, he admitted to have killed his grand-father and gave recovery of the tangi (alleged weapon of offence), which was seized by the I.O. P.Ws. 6 and 8, according to the prosecution, were seizure witnesses, when the I.O. seized the tangi (M.O.I) P.Ws. 6 and 8 in their evidence however do not support the fact of seizure, which is supported only by the story of the I.O. (P.W.9), who stated that on the basis of the statement of the accused, he searched the house of the accused in presence of the witnesses and brought out the tangi (M.O.I) stained with blood. 11. Inspite of the fact that the two seizure witnesses (P.Ws. 6 and 8) did not support the case of the prosecution with regard to search and recovery of the tangi (M.O.I) from the house of the accused, learned Sessions Judge has proceeded to hold that it is enough if on the basis of the information received from the accused, the I.O. makes search and recovers the weapon of offence and that the evidence of P.Ws. 6 and 8 does corroborate the evidence of I.O., irrespective of the prevaricating statements in their cross-examination as regard the seizure of the tangi (M.O.I). 12. Regarding the seizure of wearing apparels of the accused and the deceased by the I.O. (M.O.IV to VII), no independent witness in support of such seizure has been examined by the prosecution. The said apparels as well as the tangi (M.O.I.) had bee sent by the I.O. for chemical examination and the report of the Chemical Examiner reveals that human blood stains were noticed on all the M.Os, except the nail clippings. The said apparels as well as the tangi (M.O.I.) had bee sent by the I.O. for chemical examination and the report of the Chemical Examiner reveals that human blood stains were noticed on all the M.Os, except the nail clippings. The said report did not give any finding as to the blood group or the dimension of the blood stains. Learned Sessions Judge has proceeded to hold that non-mention of the Mood group and the dimension of the blood stains in the report cannot be a ground to discard the chemical examination report, which lends support to the fact that the accused was the assailant. 13. Coming to the motive, P.W.4, in her evidence had stated that there was litigation between the deceased and the accused and when her husband (deceased) transferred certain family lands in her name, the accused was very much annoyed and was in search of an opportunity to take revenge against the deceased. In the cross-examination, P.W.4 denied the fact that there was any litigation between the deceased and the accused and that the accused was cultivating Ac.2.05 dec. of lands separately out of the family lands and was also residing separately. On the basis of such statements of P.W.4, learned Sessions Judge has come to find that there is a strong motive behind the murderous assault on the accused. 14. On a perusal of the evidence of the Grama Rakhi (P.W.3), who is the informant in the case, it is seen that he had stated that he went with Ramnivas Agarwalla and telephoned to the Police Station and then he went to the Police Station and orally reported the matter, which was reduced into writing. He again says that after receiving his phone message when police came to the house of the accused for investigation, he submitted the report orally, which was reduced into writing. However, Ramnivas Agarwalla (P.W.6) in his evidence does not state anything about the presence of P.W.3 in the house of the deceased or with regard to the intimation of the incident by P.W.3 to the pqlice over phone. 15. With regard to the seizure of tangi (M.O.I), the seizure witness (P.W.6) in his cross-examination clearly states that the police called him and showed him a tangi and told that they have seized the tangi and wanted his signature. 15. With regard to the seizure of tangi (M.O.I), the seizure witness (P.W.6) in his cross-examination clearly states that the police called him and showed him a tangi and told that they have seized the tangi and wanted his signature. He further stated that he was not taken to the house of the accused nor the tangi was seized from the house. The other seizure witness (P.W.1) stated in his. evidence that he was not present when the police seized the tangi. 16. Coming to the evidence of P.Ws. 4 and 7, who are said to be eye witnesses to the alleged assault, it is seen that P.W.4, who is the wife of the deceased, had been declared hostile and on cross-examination by the prosecution had denied the fact that she had stated before the I.O. that just before the murder, the accused and the deceased had picked up quarrel regarding landed property. She also denied the fact that she had stated before the I.O. that the accused demanded share in the landed property repeatedly and that when her husband refused to give him a share, the accused went to his house and brought a tangi and dealt two blows by its sharp cutting side on his back and that on account of such assault, her husband (deceased) fell down on the ground and sustained severe bleeding injury. She also denied that thereafter the accused Jaya ran towards the road to assault the witness and returned back and dealt two more blows on the neck of the deceased with the Tangi. In her cross-examination by the defence, P.W.4 stated that during the life time, her husband had not transferred any land in writing in her favour or in favour of any other person and that the accused was cultivating 2 1/2 Acres of land separately out of the family land and was residing separately. She further stated that there was no litigation between the deceased and the accused. 17. The other eye witness (P.W.7) stated in her evidence that she did not know who killed the deceased and how he was killed. She further stated that there was no litigation between the deceased and the accused. 17. The other eye witness (P.W.7) stated in her evidence that she did not know who killed the deceased and how he was killed. Having been declared hostile, in her cross examination by the prosecution, she denied the fact that on the date of occurrence, when the deceased was about to execute a registered document in favour of her son, the accused obstructed him telling that he will not allow to execute a registered deed. She also denied the fact that the accused brought out a Tabli and gave two blows on the neck of the deceased in her presence. She admitted that the accused is her step son. In her cross-examination by the defence, P.W.7 stated that the police had instructed her to give statement against the accused before the Magistrate and had threatened that unless she gave such statement, she will be booked in the case. She further stated that on being tutored by the police, she made false statement before the Magistrate and at the time the statement was recorded by the Magistrate, the police was present. 18. In view of the evidence of P.Ws. 4 and 7, who were said to be eye witnesses to the occurrence and the evidence of P.Ws.6 and 8, who were the seizure witnesses and the fact that the seizure of wearing apparels by the I.O., is not supported by any independent witness, the finding of the learned Sessions Judge in that regard cannot be accepted. Moreover, as the alleged confession said to have been made by the accused before the Grama Rakhi (P.W.3) is not supported by any corroborating evidence, the same cannot be the sole basis for sustaining the order of conviction. Moreover it is highly improbable that the accused would have made such confession before P.W.3, who is neither a close relative or friend of the accused. Accordingly, on examination of the evidence of the witnesses, we are of the considered view that in absence of any eye witness to the occurrence, there is no cogent, consistent and unimpeachable circumstantial evidence, which excludes all other hypothesis and suggests the guilt of the accused. Moreover, there is no clear proof regarding the existence of a strong motive for the accused to murder the deceased. Moreover, there is no clear proof regarding the existence of a strong motive for the accused to murder the deceased. Accordingly, the conviction of the accused u/s 302 IPC, made on the basis of the alleged confessional statement and recovery of the blood stained tangi (M.O.I) as well as the wearing apparels of the accused . and the purported motive of the accused cannot be sustained and is accordingly set aside. 19. The prosecution having failed to establish the charges against the accused beyond all reasonable doubt, he is acquitted of the charges u/s 235(1) Code of Criminal Procedure The appeal is accordingly allowed. A.S. Naidu, J. 20. I agree. Final Result : Allowed