JUDGMENT PRADIP MOHANTY, J. — This appeal is directed against the judgment and order dated 4.9.1999 passed by the Sessions Judge, Sundargarh in S.T. No.3 of 1997 convicting the appellant under Section 302 I.P.C. and sentencing him to undergo imprisonment for life. 2. Appellant is deceased’s husband. They were residing together along with appellant’s mother P.W.3, appellant’s broth¬ers P.Ws.2 and 4, P.W.2’s wife P.W.5 and other family members. It is also not disputed that the deceased’s maternal uncle, inform¬ant P.W.1, who had been posted as the Headmaster of the school in the occurrence village, was also residing with them since about one year prior to the date of occurrence. 3. The occurrence took place at about 10.30 P.M. on 15.9.1996. Prosecution case is that the appellant and his two brothers were sleeping in the inner courtyard of the house where¬as P.W.1 and others were sleeping in different rooms. P.W.1 got up from his sleep on alarm being raised by P.W.3 shouting ‘MARI¬DELA GO MARIDELA GO’. He came out of the room and found that the appellant had been detained by his brothers P.Ws.2 and 4. He learnt that the appellant committed murder of his wife. P.W.1 also found that the deceased was lying dead with cut injuries in her room in which a Budia/Tangia (axe) M.O.I. was also lying. Appellant’s brothers and villagers kept the appellant detained in the night. In the following morning, the informant P.W.1 lodged written report Ext.1 at Bonai Police Station before the A.S.I. of police P.W.17, who registered the case and took up investigation. P.W.17 visited the spot and examined witnesses. He held inquest over the dead body of the deceased under inquest report Ext.2 in presence of P.Ws. 1,4,13 and 14. Being commanded by P.W.17, P.W.15, a police constable, accompanied dead body of the deceased for post mortem examination. P.W.16 Medical Officer of S.D. Hospital, Bonai held autopsy of the dead body of the deceased under post mortem report Ext.5. P.W.17 effected seizure of articles including axe M.O.I. under seizure list Ext.4 in presence of the seizure witnesses P.Ws.13 and 14. Appellant’s lungi was also seized under seizure list Ext.10. Deceased’s wearing apparels such as saree, saya and blouse were seized under seizure list Ext.12. P.W.17 also effected seizure of appellant’s nail clippings and sample blood under seizure list Ext.11. P.W.17 effected seizure of articles including axe M.O.I. under seizure list Ext.4 in presence of the seizure witnesses P.Ws.13 and 14. Appellant’s lungi was also seized under seizure list Ext.10. Deceased’s wearing apparels such as saree, saya and blouse were seized under seizure list Ext.12. P.W.17 also effected seizure of appellant’s nail clippings and sample blood under seizure list Ext.11. On 20.9.1996, investigation of the case was taken over by the O.I.C. of Police Station P.W.18 who examined some witnesses and sent the seized articles for chemical examination. Report of the chemical examination of the seized articles Ext.16 was received in Court from the laboratory. On completion of investigation, charge sheet was submitted against the appellant. 4. Appellant took plea of complete denial to the charge. In course of his examination under Section 313 Cr.P.C., the appellant also took the plea that he was at Lathikata in the night of occurrence. 5. In order to substantiate the prosecution case, as many as 18 witnesses were examined and also reliance was placed on documents marked exhibits 1 to 15 and material exhibit M.O.I. P.Ws.1 to 5 as well as P.Ws. 13 to 18 have already been intro¬duced in course of narration of the prosecution case. P.Ws.6 to 12 are post-occurrence witnesses. No defence evidence, oral or documentary, was adduced. 6. Out of the prosecution witnesses, P.Ws.3 and 4 as well as P.Ws.7 to 12 did not support the prosecution case and were declared to be hostile witnesses. Upon consideration of the materials on record, learned trial Court concluded that the evidence of witnesses proves that: (i) soon after the occurrence the appellant was caught by the inmates of the house and was made over to the police on the following day; (ii) on the arrival of the inmates of the house they were told by P.W.3 that the accused had killed the deceased; (iii) Tangi seized from near the place had contained blood; and (iv) Appellant’s lungi also was found to have contained blood of the origin similar to that of the deceased. Accordingly, the appellant was held guilty of the charges. 7. In assailing the impugned judgment it is submitted by the learned counsel for the appellant that there is no eye-witness to the occurrence. Prosecution relied upon circumstantial evidence only. It is strenuously contended that none of the circumstances has been established by the prosecution by cogent evidence. Accordingly, the appellant was held guilty of the charges. 7. In assailing the impugned judgment it is submitted by the learned counsel for the appellant that there is no eye-witness to the occurrence. Prosecution relied upon circumstantial evidence only. It is strenuously contended that none of the circumstances has been established by the prosecution by cogent evidence. It is further contended that even if it is held that any of the circumstances is established there is no chain of circumstances to establish appellant’s complicity with the death of the deceased. Learned trial Court has passed the impugned judgment on the basis of surmises and conjectures only by relying upon inadmissible evidence such as police statements of the witnesses. Prosecution is guilty of withholding appellant’s lungi as well as deceased’s wearing apparels stated to have been seized in course of the occurrence. Seizure of axe M.O.I. is not an incriminating circumstance against the appellant. It was incum¬bent upon the prosecution to prove the motive behind the crime alleged to have been committed by the appellant as the case is based on circumstantial evidence. In absence of evidence showing any motive on the part of the appellant, prosecution case has no basis to stand. Learned counsel appearing for the State supports and defends the impugned judgment. 8. It is not disputed that the deceased met with homicidal death. P.W.16 upon autopsy of the dead of the deceased found one incised wound of size 6" x 2" x 1-1/2" on deceased’s neck below the left jaw extending from the thyroid cartilage at its upper boarder to the back of the neck. Both the carotid arteries and jugular veins were cut. P.W.16 concluded that death of the de¬ceased was due to shock resulting from haemorrhage. The injury was ante mortem in nature and sufficient to cause death in ordi¬nary course of nature. P.W.16 also appears to have examined axe M.O.I. and opined that injury on the deceased could have been caused by M.O.I. 9. P.W.1 informant deposed to have got up in the night hearing shout. He deposed that he asked P.W.2 the reason for such shouting. P.W.2 informed him that the appellant cut the deceased. It was further deposed by P.W.1 that the appellant was not present there. P.W.4 caught hold of the appellant from another room. P.W.1 ascertained subsequently that the appellant cut his wife by axe. He deposed that he asked P.W.2 the reason for such shouting. P.W.2 informed him that the appellant cut the deceased. It was further deposed by P.W.1 that the appellant was not present there. P.W.4 caught hold of the appellant from another room. P.W.1 ascertained subsequently that the appellant cut his wife by axe. It is in the evidence of P.W.1 that he saw the Tangia lying inside the courtyard. In the F.I.R. Ext.1 informant P.W.1 had reported that hearing alarm raised by appellant’s mother P.W.3 he woke up from his sleep and seeing him appellant’s mother as well as both the brothers of the appellant told him that the appellant assaulted the deceased by means of the axe. However, while deposing in Court P.W.1 does not support such allegations. Moreover, in course of his cross-examination P.W.1 admitted that he had not stated before the Investigating Police Officer that when he asked P.W.2 the reason for shouting, P.W. informed him that the appellant cut the deceased. That apart, it has been brought out in evidence that P.W.1 had not stated before the Investigating Police Officer P.W.17 that he came to know from P.W.2 that appellant had cut the deceased. P.W.2 testified that on hearing shout of his mother he woke up and shouted. On being asked, his mother P.W.3 replied that the appellant was assaulting and beating. When P.W.2 was rushing towards the room, the appel¬lant came out of the room throwing something inside the room. He entered inside the room and found that the deceased was lying and her neck had been cut and blood was coming out from that portion of her body. He also testified that he saw one axe lying in the floor and his brother P.W.4 had caught hold of the appellant and appellant had cut neck of the deceased. P.W.2 deposed that he and others tied the appellant by means of a rope. It has been brought out in evidence that he had not stated before P.W.17 that on coming to know from his mother that the appellant assaulted his wife, when he was proceeding towards the room, the appellant was coming out throwing something inside the room or that one axe was lying on the floor of that room. Also P.W.2 had not stated before P.W.18 that he had seen accused coming out of the room and that an axe was lying inside. Also P.W.2 had not stated before P.W.18 that he had seen accused coming out of the room and that an axe was lying inside. Admittedly, P.Ws. 3 and 4 did not support the prosecution case. So also P.Ws.7 to 12 have been declared hostile. P.Ws.5 and 6 did not support the prosecution in impli¬cating the appellant with the alleged offence. Both of them simply stated to have seen that the appellant was tied by means of a rope. 10. It is curious to note that learned Sessions Judge has observed that admission of P.W.8, a hostile witness, in answering to the leading questions put by the prosecution, to the effect that he had stated before the police, that on 15.9.1996 at about 10.30 P.M. in the night on hearing shout of mother of the appel¬lant ‘MARIDELA GO MARIDELA GO’ he along with his wife came and saw that P.Ws.2 and 4 were tying the appellant, that appellant’s mother was standing there and crying, and that she stated that the appellant assaulted the deceased by means of an axe; lends corroboration to the prosecution case. However, admission of a witness to have made certain statements before the I.O. amounts to proof of the appellant’s police statement which can only be utilized for the purpose of contradiction of such witness. Admis¬sion by a witness to have made certain statement before the Investigating Police Officer does not amount to making a positive state¬ment before the Court. P.W.3 having herself not made any such assertion and the above being nature of evidence available on record, there is no scope to rely upon evidence of P.W.8 to con¬clude that P.W.3 told anybody that it was the appellant who dealt fatal blow on the deceased. 11. Admittedly, the axe M.O.I. has not been seized from the possession of the appellant. Prosecution case is that the appel¬lant was sleeping in the courtyard. Witnesses are not consistent regarding the place from which axe M.O.I. was recovered. Chemical examination report Ext.16 reveals that blood was detected on M.O.I. However, it has not been indicated that it was human blood. No doubt deceased’s wearing apparels as well as appel¬lant’s lungi stated to have been seized were found to contain human blood of ‘B’ group. None of the articles has been produced in Court. Chemical examination report Ext.16 reveals that blood was detected on M.O.I. However, it has not been indicated that it was human blood. No doubt deceased’s wearing apparels as well as appel¬lant’s lungi stated to have been seized were found to contain human blood of ‘B’ group. None of the articles has been produced in Court. It is also observed that though the appellant’s blood sample was collected, grouping of appellant’ blood has not been ascertained. His nail clippings were not found to contain any blood. Appellant being husband of the deceased, even if it is assumed for the sake of argument that his lungi contained blood of same origin as that of the deceased, such circumstance alone is not incriminating against the appellant. Such being the state and nature of evidence available on record, we are of the consid¬ered judgment that it is not safe to conclude that the appellant dealt fatal blow to the deceased which caused her death. The appellant is entitled to be acquitted. 12. In the result, the appeal is allowed. The impugned judgment and order are set aside. It is stated that the appellant Fakira Rana is still in custody. If that be so, the appellant be set at liberty forthwith unless his detention is required in any other case. B.K. PATEL, J. I agree. Appeal allowed.