JUDGMENT This criminal appeal is directed against the judgment and order dated 24.03.2004 passed by the learned Adhoc Addl.Sessions Judge, Jeypore convicting the present accused-appellant under Section 302 of I.P.C. and sentencing him to undergo R.I. for life and to pay a fine of Rs.1,000/-, in default to undergo R.I. for further six months in C.T. Case No.24 of 2002. 2.Succinctly stated the prosecution case is that on 12.10.1999 (Tuesday, the accused, his wife (the deceased), their daughter Rita and younger son Dama, after taking dinner, slept in one house. On that day, the sister of the accused, namely, Singi Muduli came to his house and she was also staying with them during that night in the same premises. At about 1.00 A.M., in the night, when the younger son of the appellant cried, the sister of the appellant, Singi (D.W.1) woke up and saw the deceased lying in bleeding condition with her neck cut. Her brother (appellant) ran away from the house. While going, he told that he gave a blow to the deceased-Jama on her neck with an axe (Tangia) as she quarreled with him. He left the house leaving the said Tangia in the house and Jama succumbed to the injuries. The sister of the accused Singi, informed the matter on the next date early morning to one Ghasi Badanaik (P.W.3) of the said village. He (P.W.3) went to the house of the accused and saw the deceased lying dead in a bleeding condition and the weapon of offence, i.e., the axe was lying nearby. He called other villagers including the Sarpanch who instructed him to lodge an F.I.R. before the police. Accordingly, he lodged the F.I.R. on the next date at Koraput Sadar P.S. The F.I.R. was registered and after investigation, charge sheet was filed against the accused-appellant. During investigation, the I.O. seized the other incriminating materials including the wearing apparels of the deceased and the weapon of offence and sent all those articles for chemical examination. After completion of investigation, charge sheet was submitted against the accused-appellant under Section 302 of I.P.C. 3.The defence plea is complete denial of the occurrence. In order to prove its case, prosecution examined as many as nine witnesses including the doctor (P.W.6) who conducted autosy over the dead body of the deceased and exhibited 13 documents. The defence has examined two witnesses including the present appellant. In order to prove its case, prosecution examined as many as nine witnesses including the doctor (P.W.6) who conducted autosy over the dead body of the deceased and exhibited 13 documents. The defence has examined two witnesses including the present appellant. 4.The learned Sessions Judge, who tried the case, convicted the present appellant under Section 302 of I.P.C. with a finding that the accused had committed the murder of his wife in a brutal manner. He further held that as there was no material on record to apply any of the exceptions of Section 300 of I.P.C., the appellant cannot be said to have committed culpable homicide not amounting to murder. Accordingly, the appellant was found guilty of the offence punishable under Section 302 of I.P.C. 5.Learned counsel for the accused-appellant submitted that basing upon the following grounds the appellant has been convicted. 1. Basing upon the testimony of P.W.5, who is a child witness though have not seen the occurrence, falsely implicated the present appellant at the instance of her aunt. 2. Basing upon the seized articles which have not been proved in accordance with law. 3. Without properly considering the evidence of D.W.1 and 2 by the trial Court. 6.Learned counsel for the accused-appellant further submits that P.W.5, the child witness has not been examined in accordance with law and before examining the child witness, she was not tested properly by the trial Court. He further submits that the accused-appellant has been languishing in custody for more than 14 years and three months. Learned counsel for the accused-appellant draws our attention to the decision reported in 2013 (4) Supreme 38 (Shivasharanappa and others v. State of Karnataka). 7.Mr. Zafarulla, learned Addl.Standing counsel vehemently contends that there is no illegality committed by the trial Court in convicting the accused-appellant. He also submits that P.W.5 is an eye-witness to the occurrence. She in her examination has stated that she herself, deceased (her mother), her father and younger brother were sleeping together in a room and hearing the cry of her younger brother, she got up in the night. There was a kumbi lamp in the room. She saw her mother lying on the floor having heavy bleeding from the neck and her father was standing near her. When D.W.1-Singi Muduli enquired from her father, he told that he killed the deceased by an axe. There was a kumbi lamp in the room. She saw her mother lying on the floor having heavy bleeding from the neck and her father was standing near her. When D.W.1-Singi Muduli enquired from her father, he told that he killed the deceased by an axe. Thereafter, her father ran away from the house by opening the door. The prosecution further reveals that police seized the blood stained earth, sample earth, axe wearing apparels of the accused and deceased and sent those articles for chemical examination and the chemical examination report marked as Ext.13 reveals that human blood of ‘A’ group was detected from the axe (M.O.I.), Lungi of the appellant, the blood stained earth and also the Saree of the deceased. The medical evidence of doctor (P.W.6), who conducted the autopsy, corroborates her version. He relies on the decisions reported in (2011) 49 OCR 758 (Rajani Kanta Panda v. State of Orissa),* 2012 (51) OCR 782 (Kapileswar Sahu v. State of Orissa),+ (2009) 43 OCR (SC) 374 (State of Karnataka v. Shantappa Madivalappa Galapuji and others). 8.Perused the L.C.R. and the decisions cited by the parties. In this case, there exists no eye-witness. P.W.1 is a co-villager and witness to the seizure of blood stained earth and sample earth. 9.P.W.2 is another co-villager, who in the cross-examination stated that at the time of recovery of the axe, he himself, the I.O. and the A.S.I. were present there. At the time of search and seizure also, he himself and the A.S.I. were present. 10.P.W.3 is the informant, who in his examination stated that he knew the accused and deceased. On the next date of occurrence, he was at his house. Singi Muduli (D.W.1), the sister of the deceased came to her and informed her that accused killed his wife. Hearing the same, he went to the house of the accused and saw the dead body of the deceased lying on the floor inside the house having blood stained injury on her neck and a blood stained axe was lying nearby. Accordingly, he himself and Sonu Badanaik (P.W.4) went to Sadar P.S. and lodged the oral report, which was reduced to writing by the police and was read over and explained to him and thereafter he put his signature under Ext.2. Thereafter, police held the inquest over the dead body and he signed over the inquest report under Ext.3. Accordingly, he himself and Sonu Badanaik (P.W.4) went to Sadar P.S. and lodged the oral report, which was reduced to writing by the police and was read over and explained to him and thereafter he put his signature under Ext.2. Thereafter, police held the inquest over the dead body and he signed over the inquest report under Ext.3. Police also seized blood stained axe which was lying near the dead body and prepared seizure list and put the signature on the said seizure list under Ext.4/1. In his cross-examination he has specifically stated that the accused and deceased had stayed as husband and wife for several years. He had no personal knowledge about the relationship between the husband and wife. Singi along with Madhu, son of the deceased came to him and informed about the occurrence. The accused had tow rooms and the dead body and the axe were lying in the outer room. Jagabandhu, Bisu, Sonu and some other villagers decided to lodge the report. It has been further stated that at the time of incident, Singi Muduli (D.W.1) was alright, but now he is behaving like insane. He has also stated that it is not a fact that Singi Muduli (D.W.1) has not stated anything to him and it is not a fact that the accused had killed the deceased. 11.P.W.4 in his examination stated that on the next date of occurrence in the morning, being informed by Rita (P.W.5) that her father killed her mother and fled away, he went to their house and found the dead body of the deceased with bleeding injuries on her neck. An axe was lying near the dead body. Accordingly, he himself and Ghasi went to Koraput Sadar P.S. and reported the incident to the police, who reduced the same in writing and read over and explained to them and Ghasi (P.W.3) signed on the report and he put his L.T.I. In his cross-examination, he has stated that Madhu was not present when Rita told the incident to him. 12.P.W.5 who is a child witness, in her examination stated that on the night of occurrence, her father, mother, she herself, her another brother, namely, Domu and D.W.1 were sleeping in the house. Hearing the cry of her younger brother, she got up and saw her mother lying on the floor having heavy bleeding from the neck. 12.P.W.5 who is a child witness, in her examination stated that on the night of occurrence, her father, mother, she herself, her another brother, namely, Domu and D.W.1 were sleeping in the house. Hearing the cry of her younger brother, she got up and saw her mother lying on the floor having heavy bleeding from the neck. Her father was standing near her. When D.W.1 enquired, her father told that he killed the deceased by an axe. Thereafter, her father ran away from the house by opening the door. It has been further stated in her examination that during the night, her elder brother Madhu was sleeping in the Dhangadabasa of the village. In the morning she told the incident to her elder brother Madhu at Dhangadabasa. In her cross-examination, she told that on the night of occurrence, Singi Muduli (D.W.1) was sleeping in the inner room, but her parents, she herself and her younger brother were sleeping in the outer room. On that day, two guests, namely Singi Muduli and Mama had come to their house. D.W.1 was sleeping alone in the inner room and Mama slept in the Dhangadabasa, which is at a distance of about 100 metres from their house. P.W.5 also stated that she could not say how many persons had slept in the Dhangadabasa in the night of occurrence. D.W.1 was sleeping in the inner room by closing the door. By the time D.W.1 came to outer room, her father was present there. 13.P.W.6, the doctor, who conducted the postmortem examination over the dead body of the deceased in his examination, stated that he has found the following injuries on the dead body. “One incised wound over the front aspect of midline of neck situated horizontally 1 c.m. above the supra sternal notch. It was of the size of 2½” x 2”. The wound cavity was filled with clothed blood. Further internal examination revealed that the underlying muscles and vessels of neck transacted with complete transaction of trachea and esophagus. Tracheal cavity was filled with clotted blood.” P.W.6 in his examination further stated that the injury was ante mortem in nature. The cause of death was due to hemorrhage, shock and asphyxia. Death was within 48 hours of his examination and the same was homicidal in nature. The injury found by him can cause death in the ordinary course of nature. The cause of death was due to hemorrhage, shock and asphyxia. Death was within 48 hours of his examination and the same was homicidal in nature. The injury found by him can cause death in the ordinary course of nature. On the same day, he received the weapon of offence from A.S.I. Koraput P.S. to give his opinion. M.O.I. is the axe, which had been sent to him for examination. After examination of the weapon and the postmortem report, he opined that the injury found on the neck of the deceased can be possible by Tangia (M.O.1) and the said injury can be sufficient for the death of the deceased. In his cross-examination, the doctor has stated that the A.S.I. sent the weapon of offence to him on the same day but he did not note the exact time. It has been further stated that the A.S.I. was not present with him at the time of examination of the weapon, but the constable was present there. 14.P.W.7, who is a constable in his deposition, has stated that the wearing apparels of the deceased were seized in his presence by the A.S.I. and he put his signature in the seizure list under Ext.7/1. 15.P.W.8 is the A.S.I. of Koraput Sadar P.S. who registered the case. In his examination, he has stated that he visited the spot and prepared spot map, marked as Ext.8. It has been further stated that the house of the deceased consists of two rooms and the out room is the spot. From the spot he seized the weapon of offence, i.e., M.O.I. which was blood stained and was lying near by the dead body. Ext.4 is the seizure list and Ext.4/2 is his signature. On 13.10.1999 at 2.00 P.M., he conducted inquest over the dead body of the deceased, prepared inquest report in presence of witnesses, also proved inquest report under Ext.3 and sent weapon of offence under M.O.I. to the Medical Officer for his opinion. Thereafter, on 14.10.1999, he handed over the investigation to the O.I.C., B.K. Mallik. In his cross-examination he admitted that he recorded the statement of Sonu Bodanaik and Sonu has stated before him that when he reached the house of the deceased, Madhu and Rita were weeping there and disclosed that their father had killed their mother. Thereafter, on 14.10.1999, he handed over the investigation to the O.I.C., B.K. Mallik. In his cross-examination he admitted that he recorded the statement of Sonu Bodanaik and Sonu has stated before him that when he reached the house of the deceased, Madhu and Rita were weeping there and disclosed that their father had killed their mother. He further stated that the F.I.R. does not disclose that Rita enquired from her father and her father disclosed that he killed her mother. He also admitted that Madhu Badanaik has not been shown as a witness in the charge sheet and also examined Rita on the same day so also Singi Muduli. He recorded the statement of Singi Muduli under Section 161 of Cr.P.C. The two rooms of the house situate side by side. 16.P.W.9 took charge of O.I.C. Koraput Sadar P.S. from AS.I., M. Sahani (P.W.8) on 14.10.1999 and carried out investigation of this case. In his examination, he has stated that he examined Ramamurty Muduli, visited the spot and arrested the accused on 14.10.1999 at 3.00 P.M. He also seized the wearing apparels of the accused vide seizure list under Ext.11 and forwarded the accused to Court on 15.10.1999. On 29.11.1999, he despatched the seized articles for chemical examination vide forwarding letter under Ext.12. After completion of investigation, he submitted charge sheet. In his cross-examination he has stated that he examined Ramamurty Muduli on 14.10.1999, but he could not say whether Rita Badnaik had gone to the police station before 14.10.1999. 17.D.W.1, Singi Muduli is the cousin sister of the accused. In her examination-in-chief, she stated that she slept in the house of the accused in the night of occurrence. The daughter of the accused, Rita Badanaik (P.W.5) slept in Dhangadi Basa, which is about 200 metres away from the house of the accused. On the next date morning, she was woken up by Rita and saw that the deceased was lying, but she could not say whether the deceased was sleeping or dead. She had not seen who had killed the deceased. In her cross-examination, she admitted that previously on one occasion, she had come to Court to depose in this case but as her mental condition was not fit at that time, she could not depose. Now, also she was with the same condition and was not understanding the matter properly. She had not seen who had killed the deceased. In her cross-examination, she admitted that previously on one occasion, she had come to Court to depose in this case but as her mental condition was not fit at that time, she could not depose. Now, also she was with the same condition and was not understanding the matter properly. In her cross-examination, she has also stated that she could not remember anything about the occurrence. 18.D.W.2 is the accused, who in his examination-in-chief stated that his daughter has deposed in this case being tutored by others. In his cross-examination, he has stated that she could not say who tutored his daughter to depose against him. He also admitted that usually he himself, his wife and daughter sleep in one house. On the question put to the accused by the Court, the accused stated that till the date of arrest, he had no dispute with his daughter, Rita. 19.An analysis of evidence would show that in the night while hearing the cry of Dama Badanaik, the younger son of the deceased, when P.W.5 work up, she found that neck of the deceased had been cut and blood was scattered around her neck. She also saw at that time that appellant was standing near her. On being questioned by D.W.1, the appellant said that due to quarrel between him and his wife, he cut the neck of the deceased with Tangia. However, this version of P.W.5 has not been corroborated by any other witness. It has been held by the apex Court in the judgment reported in 2013 (4) Supreme 38 (Shivasharanappa and others v. State of Karnataka) that the Court can rely upon the testimony of a child witness and it can form the basis of conviction if the same is credible, truthful and is corroborated by other evidence brought on record. Corroboration is not a must to record a conviction, but as a rule of prudence, it is always desirable to see that the corroboration from other reliable evidence is placed on record. 20.The facts of judgments cited by the learned Addl.Standing Counsel are different since in all those cases besides the evidence of child witness as eye-witness, other probable evidence was there. 21.In the present case, P.W.5 cannot be described as an eye-witness. She has not seen the actual occurrence. 20.The facts of judgments cited by the learned Addl.Standing Counsel are different since in all those cases besides the evidence of child witness as eye-witness, other probable evidence was there. 21.In the present case, P.W.5 cannot be described as an eye-witness. She has not seen the actual occurrence. When she woke up, she saw her mother was lying on the floor and her father was standing near her, and thereafter, the father opened the door and fled away. In fact, she had no knowledge about the author of crime. Further, P.W.5 has not whispered anything about Tangia lying on the floor. 22.Ext.4 is the so-called seizure list of Tangia prepared by P.W.8, the then A.S.I., who seized the Tangia. The said A.S.I. went to the spot, seized the Tangia, prepared Ext.4 and obtained L.T.I. of one Rabi Muduli (P.W.2) and another Ghasi Badanaik (P.W.3). It may be noted that Ext.4 refers to a separate sheet containing details of property seized. But, the details of the separate sheet have not been exhibited in order to prove the same by the A.S.I. Similarly, Ext.11 is the so-called seizure list of wearing apparels of the appellant, which was seized by P.W.9, O.I.C., Koraput Sadar P.S. and like Ext.4, it says details of property seized has been attached in a separate sheet. In the said seizure list, both L.T.I. of Ramamurty Muduli and Rita Badnaik has been obtained as witnesses, but the said separate sheet has not been exhibited by the I.O. in order to prove the same. Ext.13 is the chemical examination report which indicates that the Saree of the deceased contained human blood of Group ‘A’ so also the Tangia and Lungi of the accused seized by the police. However, on perusal of the statement recorded under Section 313 Cr.P.C., it reveals that no specific question was put to the accused by specifically referring to Exts.4 and 11. Ext.13 reveals that human blood was detected from the wearing apparels of the accused and axe. Since no question was put to him with regard to Exts.4 and 11 by the prosecution, the Court should not rely upon these two documents. 23.Since the prosecution has not proved seizure as indicated above, there exists no material to connect so called seized materials with chemical examination report and postmortem report. In such background, this Court is not inclined to accept the chemical examination report. 23.Since the prosecution has not proved seizure as indicated above, there exists no material to connect so called seized materials with chemical examination report and postmortem report. In such background, this Court is not inclined to accept the chemical examination report. Thus, here the chain of circumstances is not complete as to connect the appellant with crime. Thus, on a cumulative appreciation of evidence, this Court is of the opinion that basing upon the suspicious circumstances, the conviction cannot be sustained. (See (2010) 2 SCC 583 (Aftab Ahmad Ansari v. State of Uttaranchal). 24.Considering the facts and circumstances of the case, in the result, the Jail Criminal Appeal is allowed. The judgment dated 24.3.2004 passed by the learned Adhoc Addl.Sessions Judge, Jeypore in Criminal Trial No.24 of 2002 convicting the appellant under Section 302 of I.P.C. and sentencing him to undergo imprisonment for life and pay a fine of Rs.1,000/-, in default to undergo R.I. for a further period of six months is set aside. The appellant-Chana Badanaik be set at liberty forthwith, unless his detention is required otherwise. The JCRLA is accordingly disposed of. Appeal allowed.