JUDGMENT B. Mohanty, J. - This Jail Criminal Appeal is directed against the judgment and order dated 10.11.2004 passed by the learned Addl. Sessions Judge, Nabarangapur-camp at Umerkote in Criminal Trial No.13 of 2002 corresponding to Criminal Trial No.197 of 2002 of the Sessions Judge, Koraput-Jeypore. By the above noted judgment, the appellant has been convicted under Section 302 of IPC and has been sentenced to undergo imprisonment for life. 2. The case of the prosecution is that the deceased Ghasiram Gond was in the habit of returning home in an unconscious condition and used to pick up quarrel with his wife (P.W.1) every day. On 23.6.2002, around 8.00 P.M., the deceased came home after taking liquor. The appellant who happens to be the adopted son of the deceased and P.W.1 gave him lathi blows causing bleeding injuries on the head. The adoptive mother (P.W.1) tried to intervene but her husband died at the spot. The wife of the deceased (P.W.1) told the matter to Sukudu Gand and the matter was reported to the police and accordingly the police took up investigation and submitted charge sheet. 3. The prosecution in order to bring home charges examined as many as nine witnesses. P.W.1 is the wife of the deceased and adoptive mother of the appellant. P.Ws.2 and 3 are the relatives of P.W.1. P.W.4 is a co-villager. P.W.5 is a witness to the inquest. P.W.6 is the doctor, who conducted the autopsy. P.W.7 proved the command certificate. While P.W.8 is the scribe of the FIR under Ext.1, P.W.9 happens to be the Investigating Officer. From the side of the prosecution, 10 documents were exhibited and the lathi was marked as M.O.I. The plea of the appellant was complete denial. Further during his examination under Section 313 Cr.P.C., 1973 the appellant answered most of the questions in negative. He has not examined anybody from his side nor has he exhibited any document. Learned trial court after analysing the evidence, came to hold that the prosecution has succeeded in establishing its case and accordingly convicted the appellant under Section 302 IPC. 4. Mr. Pulakesh Mohanty, learned counsel for the appellant submitted that the learned court below has fallen into a fundamental error in treating P.W.1 as an eyewitness whereas in fact she was never an eye-witness to the occurrence. 4. Mr. Pulakesh Mohanty, learned counsel for the appellant submitted that the learned court below has fallen into a fundamental error in treating P.W.1 as an eyewitness whereas in fact she was never an eye-witness to the occurrence. Secondly, he submitted that the learned trial court has committed serious error of law in coming to a conclusion that the weapon of offence was recovered at the instance of accused particularly when no disclosure statement has been proved. Further, the seizure of weapon of offence under Ext.8 wherein it has been noted that the same was seized pursuant to the information given by the appellant cannot be treated to be a disclosrure statement as the same has not been supported by any of the witnesses to seizure, namely, Iswar Gond and Rajkumar Pradhan. In fact, the prosecution has not examined the above named two witnesses for reasons best known to it. Therefore, according to Mr. Mohanty, there is nothing to show that the weapon of offence was in fact recovered at the instance of the appellant. Relying on the above submissions, he prayed that the impugned judgment be set aside. Lastly, he submitted that after remaining in custody for more than 15 years, he has been prematurely released. 5. Mr. Katkia, learned Addl. Government Advocate, on the other hand, defended the impugned judgment being legally right. However, he admitted that the appellant has already been released as per the order of the Addl. D.G. of Police passed during April, 2018. 6. In order to appreciate the submissions of both the learned counsel, we think it proper to scan the evidence on record. At the outset, it may be noted here that none has disputed about the homicidal nature of death of the decased. P.W.1, who happens to be the wife of the deceased has stated that on the date of occurrence, the deceased came home in an inebriated condition and the appellant gave three blows to him causing bleeding injuries on his head. Though she tried to intervene, the deceased fell down at the spot and died. She told this incident to P.W.4 and some villagers like P.Ws.2,3 and others and the matter was reported to the police. In her cross-examination, she stated that she was cooking at the time of occurrence and admitted that the outside of the house was not visible from inside. She told this incident to P.W.4 and some villagers like P.Ws.2,3 and others and the matter was reported to the police. In her cross-examination, she stated that she was cooking at the time of occurrence and admitted that the outside of the house was not visible from inside. She denied a suggestion that she has not seen the assault on her husband. Though at the first instance, she admitted in the cross-examination that she was not able to see properly due to poor eye sight, however, she denied a suggestion that she was not able to see articles situated at a distance of 50 feet in dark night. She further testified that her husband fell down at a distance of 50 feet from her. In her crossexamination, she has further stated that she cannot say as to who scribed the FIR and what are the contents of FIR. She also testified that FIR was never read over and explained to her and also that she did not go to Police Station to file the report. With regard to eye sight, she denied a suggestion that she was not able to see properly due to poor eye sight. She identified the lathi with which the appellant gave blow to her husband. The same was marked as M.O.I. P.W.2 is a relative of P.W.1 and is a post occurrence witness. Though he says that report was filed at their behest at Police Station and he signed the same, however, in his crossexamination he admits that he does not know about the contents of FIR under Ext.1 which was never read over and explained to him and he signed Ext.1 as per the direction of the police. P.W.3 also happens to be a close relative of P.W.1. He is also a post occurrence witness, who has stated that after hearing about the occurrence, he went to the house of the deceased and found the husband of P.W.1 lying dead. He has acknowledged the presence of P.W.4 when he reached there. He has testified that the cloth of late Ghasiram was stained with blood. More importantly he has deposed that P.W.1 had told him that while she was cooking food, hearing the sound, she came out and found the appellant there and the deceased lying with bleeding injuries. He has acknowledged the presence of P.W.4 when he reached there. He has testified that the cloth of late Ghasiram was stained with blood. More importantly he has deposed that P.W.1 had told him that while she was cooking food, hearing the sound, she came out and found the appellant there and the deceased lying with bleeding injuries. In his cross-examination, he has stated that P.W.1 has poor eye sight and she was not able to see properly and she told him that she did not know who assaulted her husband and that she was inside the house. She further told him that nobody was there when she came out and found her husbabnd lying with injuries. During crossexamination, no suggestion has been given to him that P.W.1 never told him about the things which he has stated in examination-in-chief as being told by P.W.1. P.W.4 is a co-villager, who testifies that P.W.1 told him that the appellant assaulted her husband and went away. He went to the house of Ghasiram in the morning and found him dead with bleeding injuries on his head. In the crossexamination, P.W.4 has stated that the eye-sight of P.W.1 to be good and P.W.1 told him to call her relatives. P.W.6 is the doctor, who conducted the autopsy and found two external injuries and concluded that the cause of death of the deceased was due to head injury and the mode of death was homicidal. He also stated that the injuries suffered by the deceased were possible by stick (M.O.I). In his cross-examination, he has also stated that the injuries on the head of the deceased could be possible by fall from a tree or from a roof of the house. P.W.8 is the scribe of the F.I.R., who testified that on the requests of P.Ws.1,2 and 3, he wrote the report under Ext.1. He also proved his signature under Ext.1. He denied a suggestion that he wrote the report as directed by the police. P.W.8 is the scribe of the F.I.R., who testified that on the requests of P.Ws.1,2 and 3, he wrote the report under Ext.1. He also proved his signature under Ext.1. He denied a suggestion that he wrote the report as directed by the police. P.W.9 is the I.O., who deposed that he arrested the appellant and forwarded him to the court and while in custody the appellant confessed his guilt and stated that he has kept the weapon of offence concealed and that he would give recovery of the same and then he led P.W.9 to his house and gave recovery of lathi from his kitchen room which was accordingly seized vide Ext.8 and M.O.I is the seized lathi. He also seized the wearing apparels of the appellant and the deceased. He also proved the chemical examination report. In his cross-examination, he has stated that the kitchen of the deceased was on an open verendah which was closed from three sides. He also admitted that his investigation did not reveal any enmity between the appellant and the deceased. He also denied a suggestion that the appellant never confessed before him and never led to his house giving recovery of lathi. 7. An analysis of evidence of the prosecution witnesses reveals as follows: Though the evidence of P.W.1 at the first blush gives an impression that she is an eye-witness to the occurrence, however, the fact that she was cooking at the time of occurrence and her admission that outside of the house was not visible from inside and that she was not able to see properly make it clear that she cannot be treated as an eye-witness to the occurrence. With regard to the status of her eye sight, she has blown hot and cold. Such conduct of P.W.1 again lowers her credibility as a witness. Further in her cross-examination, she has stated that she cannot say as to who scribed the FIR and what are the contents of the FIR. She has also stated that it was not read over and explained to her and that she did not go to Police Station to file the report. However, P.W.2 in his testimony has stated that they filed the report at Police Station to which P.W.1 has given her thumb impression and the same was also signed by both P.Ws.2 and 3. However, P.W.2 in his testimony has stated that they filed the report at Police Station to which P.W.1 has given her thumb impression and the same was also signed by both P.Ws.2 and 3. Further, though P.W.2 himself has proved the FIR under Ext.1, but however he has stated that he signed the report under Ext.1 as directed by police. In his cross-examination, he also says that he does not know about contents of Ext.1 and the same was never read over and explained to him. Strangely, P.W.3 maintains total silence on Ext.1. All these show disowning of FIR by P.Ws.1, 2 and 3. The evidence of P.W.3, who happens to be the nephew of P.W.1 shows that P.W.1 came to the spot after hearing the sound and found the deceased lying with bleeding injuries in presence of the appellant. He also has stated that P.W.1 told him that she did not know who has assaulted her husband. He also testified that P.W.1 has a poor eye sight and was not able to see properly. Though P.W.1 has not stated that she told about the incident to P.W.3 like P.W.4, however, during crossexamination, no suggestion has been put to P.W.3 that P.W.1 has never told all the things which he has testified to have been told by P.W.1 in his examination-in-chief. In any case since P.W.3 has stated that P.W.1 has poor eye sight, this creats a doubt as to P.W.1 being an eye-witness to the occurrence. The evidence of P.W.4 to some extent corroborates the evidence of P.W.1 with regard to P.W.1 having told him about the incident. But the version of P.W.4 with regard to eyesight of P.W.1 being good cannot be accepted in preference to version of P.W.3 inasmuch as P.W.3 is a close relative and is supposed to know better about the eye sight of P.W.1 than a co-villagers like P.W.4 particulry when there is nothing in evidence to show that P.W.4 is a close neighbour having intimate contact with the family of P.W.1. Though P.W.9 speaks of confession by the appellant before him while in custody and leading him to recovery of concealed weapon of offence, however, he has not testified that the appellant had confessed before him that he had concealed the weapon of offence in a particular place. Further his testimony is that the appellant gave recovery of lathi from his kitchen room. Further his testimony is that the appellant gave recovery of lathi from his kitchen room. This is not enough to fasten the appellant with criminal liability. As indicated earlier, P.W.9 has not said that the appellant told him about concealment of weapon of offence at a particular place/spot inside the kitchen room. Thus had a search been conducted in the kitchen room, the lathi could have been easily seized. Further, the prosecution has not proved any disclosure statement made by the appellant though with regard to the same, there has been some indications in the seizure list under Ext.8. But even then the two seizure witnesses, namely, Iswar Gond and Rajkumar Pradhan, who have appended their signatures to Ext.8 have also not been examined by the prosecution. In such background, it is difficult to believe that pursuant to a disclosure statement the I.O. recovered the weapon of offence under M.O.I. Further in his crossexamination he has admitted that his investigation did not reveal any enmity between the appellant and deceased. To summarise, for the reasons as indicated earlier, P.W.1 cannot be treated as an eyewitness to the occurrence. The versions of P.Ws.1, 2 and 3 destroy the credibility of report under Ext.1. With regard to the status of eye sight of P.W.1, the same cannot be said to be good in the background the statements made by P.Ws.1 and 3. It is safer to accept the version of P.W.3 on the same, as he happens to be a close relative of P.W.1 rather than the version of P.W.4, who is a co-villager with no proof of having close contact with the family of P.W.1. With regard to the evidence of P.W.9 relating to leading to discovery the same cannot be accepted for reasons indicated earlier. Thus, the findings of the learned trial court that P.W.1 is an eyewitness is clearly on account of wrong appreciation of facts and similarly the acceptance by the learned trial court that M.O.I was recovered pursuant to disclosure statement of appellant cannot be accepted. Only incriminating materials that have been found are the evidence of the doctor, namely, P.W.6 and chemical examination report under Ext.10. Only incriminating materials that have been found are the evidence of the doctor, namely, P.W.6 and chemical examination report under Ext.10. While the doctor speaks about cause of death due to head injury and testifies that such injuries are possible with the help of M.O.I, the chemical report under Ext.10 indicates presence of human blood belonging to Group 'A' on the stick. But as indicated earlier, we are not willing to believe that the lathi was discovered because of the information given by the appellant. In such background, the above two circumstances are not enough to connect the appellant with the crime. 8. In such background, the Jail Criminal Appeal succeeds and is allowed accordingly and it is directed that the appellant be set at liberty forthwith if his incarceration is not required in connection with any other case. L.C.R. be sent back forthwith.