JUDGMENT : A.K. Mishra, J. In this appeal, the judgment dtd.08.07.1998 passed by learned Sessions Judge, Kalahandi - Nuapada at Bhawanipatna in S.C. No.67 of 1996 is assailed by the appellant wherein he has been convicted U/s.302 of the Indian Penal Code (in short the "I.P.C.") and sentenced to undergo imprisonment for life. 2. A synoptic view of the prosecution case reveals that on 21.7.1996 at about 8.30 A.M. accused dealt tangia blows to deceased while returning from paddy field and deceased was done to death by such act. Informant, grandson of deceased, hearing hulla, came out from residence, saw accused and chased him. Accused ran away throwing the Tangia at a distance. Informant with his friend Nepal Sahu went to Korlamunda Out Post and lodged a written report. The A.S.I. of police (P.W.12) made S.D. entry No.296 dtd.21.07.1996 and took up preliminary investigation. He examined informant and other witnesses. Made inquest and sent the dead body for post mortem examination. At 12 A.M. on that day the O.I.C., M. Rampur registered P.S. Case No.90 dtd.21.07.1996 and took up charge of investigation. He arrested the accused on next day and made some seizure. He obtained medical opinion on seized axe and sent the seized articles for chemical examination. After completion of investigation, charge-sheet was submitted. The case was committed to the Court of Session. Accused faced trial for offence U/s.302 I.P.C. 3. Defence plea is denial simplicitor. 4. In proof of its case, prosecution examined 13 witnesses in all. P.W.7, informant is the grandson of the deceased. P.Ws.1 & 2 are F.I.R. named post occurrence witnesses. P.Ws.3, 4, 5 and 6 are co-villagers out of whom P.Ws.3 and 4 are declared hostile. P.Ws.8, 10 and 11 are witnesses to seizure and inquest. P.W.9 is the doctor who conducted post mortem examination. P.W.12 is A.S.I. of Police, Korlamunda Out Post while P.W.13 is the investigating officer. Besides proving M.O.I to M.O.VI prosecution exhibited 20 documents which include F.I.R., seizure lists, inquest report, post mortem examination report and other connected documents of the case. 5. Learned Sessions Judge found that the death of the deceased was homicidal in nature and believing the version of P.W.7, held the accused guilty of the offence U/s.302 I.P.C. and passed sentence as stated above. 6. Mr. 5. Learned Sessions Judge found that the death of the deceased was homicidal in nature and believing the version of P.W.7, held the accused guilty of the offence U/s.302 I.P.C. and passed sentence as stated above. 6. Mr. P. Behera, learned counsel for the appellant advanced the following submissions:- (i) The sole eye witness P.W.7 has been contradicted with his previous statement recorded U/s.161 Cr.P.C. and also with F.I.R. that he had seen accused giving axe blows to the deceased and for such material contradiction, he is not a trustworthy witness. (ii) In absence of eye witnesses, the circumstances considered were either not proved or inconclusive in nature for which learned Lower court has committed an error to draw inference of guilt against accused. (iii) The substantial part of investigation has been done by A.S.I. (P.W.12) who received the F.I.R. at the Out Post but the O.I.C. (P.W.13) having admitted to have received the F.I.R. at spot, the lodging of F.I.R. either at the Out Post or at the spot creates doubt on the prosecution case for which accused should be given benefit of doubt. 7. Learned Addl. Government Advocate Mrs. Patnaik supports the judgment on the grounds stated therein adding that the evidence of P.W.13 that he received the F.I.R. at spot should be appreciated in the backdrop of his coming to spot and taking up charge of investigation from A.S.I. and such defect in investigation is not meant to vitiate the trial. 8. Carefully perused the lower court record bestowing thought over the submissions advanced. 8-A. The death of deceased Jogindra Bihari Prasad was homicidal in nature and it is proved by doctor (P.W.9) who conducted post mortem examination on 21.07.1996 vide Ext.6 and found three external injuries which could be possible by M.O.I (axe). M.O.I, axe was seized at a distance of 200 feet from the spot under Ext.4. The spot is the public road near the house of the deceased. The spot map prepared by P.W.12, A.S.I. is Ext.13. P.W.7, the grandson of the deceased claimed to be an eye witness of the incident. He has testified in his examination-in-chief that while he was studying inside a room of their house, hearing hulla he looked outside and found the accused dealing blows to deceased by means of an axe. He came out, raised hulla and hearing hulla accused started running with the axe. He chased. He has testified in his examination-in-chief that while he was studying inside a room of their house, hearing hulla he looked outside and found the accused dealing blows to deceased by means of an axe. He came out, raised hulla and hearing hulla accused started running with the axe. He chased. Accused threw away the Tangia and ran away. He became nervous and with the help of his friend Nepal Sahu (not examined) he went to Korlamunda Out Post and lodged written report (Ext.1). In cross-examination, defence has brought out material contradiction with his previous statement recorded U/s.161 Cr.P.C. and in the F.I.R. (Ext.1) which are admitted in the following words:- "It is a fact that I did not state in Ext.1 and in my statement before the police that when I came out from the house, I found the accused dealing another blow near the neck of the deceased by means of the axe. It is a fact that I did not state in Ext.1 and in my statement U/s.161 Cr.P.C. before the I.O. that on 21.06.1996 at about 8.30 A.M. I was studying inside the room of our house near the window. It is a fact that I did not state in Ext.1 and in my statement U/s.161 Cr.P.C. that I was sitting near the window and that on hearing hulla I looked outside. It is a fact that I did not state in Ext.1 or in my statement U/s.161 Cr.P.C. that the accused gave blow by means of the sharp side of the axe. It is a fact that I did not state in Ext.1 and in my statement U/s.161 Cr.P.C. that on seeing this, I raised hulla and that on hearing me the accused started running. It is a fact that I did not state in Ext.1 and in my statement U/s.161 Cr.P.C. that on seeing this, I raised hulla and that on hearing me the accused started running. It is a fact that I did not state in my report or before the I.O. that on seeing the blood I became nervous and a friend of mine namely, Nepal Sahu of my village took me to Korlamunda Out Post; and that since I was nervous and was on grief taken to Korlamunda O.P. and that I could not tell anything to the A.S.I. of Police at Korlamunda O.P. for the first time; and that I came out of the O.P. to the verandah and that the A.S.I. told me to give in writing whatever I know regarding the occurrence and that Nepal Sahu gave me pen and paper and that I scribed the Ext.1 in that state of mind." Hon'ble Apex Court, in the decision Tahasildar Singh and Another Vs. The State of Uttar Pradesh, (1959) AIR SC 1012 has settled the manner proving contradiction in the following words:- "xx xx xxx. The procedure prescribed is that, if it is intended to contradict a witness by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The proviso to s.162 of the Code of Criminal Procedure only enables the accused to make use of such statement to contradict a witness in the manner provided by s.145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of s.145 of the Evidence Act. Nor are we impressed by the argument that it would not be possible to invoke the second part of s.145 of the Evidence Act without putting relevant questions under the first part thereof. The difficulty is more imaginary than real. The second part of s.145 of the Evidence Act clearly indicates the simple procedure to be followed. Nor are we impressed by the argument that it would not be possible to invoke the second part of s.145 of the Evidence Act without putting relevant questions under the first part thereof. The difficulty is more imaginary than real. The second part of s.145 of the Evidence Act clearly indicates the simple procedure to be followed. To illustrate: A says in the witness-box that B stabbed C; before the police he had stated that D stabbed C. His attention can be drawn to that part of the statement made before the police which contradicts his statement in the witness-box. If he admits his previous statement, no further proof is necessary; if he does not admit, the practice generally followed is to admit it subject to proof by the police officer." This witness (P.W.7) has not only lodged written report (Ext.1) at the Out Post but was also examined twice on that day, one by the A.S.I. (P.W.12) and another by O.I.C., M. Rampur P.S. (P.W.13). Nepal Sahu is not examined in this case. His (P.W.7) testimony reveals that he came out being accompanied by his mother and grandmother (cross-examination) but none of them is examined to corroborate it. P.W.3 has stated that after hearing hulla informant and his grandmother came. If that is so, the contradiction brought out strikes at the root of P.W.7's reliability. The evidence of P.W.7 being chameleonic, no reliance can be placed upon him. It suffers from inherent repugnancy. Learned trial court has rightly appreciated his evidence to record a finding that "on perusal of the evidence of P.W.7 with reference to the spot map (Ext.13/2, it appears that it was not possible on the part of P.W.7 to witness the occurrence. But there is no dispute in the instant case that P.W.7 came out of the room on hearing the hulla raised by the deceased." After recording such finding, the learned Sessions Judge is found to have committed error in concluding that "by the yardstick of probabilities, a prudent man has to come to a conclusion that the P.W.7 had seen the accused dealing of some blows by means of an axe on the person of the deceased and ran away with the axe." There is no evidence that the accused was engaged for a considerable time at spot to give blows to cause only three injuries. There is also no evidence that accused created panic raising hulla so that others' attention could have been drawn. Instead, what is evident is that the act of assault was done stealthily. In our considered opinion, such probability that P.W.7 had seen the assault is a conjecture to which no approbation can be given. P.W.7 is a wholly unreliable witness. 9. Once the P.W.7 is found wholly unreliable, the case descends to circumstantial evidence. One is motive. The other is the presence of accused at spot with axe. 9-A. On the part of motive, prosecution relies upon the evidence of P.W.5 and P.W.6. P.W.5, a co-villager has stated that sometimes back the accused was giving threatening openly that he would kill the deceased Bihari Budha, Karuna Bagh and Ghanashyam Bibhar. But in cross-examination he was contradicted with his earlier statement and it is duly proved. He has also specifically admitted that he had not disclosed this fact before anybody as entire villagers knew that. P.W.6, another co-villager has stated that accused had threatened 2 to 3 persons of their village to assault and to kill them. He is declared hostile. Both the witnesses, i.e. P.Ws.5 and 6 have not stated as to why the accused was giving threatening. The other two persons, namely, Karunakar Bagh and Ghanashyam Bibhar have not come forward to confirm that they were threatened at any point of time by the accused. When the cause of threatening is not disclosed, the bald words are not sufficient to attribute the motive whereby the thought of person was stimulated to commit overt act. Though prosecution is not obliged to prove the motive in a criminal trial, the Court is to test the same if it is advanced. On scrutiny of evidence of P.Ws.5 and 6, the prosecution is found to have not succeeded in establishing the motive behind the murder by the accused. 9-B. The other circumstance advanced by prosecution is that accused was found running away from the spot with the axe. It may be stated here that the axe (Tangia) was seized under Ext.4 on the public road near the land of Laxman Sahu on the date of occurrence at 10.15 A.M. We have already held that P.W.7 is not a wholly reliable witness. On this aspect, the evidence of P.Ws.1 and 2 are to be carefully scrutinized. P.W.1 is the maidservant of the deceased. On this aspect, the evidence of P.Ws.1 and 2 are to be carefully scrutinized. P.W.1 is the maidservant of the deceased. She has stated that being sick while she was bedridden, heard hulla and came out and found accused running away. In cross-examination this witness has stated that accused was going towards his house on that day and she could not say from which place the accused was going. She had seen the accused going towards his house in between 6 to 7 A.M. Though time is not the essence of this witness's human strata, it is clear that she had not seen the accused with any axe and she saw accused much prior to the incident. P.W.2 has testified that while she was returning from her paddy field found some persons raising hulla. She ran towards her house and found accused running towards the cultivable land with an axe in his hand and then saw the deceased lying with cut injury. This part of evidence is duly contradicted with her earlier statement recorded U/s.161 Cr.P.C. as material omission. She has also stated to have not disclosed the said fact before some villagers. The essence of her evidence is prevaricating and thereby not trustworthy. It is pertinent to note that both the P.Ws.1 and 2 are named in the F.I.R. lodged by P.W.7. P.W.7 is already found to be a wholly unreliable witness. Both P.Ws.1 and 2 are duly contradicted on the material points. On careful scrutiny, their evidence does not inspire confidence. P.W.3 has stated that when she reached the spot and found deceased with cut injury but did not see the accused. She has categorically admitted in her cross-examination that by then the accused Jagannath was reading in Risida College and when people raised hulla the informant and his grandmother came out. P.W.4 is declared hostile and nothing material is elicited incriminating the accused in any circumstances surrounding the death of deceased. Rather he has stated that by the time of occurrence the accused was studying in Risida College and was earning his livelihood by doing tuition. The testimonies of P.Ws.1, 2, 3 and 4 with regard to circumstances that accused was running away with axe, are found inconsistent and inherently untrustworthy. Because of this, the circumstance that accused was seen near the spot after the occurrence with axe is not proved conclusively. 10. The testimonies of P.Ws.1, 2, 3 and 4 with regard to circumstances that accused was running away with axe, are found inconsistent and inherently untrustworthy. Because of this, the circumstance that accused was seen near the spot after the occurrence with axe is not proved conclusively. 10. P.Ws.8, 10 and 11 are witnesses to inquest and seizure. When the weapon of offence "Tangia" (M.O.I) is not seized from the accused and the homicidal death of deceased is not disputed, their testimonies do not advance any circumstance unerringly point at the guilt of the accused. P.W.13 has deposed that he arrested the accused at Bhawanipatna on 22.07.1996 at 2 P.M. and forwarded him to court on the next day at 1 P.M. The arrest was made in the office of the Superintendent of Police, Kalahandi. He has admitted to have not seized the wearing apparels of the accused soon after his arrest and those wearing apparels M.Os.VI and VII were sent for chemical examination on 17.09.1996 and till then those were in his custody. This shows that for about more than one and half months the wearing apparels were in the custody of P.W.13 and the same were not seized soon after the arrest of the accused. No blood group matching has been done to compare the blood group of accused with those found in his wearing apparel, i.e. lungi. The absence of blood group matching leaves enough room for suspicion. The blood stain found on the lungi of accused may be of his own blood. A reasonable doubt cannot be the basis to prove a circumstance conclusively. 11. Given the gamut of evidence on record, we are constrained to record that the learned lower court has committed error in accepting the evidence of P.W.7 whose evidence is wholly unreliable. The circumstances advanced are found fractured enough to raise any hypothesis conclusively. Resultant thereupon, the conviction and sentence passed against the accused are to be set aside as sufficient ground is found for interference in this appeal. In the result, the appeal is allowed. The conviction of the accused - appellant U/s.302 I.P.C. and sentence of imprisonment for life are hereby set aside. He be set at liberty. The appellant is on bail vide order of this court dtd.05.07.2007 passed in Misc. Case No.41 of 2007. His bail bond be cancelled. The CRA is accordingly allowed. L.C.Rs. be returned immediately. The conviction of the accused - appellant U/s.302 I.P.C. and sentence of imprisonment for life are hereby set aside. He be set at liberty. The appellant is on bail vide order of this court dtd.05.07.2007 passed in Misc. Case No.41 of 2007. His bail bond be cancelled. The CRA is accordingly allowed. L.C.Rs. be returned immediately. I agree. S.K. Mishra, J.