Vishnudeo Narayan, J.
1. This appeal has been preferred by the sole appellant named above against the impugned judgment dated 21.1.1986 passed in Sessions Case No. 199 of 1982/92 of 1982 by Shri Md. Quamrul Hoda, 2nd Additional Sessions Judge, Dumka whereby and whereunder the appellant was found guilty for the offence punishable under Sections 302 and 201 of the Indian Penal Code and he was convicted and sentenced to undergo R.I. for life under Section 302 of the Indian Penal Code but no separate sentence has been awarded to him under Section 201 of the Indian Penal Code.
2. The prosecution case has arisen on the basis of the FIR (Ext. 4) of PW 10 Dharma Paharia, the informant and the son of Deva Paharia, the deceased of this case lodged before Sundar Pahari PS on 16.1.1982 at 14.00 hours regarding the occurrence which is said to have taken place in village Bar Kairo Jori PS Sundar Pahari, District Santhal Paragana in the night between 15th and 16th January, 1982 i.e. at about 12 O'clock in the night. The FIR has been received in the Court of Additional CJM, Godda on 18.1.1982.
3. The prosecution case, in brief, is that PW 11 Kumri Paharin, the wife of the deceased had gone towards village Bara Kairo Jori to pluck leafy vegetable in the morning of 16.1.1982 and she came back from there weeping and she told the informant besides other that the dead body of her husband Deva Paharia is lying in the field in village Bara Kairo Jori. It is alleged that on this information the informant along with others went there and found the dead body of the deceased and also a trail of blood going from that place to the house of the appellant in village Bara Kairo Jori and this led to the suspicion regarding commission of the murder of the deceased by the appellant and the appellant was called there and it was inquired from him in presence of several persons of the village about the incident and the appellant confessed before them that the deceased had come to his house at about 11 O'clock in the night and an altercation took place between him and the deceased and in course of altercation he gave three or four blows from wooden log causing bleeding injury on the person of the deceased who fell down and became unconscious and he died there as a result of the injury. It is further alleged that the appellant further confessed that he with the help of co-accused Saful Hembram brought the dead body from his house and threw the same in the field north of the village and, therefore, he has washed his house with cow dung. It is also alleged that the co-accused Saful Hembram had also confessed his guilt in the commission of the murder of the deceased.
4. The appellant has pleaded not guilty of the charges leveled against him and he claims himself to be innocent and to have committed no offence and that he has been falsely implicated in this case at the instance of PW 2, Rup Narain Paharia due to land dispute and this appellant in statement under Section 313, Cr PC has retracted from his confession.
5. The prosecution has in all examined 12 witnesses in this case. It is essential to mention at the very outset that there is no ocular witness of the occurrence. PW 10 Dharma paharia, the informant and her mother PW 11 Kumri Paharin are not the ocular witness of the occurrence, PW 2, Rup Narain Paharia. PW 5, Dule Paharia, PW 8 Chotka Besra besides PW 10 and PW 11, though not the eye-witness in this case have deposed regarding the trail of blood found from the place where the dead body was found up to the house of the appellant as well as the extra judicial confession made by the appellant. PW 7, Charan Hembram has also deposed regarding the extra-judicial confession made by the appellant. PW 1, Dr. Vijay Kumar Bhagat has conducted the post-mortem examination on the dead body of the deceased of this case and the post-mortem report per his pen in respect thereof is Ext. 1. PW 12, Satya Narain Paswan is the I.O. of this case. PW 4, PW 6 and PW 9 have been tendered in this case by the prosecution. PW 3 has turned hostile and he does not support the prosecution case. Ext. 2 is the seizure list regarding the recovery and seizure of blood stained bamboo-lathi and earth mixed with cow dung from the house of the appellant and Ext. 3 is the statement under Section 164 of the Cr PC of the appellant recorded by a Judicial Magistrate. No oral and documentary evidence has been brought on record on behalf of the defence.
6. In view of the evidence oral and documentary on the record the learned court below has found the appellant guilty and has convicted him and sentenced him as stated above.
7. Assailing the impugned judgment it has been submitted by the learned counsel for the appellant that the impugned judgment is replete with legal infirmities and there is no iota of legal evidence at all to prove the prosecution case beyond all reasonable doubts and there is no ocular witness of the occurrence and the circumstances emerging on the face of the record do not unerringly lead to the hypothesis of the guilt of the appellant regarding commission of the murder of the deceased by the appellant and the judicial confession (Ext. 3) is not at all admissible in evidence due to the non-examination of the Judicial Magistrate who has recorded it. It has also been submitted that the extra judicial confession as deposed by PWs 2, 5, 7 and 8 besides the informant and his mother suffers with legal infirmities and the same is fit to be brushed aside. It has also been submitted that the alleged trail of blood from the place where the dead body was found to the house of the appellant cannot be said to be conclusive to fasten the guilt of the appellant as the earth containing the trail of blood has neither been seized by the I.O. nor sent to the Forensic Laboratory for chemical examination and furthermore the alleged blood stained bamboo-lathi recovered from the house of the appellant has also not been sent to the Serologist and in this view of the matter there is no legal evidence at all to prove the prosecution case beyond all reasonable doubts. Lastly it has been submitted that there is no iota of evidence on the record to show the motive for the commission of the murder of the deceased by this appellant. Lastly it has been submitted that even the evidence of PW 1, the doctor is not at all in conformity with the manner of occurrence as per the extra judicial confession of this appellant and in view of the legal infirmities, the charges levelled against the appellant does not stand proved at all.
8. The learned APP has submitted that though there is no ocular witness of the occurrence but the extra judicial confession read with the judicial confession of this appellant and the objective finding of the I.O. besides the evidence of the witnesses of this case regarding the trail of blood from the place where the dead body was found to the house of the appellant clearly establishes the fact that the appellant has committed the murder of the deceased in his house and has thrown his dead body in the field north of the village with the help of co-accused Sufal Hembram and the circumstances emanating on the record as per the evidence of the prosecution witnesses clearly establishes the commission of the murder of the deceased by this appellant and as such there is no Infirmity at all in the impugned judgment.
9. It will admit of no doubt that the dead body of Deva Paharia, the father of theinformant was found in the field of Rawan Hansda, north of village Bara Kairo Jori by PW 11, Kumri Paharin in the morning of 16.1.1982 when she had gone to pluck leafy vegetable and she came from there to her house and reported the matter to her son, the informant and others. Thereafter, the informant in the company of several other persons of the village had gone there. There is also evidence on the record that there was trail of blood from the place where the dead body was found to the house of the appellant and the co-accused. It is pertinent to mention here that the appellant was originally the resident of village Chota Kairo Jori and, thereafter, he had shifted in the house of co-accused Sufal Hembram in village Bara Kairo Jori out of his own sweet will. PW 2, PW 5 and PW 8 besides PW 11 and PW 10, the informant in their evidence on oath have testified the fact of the existence of the trail of blood from the field of Rawan Hansda where the dead body of the deceased was found to the house of the appellant. PW 12 in his objective finding has deposed to have found the dead body of the deceased in the field of Rawan Hansda where he has prepared the inquest report. In para 6 of his evidence he has deposed to have found the trail of blood from that place up to the house of the appellant. He has also deposed that when he reached in the house of the appellant he found his house washed by cow-dung. He has very specifically deposed that the trail of blood mark was up to the place which was washed by cow-dung. His evidence is further to the effect that he has recovered a bamboo-lathi having blood stains thereon and also seized the earth besmeared with cow-dung from the house of the appellant and prepared the seizure list which is Ext. 2 in this case. It is pertinent to mention at this stage that the I.O. has not seized the blood stains earth which had formed a trail from the place where the dead body was found up to the house of the appellant. It is equally relevant to mention here that the bamboo-lathi having the stains of blood and the earth mixed with cow-dung seized from the house of the appellant have been sent for chemical examination to the Forensic Science Laboratory but the reasons best known to the prosecution, the report of the Serologist have not been brought on the record. Therefore, the oral testimony of PW 11, PW 10, PW 2, PW 5 and PW 8 and the objective finding of PW 12 regarding the trail of blood from the place where the dead body was found to the house of the appellant is not legally proved in the absence of Serologist report in respect thereof. It cannot be definitely said in the absence of the Serologist report that it was a trail of blood from the place where the dead body was found up to the house of the appellant. Furthermore, it can also not be definitely said that the bamboo-lathi said to have contained thereon blood stains is the weapon of assault for commission of the murder of the deceased. Therefore, this circumstance does not lead to the inference of the fact that the deceased has been done to death in the house of the appellant and from there the dead body was brought and thrown in the field of Rawan Hansda.
10. There is no ocular witness in this case but before I dilate regarding extra Judicial confession said to have been made by this appellant, before PWs 11, 10, 2, 5, 7 and 8 and the judicial confession as per Ext. 3 said to have been recorded by a Judicial Magistrate, 1st Class, Godda on 19.1.1982, it is essential to refer the injuries found on the person of the deceased as per post-mortem examination report read with the inquest report. PW 12, the I.O. has deposed to have prepared the inquest report in presence of Danial Paharia and Bamra Paharia at the place where the dead body was found. It was witnessed by the aforesaid persons. The said inquest report is not on the record. However, the post-mortem of the dead body was conducted by PW 1, Dr. Vijay Kumar Bhagat in C.A.S. Godda Hospital and he has deposed to have found the following ante-mortem injuries on the dead body of the deceased, Deva Paharia :
(1) Bruise 3' x 2' over the left knee.
(2) Bruise 3' x 2' over the right knee.
(3) Multiple Bruises 5 ' x 1/4' vertical on the anterior aspect of left leg.
(4) Lacerated wound 1/2' x 1/2' over the left eye brow lateral side with swelling of left upper eye lid with fracture of underlying bone.
(5) Bruise 3' x 2' obliquely on the left frontal part of head above eye-brow.
(6) Lacerated wound 2-1/2' x 1' upto bone deep vertical on the right temporal region of scalp with fracture of the underlying bone.
(7) Lacerated wound 3' x 1/2' upto bone deep transversely on the occipital region right side with fracture of the underlying bone.
(8) Lacerated wound 1/2' x 1/2' upto bone deep on the left parietal eminence.
(9) Lacerated wound 2' x 1/2' upto bone deep transversely on the left occipital region.
The medical witness has further deposed that on dissection he has found fracture of bone under injury Nos. 4, 6. 7, 8 and 9 and there was also a big heamatoma and injury Nos. 6, 7, 8 and 9 were grievous in nature. The medical witness has also deposed that the injury at serial Nos. 4, 6, 7, 8 and 9 were sufficient in the ordinary course of nature to cause death of the deceased. He has also deposed that all the injuries aforesaid have been caused by hard and blunt substance such as 'Chaila' (wooden log) and time elapsed since death is within 48 hours. In the back drop of the injuries found on the dead body of the deceased let us now scrutinize the evidence regarding extra judicial confession alleged to have been made by this appellant before PWs 11, 10, 2, 5, 7 and 8. It has been averred in the FIR of PW 10, the informant, that due to the trail of blood from the place where the dead body was found to the house of the appellant there was suspicion regarding the appellant Dharma Paharia having committed the murder of the deceased and he was called before PW 2, Rup Narain Paharia. PW 11, Kumri Paharin and several other persons of the village besides this informant and before them he had made a confession that he has committed the murder of the deceased and also tendered apology for that and he further told that the deceased had come to his house at about between 10.00 or 11.00 O'clock in the night and the deceased told him as to why he is living in the village of Santhals which led to altercation between him and the deceased and at this he (the appellant) gave three or four blows by wooden log on the deceased causing bleeding injury and he fell down and became unconscious and died, thereafter. It is also averred in the FIR that, thereafter, he (the appellant) along with the co-accused Sufal Hembram carried the dead body of the deceased and threw the body in the field north of the village and, thereafter, he has washed his house by cow-dung. He has also made confession that the deceased was an exorcist and he has caused the death of his children. There is also an averment in the FIR that the co-accused Sufal Hembram has also confessed his guilty corroborating the confessional statement made by this appellant. PW 10, the informant in para 2 of his evidence has deposed that following the trail of blood aforesaid, he in the company of the co-villagers went to the house of the appellant and made inquires from the appellant and the appellant confessed before him in presence of the villagers assembled there that he has committed the murder of the deceased. He has further deposed that the deceased had told him as to why he is living in the village of the Santhals deserting his own house and at this he has stated nothing. PW 10 has also deposed that the appellant has not told him as to why and in what manner he has committed the murder of the deceased. In para 5 of his evidence he has deposed that the appellant has also made confession regarding throwing of the dead body in the field and washing his house with cow-dung before the arrival of the police at the place of occurrence as well as before the informant had gone to the police station. In para 6 of his evidence he has deposed that the appellant has stated before him that he has assaulted on the head of the deceased by wooden log. PW 11, the mother of the informant has deposed to have gone to the house of the appellant along with others and the appellant was caught there and the appellant has confessed before her and the other persons assembled there that he has committed the murder of the deceased by assaulting him by wood in the evening and he along with co-accused Sufal Hembram had thrown the dead body in the field. It is relevant to mention here that there is material inconsistencies in the evidence of PWs 10 and 11 regarding the time of assault on the deceased as stated by the appellant in his confessional statement as well as averred in the FIR (Ext. 4) PW 8 in para 2 has deposed that Pradhan of the village had called the appellant in presence of Mahadeo Hembram, Yadu Hembram and other persons of the village and inquired from him and the appellant confessed before him that he has committed the murder of the deceased because of the fact that the deceased was an exorcist and he has caused the death of his two or three children. He has also deposed that the appellant had stated before them that he has assaulted the deceased with wooden log (Chaila) and he alone has thrown the dead body of the deceased north of the village. The evidence of PW 8 regarding the extra judicial confession made by the appellant is inconsistent regarding throwing of the dead body in the north of the village by him along with the co-accused as deposed by PWs 10 and 11, PWs 2, 5 and 7 has deposed in their evidence on oath that the appellant has made extra judicial confession before them in presence of the police. Therefore, the evidence of PWs 2, 5 and 7 has lost its relevancy regarding the extra judicial confession alleged to have been rhade by the appellant in the facts and circumstances of this case and the evidence of PWs 2, 5 and 7 is not at all admissible in respect thereof. Therefore, there remains the evidence of PWs 10, 11 and 8 on the record regarding the extra judicial confession. The weapon of assault is bamboo-lathi as per seizure list (Ext. 2). 'Chaila' (wooden log) has not been recovered by the police in course of investigation. A bamboo-lathi can never be a 'Chaila' (wooden log) as weapon of assault. In view of the evidence of PWs 10, 11 and 8 three or four blows from wooden log (Chaila) has been made on the person of the deceased.
Similar is the evidence of PWs 10, 11 and 8 in their evidence on oath in respect thereof. The medical witness has found nine ante-mortem injuries on the person of the deceased. Therefore, the confessional statement of the appellant as deposed by PW 10, PW 11 and PW 8 is at variance with and also in conflict with the manner of the evidence on the record as deposed by PW 1 regarding the existence of injuries on the person of the deceased. In view of the inherent inconsistencies and material contradictions, the evidence of PWs 10, 11 and 8 regarding the extra judicial confessions as deposed by them as well as averred in the FIR does not appear to be reliable and worthy of credit. Furthermore it cannot be said that the extra judicial confession made by the appellant is voluntary out of his free will and without any coercion or pressure. There is also no legal evidence of any independent, natural and reliable witness to corroborate the extra judicial confession alleged to have been made by the appellant. The uncorroborated extra judicial confession of the appellant is itself not sufficient to justify a conviction as a rule of caution. There must be some material corroboration to an extra judicial confession especially in a case of murder. Here in this case, as per the evidence on the record, a large number of persons had apprehended the appellant and, thereafter, he has made the said confession regarding the commission of the murder of the deceased. Therefore, the alleged confession can never be said to be voluntary as well as true. For the purpose of establishing the truth of the confessional statement it has to be viewed and examined and compared with the rest of the prosecution evidence and the probability of the case. It is no doubt a matter of regret that a cold blooded murder should go unpunished. There may also be an element of truth in the prosecution story against the appellant but considered as a whole the prosecution story may be true but between may be true and must be true there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before the appellant can be convicted. Ext. 4 is the confessional statement of the appellant recorded by the Judicial Magistrate. Unfortunately and for the reasons best known to the prosecution, the said Judicial Magistrate who has recorded the confessional statement as per Ext. 4 has not taken oath in this case for the prosecution. In absence of the evidence of the said Judicial Ext. 4 is not legally admissible in the evidence and can never be used against the appellant in view of the fact that the appellant stands debarred of the opportunity of eliciting facts showing his innocence in the cross-examination of the said Judicial Magistrate. Therefore, the extra Judicial confession referred to above as well as the judicial confession as per Ext. 4 cannot form the basis for the conviction of the appellant in the facts and circumstances of this case and they cannot take the shape of legal evidence against the appellant in view of the legal infirmities surrounding them. It is equally relevant to mention here that the appellant in his statement under Section 313 of the Code of Criminal Procedure has retracted from his confession. The learned Court below has erred in finding the appellant guilt on the basis of the confessional statement of the appellant referred to above which was retracted by him. It is relevant to mention here that the retracted confession of the appellant is not only uncorroborated in material particulars but is equally devoid of truth in many substantial particulars in view of the glaring contradictions and inconsistencies in the evidence of PWs 10, 11 and 8 and in this view of the matter the finding of guilt of the appellant solely based on the retracted confession of the appellant is opposed to law. Therefore, the circumstances emanating as per evidence on the record i.e. trail of blood and the extra judicial confession as well as judicial confession (Ext. 4) do not unerringly and conclusively lead to the guilt of the appellant for the commission of the murder of the deceased. It is well settled that when a case rests on circumstantial evidence, such evidence must satisfy the circumstance from which an inference of guilt is sought to be drawn must be cogently and firmly established and the circumstances must be of a definite tendency unerringly pointing towards the guilt of the appellant and all the circumstances taking cumulatively should form a chain so complete that there is no scope from the conclusion that within all human probability the crime has been committed by the appellant and non-else.
12. In the facts and circumstances of this case the evidence of the prosecution is replete with inherent legal infirmities and the circumstances appearing as per evidence on the record does not conclusively lead to the hypothesis of the guilt of the appellant. The learned Court below did not consider meticulously the evidence on the record in proper perspective and has erred in coming to the finding of the guilt of the appellant. Therefore, the impugned judgment cannot be sustained.
13. There is merit in this appeal and it succeeds. The appeal is hereby allowed. The appellant is not found guilty of the charges levelled against him and he is, accordingly, acquitted. Let he be set free forthwith if not wanted in any other case.