S. Panda, J.
1. Heard argument from both the parties, hearing is concluded and the judgment is as follows.
2. This appeal is directed against the judgment and order of conviction passed by learned Addl. Sessions Judge, Angul in Sessions Trial No. 29-A/1996/28 of 1997, convicting the appellant for the offence under Section 302, I.P.C.
3. Briefly, the facts, as disclosed by the prosecution, are that the incident took place on 30th October, 1995 inside a forest. The deceased Sambari Biswal, aged about 55 years, had gone to the forest to collect firewood. As the deceased did not return by 3.00 p.m., the informant and others searched for her and found her dead body at about 4.30 p.m., lying near a bush having injuries on her head and neck. On the same day the appellant had also gone to the forest to bring firewood. On being asked by the villagers, appellant confessed that he killed the deceased by means of a 'Tangia'. Prior to the incident, appellant had also tried to murder the deceased, as the deceased, quarrelled with him because the appellant took away the second daughter of the deceased. The incident was reported to the Police by P.W. 3. Ext.2 is the F.I.R. The police took up investigation and after completion of investigation, the appellant was put to trial.
4. The plea of the appellant is total denial.
5. Before the trial Court, prosecution produced fifteen witnesses in support of its case, but there was no direct evidence or eye-witness to support the charge of murder. Entire case of the prosecution is founded on circumstantial evidence.
6. Trial Court convicted the appellant on the circumstances, i.e., the accused had the motive, he attempted to commit murder of the deceased earlier, the accused and deceased went to forest with axe, the accused gave recovery of the weapon of offence and the extra judicial confession made by him taken together prove that the accused committed the murder.
7. A fact or circumstance can be proved by direct or circumstantial evidence. Such evidence must be clear and clinching. In case of circumstantial evidence laid by the prosecution to prove a crime, each of the circumstances should contribute to the chain of circumstances so as to complete the chain. In the above context, the first circumstance, which the prosecution was required to prove, is regarding homicidal death. Learned Sessions Judge held that:
6. P.W. 15, the doctor deposed that he held post mortem over the dead body of Sambari Biswal and found five lacerated injury on the head and the frontal bone and left parietal bone were found fractured. The doctor opined that all the injuries are ante-mortem in nature caused by axe and death was due to haemorrhage, shock and coma. This evidence of P.W. 15 remains unshaken which proves beyond doubt that death of Sambari is homicidal one.
8. On perusal of the evidence of P.W. 15, we notice that he found as many as five external injuries on the body of the deceased. Such injuries were:
(1) Lacerated wound triangular in shape of the size 1 1/2 x 1/2 x bone deep on the left forehead above the left eye-brow;
(2) Lacerated wound of the size 3/4' x 1/2' x bone deep on the left frontal region of the skull one inch above the heir line;
(3) Lacerated wound of the size 2' x 3/4' x bone deep on the left frontal region of the skull above injury No. (2);
(4) Lacerated wound of the size 1' x 1/2' x bone deep on the left parietal region of the skull above the level of left ear;
(5) Lacerated wound of the size 2' x x bone deep on the right frontal region of the skull;
On dissection he found the left frontal bone and left parietal bone under injury Nos. (3) and (4) were fractured and the membranes of the brain and brain matter of left frontal and parietal lobes were lacerated an contused;
According to P.W. 15, all those injuries were ante-mortem in nature and the death was due to haemorrhage, shock and coma. In the examination-in-chief, P.W. 15 opined that the injuries were sufficient to cause death in ordinary course of nature and that the death was homicidal. The said witness further stated that on 27.12.1995, on police requisition, he examined a 'Tangia' (axe) - M.O.-I and opined that injuries in the post-mortem report - Ext.15 may be caused by the blunt side of that axe. In the cross-examination, P.W. 15 stated that, 'if one falls repeatedly On stone, these injuries can be possible, while descending from hill. The injury caused by the blunt (side) of the axe will cause larger injury than the base. 'Tangi' and 'Tangia' are two different weapons. I have not noted the cause of death. The death may be accidental.
(Underlined by us to put emphasis).
9. While recording the finding of homicidal death, the trial Court did not take note of the above quoted evidence of P.W. 15, which was stated by him in course of the cross-examination. In other words, the injury which was sustained by the deceased, according to P.W. 15, are possible on dealing blow by the blunt side of the axe or due to repeated fall while descending from a hill. That evidence, therefore, does not clearly and clinchingly prove that deceased suffered homicidal death. To ascertain about the manner in which the deceased suffered the aforesaid injuries, the trial Court had no option but to refer to the other circumstantial evidence to find corroboration to the theory of homicidal death, as projected by the prosecution. The trial Court failed to do so. Be that as it may, this Court can also peruse the evidence and arrive at a just conclusion, if possible, on the basis of evidence on record relating to the homicidal death of the deceased.
10. For the aforesaid purpose, the only piece of evidence, which can be looked for corroboration, is extra judicial confession, in as much as the evidence under Section 27 and the statements therein by the accused cannot be read as confessional evidence about the manner in which the crime was committed. In that respect the law is well settled that a confessional statement made by an accused while giving discovery of the incriminating materials for seizure under Section 27, such confessional statement cannot be read as evidence save and except the statement which relates to giving discovery of the incriminating materials.
It is also the trite law that a confession, whether or not extra judicial, must be voluntary. In that respect P.W. 1 stated that the accused confessed his guilt before the villagers in presence of police. In the cross-examination he stated that when police assaulted the accused that he confessed his guilt. P.W. 2 stated at the first instance that on being asked by the villagers, accused declined to have any knowledge about the occurrence, but when the villagers interrogated in presence of the police that the accused confessed his guilt. P.W. 3 stated that he heard from the villagers that accused confessed the guilty. P.W. 4, the wife of the accused, stated that she saw the accused sitting in the shop of one Suresh and on being asked by one Hadibanu (it may be Hadibandhu) and others that accused told that he had killed the deceased. Such Hadibarju/Hadibandhu was not examined as a witness for the prosecution; P.W. 5 stated in his evidence that he heard from the villagers that accused confessed his guilt. P.W. 10 stated in his examination-in-chief that while sitting in a shop, being questioned by P.W. 10 and others, accused told them that he killed the deceased by 'a 'Tangia'. In the cross-examination he, however, stated that accused denied the allegation and when police threatened him that he confessed his guilt. P.W. 12 stated that when accused was brought to the 'Kotha Ghara' and was questioned that he confessed. Except P.W. 4, all the other witnesses are co-villagers of the deceased. Their statement read together goes to indicate that there was no voluntariness in making a confessional statement by the accused. Above all, it is clear from their evidence that in presence of the police, such confessional statement was made. The provision in Sections 25 and 26 of the Indian Evidence Act makes such evidence inadmissible. Under such circumstance this link evidence adduced by the prosecution is not available to the prosecution in support of its contention that death of the deceased was due to the injuries by the accused.
11. The other link evidence would have been finding of blood on the wearing apparels of the accused or the axe seized from him besides from his nail clippings collected in course of the investigation. Admittedly the axe marked 'C was seized from the spot, whereas the axe of the accused seized under Section 27 of the Evidence Act was marked as 'G'. That is clear from the forwarding letter to the State Forensic Science and Laboratory, marked Ext. 11. It reveals from the report of the S.F.S.L Ext. 13 that the blood-stained earth and axe found from the spot were containing human blood group 'AB' but no blood group was detected from any of the articles seized from the accused or seized at his instance and that includes his nail clippings. Under such circumstance, connection of the accused with the death of the deceased to make a homicidal death is lacking.
12. On the face of evidence of P.W. 15 that injuries found on the dead body of the deceased are possible due to repeated fall while descending from the hill, his opinion that such injuries are also possible by blunt side of the axe (M.O.-I) is of no importance. If the Doctor had opined that for any peculiar circumstance existing on the dead body of the deceased the injuries could have been possible only by the blunt side of the axe, then the situation would have been different. The evidence relating to giving discovery of the axe under Section 27 of the Evidence Act, therefore, loses its importance. Under such circumstance, it is appropriate to record a finding that prosecution has not been able to prove that the deceased suffered a homicidal death.
13. As it appears, the entire suspicion was diverted towards the accused because of his past conduct. It appears from the evidence of P.W. 4 and other witnesses that the accused married P.W. 4 and stayed in his in-law's house. He developed intimacy with his wife's younger sister and when the family members and the villagers protested that he left the village with that sister-in-law and resided in another village as husband and wife. About six months before the date of occurrence, they again returned to the occurrence village and stayed together with P.W. 4 and the other in-laws. Therefore, relationship of the accused with his sister-in-law, under the given facts and circumstances, cannot be constituted as a motive to commit the murder of his mother-in-law, when there is nothing on record that the mother-in-law was interfering with the affairs of the accused or that she was instrumental in bringing miseries to him on account of his illicit relationship with his sister-in-law. Prosecution tried to bring out a circumstance of attempt to commit murder by the accused on a previous instance. In that respect P.W. 4 stated that accused had brought pesticides to commit murder. In the cross-examination she stated that when she asked the accused as to why he had brought the pesticides, then the latter replied that he wanted to commit suicide. Whether or not that explanation is sufficient to believe the accused in that manner, but there is no further evidence available on record that accused made any attempt to administer that pesticides on any of the inmates in the family of his in-laws. Therefore, the motive part, which introduced by the prosecution, was not clearly proved so as to make out a circumstance against the accused. The trial Court did not analyse the evidence in the above-indicated manner nor it referred to the evidence of the witnesses, which they made in their cross-examination and did not consider the consequences thereof and, therefore, it committed the error of recording an order of conviction against the accused. The circumstances, which are stated by the prosecution but not substantially proved, indeed cast doubt to attribute the murder of the deceased on the accused. Suspicion, however strong, cannot be regarded as a proof of circumstance nor such suspicion can be regarded as substantive evidence. Therefore, in this case, in absence of any direct evidence, the circumstantial evidence does not prove that the deceased suffered a homicidal death and the accused is the author of that crime.
14. Before parting with the case, it is appropriate to mention that accused had also visited the jungle on the self-same time and in that respect P.W. 8 has stated that he had hired the service of the accused to bring thorn-bushes for him from the jungle. Similarly, P.W. 7 has stated that on that date he had requested the accused to cut and bring wood for him from the jungle. Therefore, departure of the accused to the jungle on the relevant date and time had a reason. Under such circumstance even the conduct of the accused in going to the jungle cannot be attributed as a circumstance so as to connect him with the death of the deceased.
15. For the reasons indicated above, we find that the order of conviction of the accused for the offence of murder is not sustainable. He is entitled to the benefit of doubt. Such benefit is granted in his favour and he is acquitted from the charges. Accordingly we direct to set him at liberty, if his detention in custody is not required in t connection with any other case.
The Jail Criminal Appeal is accordingly allowed.