B. Panigrahi, J.
1. This appeal is directed against the judgment and order passed by the Sessions Judge, Kalahandi- Nuapada at Bhawanipatna, in S.C. No. 64 of 1994 convicting the appellant Under Section 302, I.P.C. and sentencing him thereunder to undergo imprisonment for life for having committed murder of one Raju Majhi, his own brother-in-law.
2. The skeletal picture of the prosecution story as depicted in the judgment of the Court below is as follows : The appellant is the maternal uncle of the informant (P.W.I) Budha Majhi of village Arkhedi under Thuamul-Rampur Police Station, in the district of Kalahandi. On 17.7.1994 evening, the appellant had visited the house of the informant and at that time he was holding a Tangia, a bow and arrow. After taking his dinner, he slept on the verandah of the house. The deceased and his wife (P.W.2) also slept on the same verandah. In the midnight, P.W.2, the mother of the informant shouted saying that the deceased (informant's father) was killed and the appellant was running away after committing murder. P.W.I, who was sleeping inside the room, opened the door and noticed his maternal uncle (the appellant) running away with a Tangia, bow and arrow in hand. However, he could not overpower the appellant as a result of which he escaped from the site. The villagers searched for the appellant by means of torchlight in the night, but could not trace him out. The father of the informant was lying dead with three injuries inflicted by means of Tangia and since it was night, the villagers guarded the dead body. On the following morning the matter was reported to the Police by the informant. The report was scribed by one Ankura Patra and after the contents of the report were read over and explained to P.W. 1, the informant, he signed the report. The report was proved before the learned Sessions Judge and marked as Ext. 1. The Officer-in-charge, Thuamul- Rampur P.S. on receiving the report treated it as F.I.R. and registered P.S. Case No. 30/94 Under Section 302, I.P.C. and after drawing up formal F.I.R. immediately swang into action and took up investigation. He visited the spot, held inquest over the dead body of Raju Majhi and prepared the inquest report. He sent the dead body for post mortem examination. He further seized the Tangia, bow and arrow and prepared Seizure-list (Ext.7). He collected blood-stained earth, sample earth from the spot as per Seizure-list (Ext.5) and one Hero Cycle as per Seizure-list (Ext.6). The I.O. prepared the spot-map (Ext. 10). After receipt o the post mortem report, the I.O. made a query to the Medical Officer as per Ext. 3/1 and ascertained that the injuries could be possible by an axe. The appellant was thereupon arrested and forwarded to judicial custody on 21.7.1994. The I.O. also seized the wearing apparels of the deceased as per seizure-list (Ext. 1 l).The axe (M.O.I.) was seized as per Seizure- list (Ext. 7). After completion of investigation, charge sheet was placed against the appellant.
3. In order to bring home the charges to the appellant, the prosecution examined 8 witnesses of which P.Ws. 1 and 2 are said to be relations of the deceased; P.W.3 is the Medical Officer, who conducted the autopsy on the deceased Raju Majhi: P.W.4 was a witness to seizure of blood-stain earth, Hero Cycle and also to the inquest report, whereas P.W.5 was witness to seizure of axe (M.O.I.) P.Ws.5 and 6 are said-to be witnesses to extra-judicial confession alleged to have been made by the appellant. P.W.7 is the Police constable who carried the dead body to the P.H.C. for post mortem examination and P.W.8 was the Investigating Officer.
4. The accused did not adduce any evidence in support of his defence. The plead of the accused was complete denial.
5. The learned trial judge mainly basing upon the evidence of P.Ws.l, 2, 5, and 6, found the accused-appellant guilty and accordingly convicted the appellant Under Section 302, I.P.C. for having committed murder of Raju Majhi and sentenced him thereunder to undergo imprisonment for life.
6. The prosecution in order to sustain a conviction of the appellant relies upon the circumstantial evidence was well as extra-judicial confession s&id; to have been made by the appellant. Miss Sahu, learned Advocate appearing for the appellant, has strongly contended that in this case the prosecution has miserably failed to bring home the charge to the accused, inasmuch as the weapon of offence i.e. the axe which was allegedly used by the appellant for committing the murder was not sent for chemical examination. The I.O.. (P.W.8) made a clean-breast admission that he did not send the axe and bow, arrows etc. for chemical analysis since they did not contain any blood-stain. He initially sent those material objects to the District Forensic Science Laboratory, but on the basis of the report that they did not contain any blood stain, he, therefore, thought it imprudent to send those material objects for chemical analysis.
7. P.W. 1, the informant.however, stated in the F.I.R. that the appellant committed the crime on account of previous enmity as the appellant had demanded back his cycle which he had given to P.W.I in exchange of a she-goat and had threatened to kill either P.W. 1 or his father in case the cycle is not returned to him. The learned counsel for the appellant took us through the evidence of P.W.2, who is none else, but the sister of the appellant and wife of the deceased P.W.2. stated that the accused was on visiting terms and there was no enmity between him and the deceased, Raju Majhi. In that view of the matter, the story of enmity between P.W. 1 and the appellant falls to the ground. In a case depending upon circumstantial evidence, motive seems to be the prime factor while determining the culpability of an accused. In the instant case, motive as attributed against the appellant, has to been proved by the prosecution.
8. The next aspect of the prosecution case is the circumstance relating to 'last seen together'. On the basis of the prosecution evidence, the deceased, the appellant and P.W.2 had slept on the outer verandah of the house of P.W. 1. Nobody has seen as to the actual commission of the crime. Only at 11.O' clock night, P.W.2 woke up when someone tumbled on her head. She then lighted a match-stick and found the appellant running with bow, arrows and axe. She further stated that she tried to catch-hold of the appellant, but could not succeed and, therefore, called out P.W. 1. After hearing the cry of P.W.2, P.W. 1 opened the door and noticed the appellant running away with bow, arrow and also an axe. P.W. 1 subsequently made hue and cry and by hearing such hulla. the villagers gathered in his house and guarded the dead body during the entire night. In the morning the report was lodged at the Police Station. This evidence of P.Ws.l and 2 is not sufficient to hold that the appellant was the author of the crime, had the material objects alleged to have been used for commission of the offence been sent for chemical analysis and existence of human blood would have been detected, it could have been suggested that such weapon of offence was used in the commission of offence. In the absence of any such incriminating material appearing in the case, even if P.W.2 had noticed the appellant running away from the house in the midnight, that by itself would not be sufficient to hold the appellant guilty. After the appellant allegedly tumbled upon the head of P.W.2 and till she lighted kerosene lamp, it is unnatural to assume that the appellant would remain static only to enable her to see him at the spot. Similarly, the evidence of P.W. 1 appears to be incredible for the same reason. It is the admitted case that the axe suspected to have been used by the appellant did not have blood-stain and, therefore, the I.O. did not send the same for chemical analysis.
9. The prosecution has relied upon the extra judicial confession stated to have been made before P.Ws. 5 and 6. It appears from the evidence that after the police reached the place of occurrence, P.Ws.5 and 6 were asked to apprehend the appellant from his house. P.W.6 is said to be the brother- in-law of the accused. From his evidence it appears as if under pressure from police, P.Ws. 5 and 6 forced the appellant to make such extra-judicial confession. P.Ws. 5 and 6 stated that the appellant made extra-judicial confession stating that he had committed the murder of Raju Majhi. Even assuming such statement of the witnesses to be true, we do not find anything from their evidence to hold that such confession was voluntary. The confession alleged to have been made by the appellant was never reproduced in Court in the manner in which it was stated. The police was outside the house and the appellant under apprehension of arrest might have fluttered out some words which cannot be regarded as voluntary. An extra-judicial confession ordinarily is taken to be a weak piece of evidence unless it receives corroboration from other evidence. In this case, the evidence regarding extra-judicial confession is also not above board so as to be used as a circumstance against the appellant.
10. The doctor (P.W.3) who conducted the post mortem examination of the dead body of the deceased found three injuries on the left side chest, such as :
Injury No.l, incised wound 8' x 2 1/2 x 5' depth extending from the left nipple with mid axillary line tailing from nipple to sharp boarder.-
2. Incised wound 1' above the left nipple extend upward chest 2 1/2' x 1 1/2' size.
3. Incised wound situated on the left side chest 1 1/2' above the second injury adjacent to the left sternal border 3' x 1 1/2' x 4' injury to the heart tip and lungs tip. Fracture of ribs 5th. and 6th. corresponding to injury No.l.'
According to the doctor, death was due to shock and haemorrhage due to injury on vital organs like lungs, heart and ribs and the injuries-are ante mortem in nature. From the trend of cross- examination it has also come to light that the defence has never disputed the fact that the deceased met a homicidal death. In the aforesaid situation, Raju Majhi died of injuries cannot be disputed. But the question remains as to how far the prosecution is able to bring home the charge against the accused. From the afore-mentioned discussion. we notice that the prosecution could not prove all the circumstances which would have established that the appellant was the author of the crime. Therefore, we are unable to agree with the conclusion of the learned Sessions Judge to hold the appellant guilty of the offence. In a case depending upon circumstantial evidence, the prosecution should lead clinching and unimpeachable evidence by which it can be established that all the circumstances taken together must show unmistakably the guilt of the accused. In this case, the prosecution having failed to prove all the circumstances, we are, therefore, constrained to upset the findings of the learned Sessions Judge.
11. In the result, the Jail Criminal Appeal is allowed. The conviction and sentence passed against the appellant are hereby set aside. The appellant, in custody, shall be set at liberty forthwith, if his detention is not required in any other case.
L. Mohapatra, J.
12. I agree.