Das, Ag. C.J.
1. The appellant has been convicted under section 302, IPC. and sentenced to R. I. for life for having committed the murder of his niece Sulabha alias Sulochana Dei aged about six years on 9-2-1965.
2. Father of the deceased Sulochana and the appellant are two brothers who were living in the same house, but in separate mess. The mother (PW. 1) of the deceased was absent from home for sometime and during her absence, it is said that the accused managed to remove some paddy PW 1 when returned home noticed that some paddy was lying scattered. To enquiry by PW. 1 the accused denied to have any knowledge about the same, but Sulochana informed PW. 1 that it was the accused who had removed the paddy. At this, the accused got annoyed and that this is said to be the motive for the murder.
3. After sometime the girl went towards the village-tank for taking bath. The girl, however, did not return. The anxious mother went in search of the girl, but was not able to trace her out. Sometime in the evening, the accused returned home carrying the deadbody of the girl. The mother noticed a swelling on the throat of the daughter. She cried aloud when the villagers gathered there. Later on, it is said that the accused confessed before PW. 1 and some of the witnesses, such as, PWs. 5 and 8 that he throttled the girl to death. A case of unnatural death was first recorded by the police on 9-2-65. On the following day, the I.O. (PW. 10) came to the village and suspecting some foul play, on account of the presence of some injuries on the neck of the girl, he sent the deadbody for post-mortem examination by the doctor. PW 2. a lady assistant surgeon made the Dost mortem examination of the deceased and held that it was a case of death by strangulation. The I.O. then drew up an F.I.R (Ex. 4) under Section 302. I.P.C. After investigation, the accused was charge-sheeted and committed to the court of sessions where he was convicted and sentenced a above.
4. The plea of the accused is one of a denial. In his statement under section 342, Cr. PC. he said that he and the girl went to Lokonath Temple and while returning walking one behind the other, she fell down as she was suffering from fits Then the accused carried her home. There when he lifted her she was found dead.
5. There is no eye-witness to the occurrence, prosecution, however, relied upon: (1) the extra-Judicial confession said to have been made by the accused before PWs. 1, 5 and 8; (ii) admission of the accused made in his statement that he and the girl went together to the temple and the death took place while she was In his company and that the accused has not offered sufficient explanation as to how the injuries found on the neck of the deceased were caused.
6. There is some evidence to show that shortly after the death of the girl, PW 9, a constable who was engaged In beat-duty In neighbouring village, came to the spot, kept guard over the deadbody as some foul play was suspected. He was also guarding the accused so that he may not run away. The learned trial court did not place any reliance on the extra-judicial confession said to have been made by the accused before PWs. 1, 5 and 8, the main reason being that the accused was under surveillance of the police constable, PW 9, when the alleged extra-judicial confession was made A? such the alleged confession which was also retracted was hit by the provision of Section 26 of the Evidence Act He, however relied upon the circumstance, viz., that the accused admittedly had been in the company of the deceased shortly before her death and was unable to offer any satisfactory explanation as to how the injuries on the neck of the acdeceased were caused, which, according to the doctor, were marks of strangulation and the cause of death.
7. It is admitted in evidence that the accused was under surveillance of the police when the alleged extra-judicial confession was made. There are authorities to say that though an accused was not formally taken into custody, but was merely under police surveillance, yet the confession shall be hit by section 26 of the Evidence Act and such a confession cannot be proved against him (see 31 Cut. L. T. 17 : (AIR 1964 Orissa 144) Paramahansa Jadav v. State). Assuming, however, it is not so hit by section 26, it is well-settled that usually and as a matter of caution, courts require some material to corroborate an extra-judicial confession--Corroboration which connects the accused with the crime (see AIR 1959 S.C. 18 Ratan Gond v. State of Bihar). There is, however no such corroboration in this case. The learned Sessions Judge has rightly refused to accept the alleged extra-judicial confession of the accused.
8. Reliance however, was placed by the learned trial court on the statement made by the accused under section 342, Cr. P. C. wherein he is said to have admitted that he and Sulabha (deceased) went to have to Gada Lokanath Temple and came back together. To understand this aspect of the case, it is necessary to reproduce the question and the answer given thereto.
''Question: PW. 1 further stated that her daughter went to the tank for bath and you followed her and In the after-noon you returned home carrying the deadbody of Sulabha Dei on your shoulder. What have you to say?
Answer: I and Sulabha went to Gada Lokanath temple. While returning walking, one behind the other, she fell down as she suffered from fits. I then carried her home. When she was lifted down, she was found dead.'
The question put to the accused, however, is not based upon any evidence on record that the accused followed the deceased when the latter went to the tank. In fact, the mother has said nothing in the trial court about the accused following her daughter to the tank, Section 342 Cr. P. C. clearly contemplates that the question to the accused must relate to the circumstances in the evidence which go against him. The answer of the accused neither followed from the question put to him, nor Is the question supported by any evidence on record. The learned Sessions Judge was obviously not entitled to put questions on fact which have not been proved in evidence. It has been held by a Division Bench of this Court reported in ILR (1966) Cut, 168 : (AIR 1966 Ori 156), State v. Chenia that if there are no circumstances appearing against the accused in evidence, then unquestionably the Judge should not put him any question at all under section 342, Cr. P. C. If any statement is made by an accused as a result of any question improperly put to him, it cannot be taken into account against him. If, however, on a question properly put, the accused chooses to make a statement which inculpates him, then his answer can be taken into account although that answer may not be necessary for explaining away all the circumstances appearing against him. As we have already said, there is no evidence In the case before us that the accused in fact followed the girl to the tank, and was In her company from that time till her death. Assuming, however, he admitted that he and the deceased came walking together, he has also stated that the girl fell down as she suffers from fits and he carried her home. It is well settled that a confession and an admission must either be accepted or rejected as a whole and the Court is not competent to accept only the inculpatory part while rejecting the part which is exculpatory in character; (See AIR 1952 S.C. 354, Palvinder Kaur v. State of Punjab). If the whole statement is accepted, then it is clear that the accused has given a reasonable explanation as to how the deceased met her death.
9. The evidence regarding the cause of death equally appears to be very unsatisfactory, the inquest report was made on the day following the occurrence, that is, 10-2-65 whereas the post-mortem examination took place about forty-eight hours after the death. According to the doctor, she noticed some marks of legature on the neck of the' deceased, whereas no such legature mark was noticed by the I.O., PW 10 when he made the inquest (Ext. 2). On a comparison of the injuries as noted in the inquest report and that found by the doctor, there seems to be a good deal of various regarding the nature of injuries found on the person of the deceased. It is unnecessary to examine them in detail.
10. As already stated, there is no direct evidence of the murder and the prosecution has relied only on some evidence of a circumstantial nature. It is well settled that circumstantial evidence, to be the basis of conviction, must be such as to be wholly incompatible with the innocence of the accused, and should be of such conclusive nature as to exclude every hypothesis except the one proposed to be proved. That is not, however, the case here. The accused must 'therefore be entitled to the benefit of doubt and an acquittal.
In the result, the order of conviction and sentence passed upon the appellant is set aside; and the appellant Is directed to beset at liberty forthwith.
11. I agree.