1. The appellant Behera Tanti was charged with the offence of having committed the murder of his wife by severing her head from the body with a 'Falsia'. He has been convicted by the Sessions Judge, Sandergarh-Sambalpur under Section 302, Penal Code, and sentenced to transportation for life.
2. The evidence against the appellant consists of a confessional statement; alleged to have been made by him--which is marked Ex. 4--but which was subsequently retracted, the oral evidence of P. Ws. 3 to 6 and, the circumstantial evidence relating to his conduct after the occurrence.
3. So far as Ex. 4 is concerned, the appellant appears to have stated therein that there was an altercation between him and his wife, but that he did not know what he did with her though he saw his knife stained with blood. He therefore ran to the police station where he realised that he had killed his wife. The appellant went to the police station himself, taking the Falsia with him and there the Sub-Inspector of police seized the weapon as well his clothes suspected to have been stained with blood. This statement of the appellant, recorded by a Magistrate under Section 164, Criminal P.C., was subsequently retracted at the Court where he categorically denied having killed his wife. His statement before the Court was that he did not know how his wife had been killed and that when he came home and saw the body of the deceased he ran to the police station and produced the 'Falsia'. It is argued by learned counsel appearing for the State that the appellant's statement amounts to an admission of his guilt firstly because the appellant says that he found the knife to have contained stains of blood on it and secondly because of his statement that soon thereafter he realized that ho had killed his wife. We are unable to accede to this contention because his statement purports to convey what appears to have been an impression created in his mind regarding the occurrence, and cannot amount to a categorical admission that he had actually killed the deceased. As has been observed by the Judicial Committee in Pakala Narayanaswami v. Emperor, A. I. R. (26) 1999 P. C. 47 : (40 Cr. L. J. 364), a confession in order to be admissible under the Evidence Act must either in terms, admit the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession, e. g., an admission that the accused is the owner of and was in recent possession of the knife which caused the death is not enough. (After discussing the evidence of child witnesses P. Ws. 3 to 6 the judgment proceeded as follows:)
4. In addition to the above witnesses, the deposition of Gunna another girl of 12 years of age, which had been recorded by the committing Magistrate, was tendered in evidence in the sessions trial under Section 33, Evidence Act. Prosecution witness 1, the father of the appellant deposed at the sessions trial that Gunna was at that time at Midnapore. No effort appears to have been made to procure her nor is it in evidence that she was otherwise unable to attend. In these circumstances Gunna's evidence tendered before the Committing Magistrate cannot be admitted as evidence under Section 38. Section 33 must be strictly applied and the circumstances mentioned therein must be strictly proved before a deposition can be accepted as evidence against the accused. We are not satisfied that the conditions mentioned in Section 33, Evidence Act, have been proved to have existed in this case, in order to justify the admission of Gunna's deposition as evidence against the appellant. Thus there is no reliable evidence at all against the appellant to bring home the guilt to him.
5. The circumstantial evidence against the appellant is that be produced a 'Falsia' at the police station (M. O. 1) and that his cloth had been found stained with blood, But unfortunately, for reasons left unexplained, these blood stains were not subjected to any chemical analysis and it has not been established that the stains were of the deceased's blood or that they were of human origin.
6. It is no doubt clearly established that the deceased met with her death by violent means as the medical evidence indisputably shows, but in view of the lacuna in the evidence the connection of the appellant with the death has not been made out to our satisfaction. In these circumstances we have no option but to give the benefit of doubt to the appellant. We accordingly eat aside his conviction and the sentence passed against him and direct that he should be released forthwith.
7. I agree.