1. This appeal from jail is directed against the judgment and order passed by the learned Additional Sessions Judge, Bhawanipatna, in Sessions Case No. 20-K/22 of 1980 convicting the appellant under Section 302, I. P. C and sentencing him to undergo R. I. for life.
2. A short narration of the facts leading to the present appeal is that on the 30th August, 1979 the appellant and his third wife Satyabati, the deceased, were sleeping together at night in the Mancha situated at the back side of their house. While they were talking, some unknown persons focused a torch-light towards the Mancha. Some time thereafter, the deceased went out saying that she would attend the call of nature. As the deceased did not return for a long time, the appellant fell asleep. But subsequently when he woke up and looked for his wife, he did not find her. He, therefore, went out to find the deceased when he saw two persons leaving the premises by focusing a torch-light. When Satyabati came back, the appellant questioned her about her fidelity. She replied that she would do whatever she liked. The next morning at about 9 o'clock the appellant and the deceased went together to the forest for collecting twigs. As both of them did not return to the village till the 2nd of September, 1979; P. Ws. 7 and 8 proceeded to the Jubrajpur outpost for giving a missing report. While they were so proceeding, they saw the appellant with a Tangia coming from the outpost along with a police officer.
The prosecution case is that in the morning of 2nd September, 1979, the appellant went to the Jubrajpur outpost and gave the first information report incriminating himself for the murder of his wife Satyabati. It is also the case of the prosecution that while the appellant was accompanying the police officer, P. Ws.7 and 8 also accompanied them and on the information given by the appellant, they went to the place of occurrence and the dead body of the deceased was recovered. Thereafter, the appellant was formally arrested by the police. Inquest was held over the dead body and it was sent for post mortem examination. Investigation having been completed, the appellant was charge-sheeted under Section. 302, I. P. C. and put on trial.
3. In his statement under Section. 313, Cr. P.C., 1973 except admitting the fact that he lodged the F. I R. at the Jubrajpur outpost, the appellant has denied the other alleged incriminating circumstances against him.
4. During trial, 12 witnesses including the doctor P. W. 1 who held post mortem examination on the dead body of the deceased and two police officers, P. Ws. 4 and 12, were examined. On an appreciation of the evidence on record, the learned trial Court has returned a verdict of guilt and has convicted and sentenced the appellant as already stated above.
5. There is no dispute about the factum of the death of Satyabati. P. W. 1, the doctor who held post mortem examination on the dead body of the deceased, found the following injuries
(1) One incised wound over the calf muscle on the ankro-lateral aspect of the left leg, 8 above the lateral malleolus, size 3' x 1/4' x1/4'. The injury was placed vertically.
(2) One incised injury over the forehead in the centre (glabella) 1' above the nasion, placed transversely. The bone is visible and the margins look blackish blue in colour. Size 1.8' x 1' over the frontal bone. The bone below the injury is fractured and the fractured pieces are depressed down to the membrane where it causes laceration to the duramater. Sizeof the fracture was 3/4' x 1/3'. There was intra-cranial haemorrhage which is extra-dural. The uterus contents; 7 months (I. U.) female foetus. The size of the uterus was upto umblicus.
In the opinion of the doctor, the death was due to the intracranial haemorrhage and injuries to the vital organs.
The Heath of Satyabati has also been testified by P. W. 6, the mother of the deceased, and also by P. Ws. 5, 7 and 8.
6. As the appellant is not represented by any counsel we have appointed Mrs. Pramila Mohanty, Advocate, to represent him at the state expense
7. The only question that has been raised by Mrs. Mohanty is that there is no evidence of clinching nature to fasten the liability on the appellant for the heinous offence of murder.
8. We have very carefully scrutinised and scanned the prosecution evidence. The entire prosecution case rests on circumstantial evidence. There is no doubt that a conviction can be based on circumstantial evidence provided it satisfies the three tests, namely, :
(i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established :
(ii) the circumstances would be of such a defenite nature and tendency as to point unerringly to the guilt of the accused ; and
(iii) the circumstances taken cumulatively should form a chain which is not snapped in between so as to give rise to the inference of guilt of the accused.
In this case, the main circumstance sought to be relied upon by the prosecution is that the appellant went to the Jubrajpur outpost on 2.9.1979 and gave the first information report incriminating himself for the murder of his wife suspecting her fidelity.
The next circumstance brought out by the prosecution from the evidence of P. Ws. 6 and 10 is that in the morning of 31st August, 1979 the appellant accompanied by Satyabati went to the forest for collecting twigs. P.W. 10 has stated that while the appellant and the deceased were proceeding to the forest, he accosted them as to where they were going. The appellant gave the reply that they were going to the forest to collect twigs.
The further circumstance is that from 31st August, 1979 till 2nd September, 1979, neither the appellant nor Satyabati was found in the village.
Yet another circumstance is that on the first information report given by the appellant at the outpost the police party accompanied by P. Ws. 7 and 8 discovered the dead body from the place of occurrence.
9. So fat as the first information report given by the appellant, which he has not denied, is concerned, the contents there of will not be admissible in evidence in view of the provision of Section 25 of the Evidence Act
P. Ws. 6 and 10 have only deposed that the appellant and the deceased were seen together going to the forest for collecting twigs. The appellant's mere accompanying the deceased cannot be construed to be a circumstance of unusual nature. There may be suspicion after the occurrence, but suspicion cannot be a substitute of proof of the guilt of the appellant.
The third circumstance brought out by the prosecution as to the non-availability of the appellant and the deceased in the village for two days continuously cannot by itself by construed to be a fact that the appellant murdered Satyabati.
The last circumstance relied-upon by the Prosecution by taking aid of the provision of Section 27 of the Evidence Act is also not enough to bring home the charge against the appellant. We have already adverted to the fact that the appellant was not arrested by the police when he gave the first information report. It may be argued that as he was with the police party after the information, he was constructively in the custody of the police. The information given by the appellant at the outpost as a result of which the dead body of Satyabati was found at the place of occurrence proves only the factum of discovery of the dead body and nothing more.
10. A case of similar nature cams up for consideration before the Supreme Court in Aghanoo Nagesia v. State of Bihar: A. I. R. 1966 S.C. 119 where the first information report was given by the accused before he was arrested and as a result of the statement made by the accused, the dead body and other incriminating materials were found. Their Lordships held that mere discovery of the dead body and the incriminating materials would not be enough to convict the accused under section 302, I. P. C. we may profitably quote here the observations of their Lordships in paragraph 21 of the Reporter:
'Section 27 applies only to information received from a person accused of an offence in the custody of a police officer. Now, the Sub-Inspector stated he arrested the appellant after he gave the first information report leading to the discovery. prima facie, therefore, the appellant was not in the custody of a police officer when he gave the report, unless it can be said that he was then in constructive custody. On the question whether a person directly giving to police officer information which may be used as evidence against him may be deemed to have submitted himself to the custody of the police officer within the meaning of Section 27, there is conflict of opinion. See the observation of Shah, J. and Subba Rao, J. in (1951) 1 SCR 14 : (AIR 1960 S. C. 1125). For the purposes of the case, we shall assume that the appellant was constructively in police custody, and, therefore, the information contained in the first information report leading to the discovery of the dead bodies and the Tangi is admissible in evidence. The entire evidence against the appellant then consists of the fact that the appellant gave information as to the place where the dead bodies were lying and as to the place where he concealed the Tangi, the discovery of the dead bodies and the Tangi in consequence of the information, the discovery of a blood-stained chadar from the appellant's house and the fact that he had gone to Dungi Jharan Hills on the morning of August 11, 1963. This evidence is not sufficient to convict the appellant of the offence under Section 302 of the Indian Penal Code.'
The present case is almost of a similar nature where the only strong circumstance against the appellant is the discovery of the dead body as a result of the statement made by him in the first information report. On such a halting nature of the evidence, a person cannot be held to be guilty of a henious offence like murder.
11. On a through scrutiny of the evidence and for the reasons recorded above, we find that the impugned judgment and order is not sustainable in law.
12. In the result, we allow the appeal and set aside the order of conviction and sentence passed by the learned Addl. Sessions Judge. The appellant be set at liberty forthwith if his detention is not required in connection with any other case.
S.C. Mohapatra, J.
13. I agree.