1. The appellant Kotari Suri has been convicted by the learned Additional Sessions Judge, Berhampur, Circuit at Paralakhemundi, under section 302, I. P. C. and sentenced to undergo R. I. for life for causing the death of one Medi Tiwa.
2. The brief narration of the prosecution case' is that the appellant suspected the deceased, a co-villager, to be in illicit connection with his wife and took exception to it. In the early hours in the morning of 8. 3. 1979, the appellant picked up a quarrel with his wife for her being in illicit connection with the deceased and attempted-to assault her. At that time the deceased chanced to come there. As the deceased tried to intervene, the appellant out of rage dealt two-blows on him with the blunt side of a spade and caused his death. It is alleged that on previous occasions also there was quarrel between the appellant and the deceased regarding the latter's illicit connection with the farmer's wife. After the occurrence the appellant absconded from the village till P. W. 3 apprehended him in the Palasa Railway Station after 17 days of the occurrence and handed over him to the police.
P. W. 4, the Choukidar of the village, lodged the First Information Report about the incident at the Paralakhemundi Police Station on the date of occurrence itself., On receipt of the information, investigation was started. In course of investigation, inquest was held on the dead body and the dead body was sent for post-mortem examination. After completion of the investigation, the appellant was charge-sheeted Under Section 302, I. P. C. he was tried for the said charge and has been convicted and sentenced as stated above.
3. The appellant pleaded not guilty to the charge.
4. Nine witnesses were examined on behalf of the prosecution. P. W. 1 the officer in-charge of the Paralakhemundi Police Station at the relevant time had recorded the First Information Report, lodged by the Choukidar. P. W. 4. P. W. 7 is the Doctor who held the Post-mortem examination on the dead body of the deceased. P. W. 9 is the Sub-Inspector of Police who investigated the case.
5. No witness has been examined on behalf of the defence.
6. As the appellant was rot represented by any Counsel, we-engaged Mr. Suman Kumar Dey, Advocate, to represent him at the State expense.
Mr. Dev submits that there is no evidence at all to bring home the charge against the appellant and that the evidence that has been sought to be relied upon by the prosecution is so shaky and doubtful that no credence should have been placed on it. The learned Counsel has further submitted that the prosecution evidence is afflicted with such infirmity as not to inspire confidence, but still then the trial court convicted the appellant on such halting and undependable evidence.
7. On a perusal of the impugned judgement, we find that the Trial Court solely relied on the evidence of P. W. 3 who has deposed that the appellant made an extra-judicial confession before him that he had killed the deceased. Another piece of material taken into consideration by the learned trial court is that after the occurrence the appellant absconded for 17 days. The next piece of material is the statement allegedly made by the appellant leading to the discovery of the weapon of offence. But the trial court has not relied on this piece of evidence.
8. There is no eye witness to the occurrence and the prosecution case hinges entirely on the circumstantial evidence.
9. Circumstantial evidence means a fact on which an inference is to be founded, it is the testimony of a wisness to other facts, that is, facts other than those in issue which are relevant facts from which the in issue may be inferred. In order to be a circumstantial evidence, the facts themselves must be closely knitted with each other and must form a strong body which must carry conviction to the mind of a Judge. It may be proof of more 'satisfactory sort'. Evidence which proves or tends to prove the 'factum probandum'' indirectly, by means of certain inferences or deductions to be drawn from its existence and their connection with 'facts probantia' is 'circumstantial evidence'. We infer or presume things from collateral circumstances. Therefore the nature of the evidence is often styled as ''collateral evidence'.. It is often stated that circumstantial evidence cannot lie, but it is not true for all occasions as appears from everyday experience, as circumstances do lie cruelly. Circumstantial evidence has its peculiar excellencies and defects. Some of the golden principles governing admissibility and use of circumstantial evidence are :
(1) The facts alleged as the basis of any legal inference must be` clearly proved and connected with the 'factum probandum' :
(2) The burden of proof is always on the party who asserts the existence of any fact which infers legal accountability ;
(3) In all cases, whether direct or circumstantial, the best evidence must be adduced which the nature of the case admits :
(4) In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt, and
(5) If there by any reasonable doubt of the guilt of the accused, he is entitlled as of right to be acquitted.
Sec. (1983) (1) Gauhati Law Reporter (NOC) 25;
Dhira Choudhury v. State of Assam.
It is the settled principle of law that there is no legal infirmity in basing the conviction only on the circumstantial evidence, but in a case depending wholly on the circumstantial evidence, before recording a conviction on the basis thereof, the court must be firmly satisfied (i) that the circumstances from which the inference, of guilt is to be drawn have been fully established by unimpeachable evidence beyond a shadow of doubt, (ii) that the circumstances are of determinative tendency unerringly pointing to the guilt of the accused and (iii) that the circumstances, taken collectively, are incapable of explanation on any reasonable hypothesis save that of the guilt sought to be proved against him. (Sec. (1982 ) Gauhati Law Reporter. 712 Bimal Indwar v. State of Assam.
As adverted above, it is well settled that in a case resting on circumstantial evidence, all circumstances brought by the prosecution must inevitably and exclusively point to the guilt of the accused and there should be no circumstance which may be reasonably considered with the innocence of the accused. Even in, the case of circumstantial evidence, the court will have to bear in mind the. cumulative effect of all the circumstances in a given case and weigh them as an integrated whole. Any missing link may be fatal to the prosecution case.
10. In this case, as we have already indicated, the prosecution relies upon the extra-Judicial confession allegedly made by the appellant to P. W. 3. From the evidence of P. W, 3 it appears that he saw the appellant at the Palasa Railway Station after 17 days o the occurrence. When this witnees accosted the appellant as to why he was there, the appellant state that he had committed the murder of the deceased and out of apprehension of arrest he was going away by train. It has come out from his evidence that he had no previous acquaintance with the appellant. We have very carefully scanned his evidence and we find that no implicit reliance can be placed on his testimony. It is the settled principle of law that an extra-judicial confession is a very weak type of evidence because such confession is made before a person who is not in the court. Therefore, unless there is any compelling reason or cogent and corroborative material it is difficult to rely on the circumstantial evidence and base a conviction solely on such evidence.
So far a the other circumstances that the appellant was absconding for about 17 days after the occurrence is concerned, that by itself cannot be taken to be a ground to hold that the appellant was nb5conding only because he murdered somebody. It may be a mere case of suspicion which cannot be a substitute for proof. In Rahman v. the State of U. P. A. I. R. 1972 Supreme Court-110, their Lordships have said that absconding by itself is not. conclusive either of guilt or of guilty conscience. Similar is the view taken by their Lordships in Datar Singh v. The State of Punjab. A. I. R. 1974r Supreme Court, 1193, where it has been stated that the prosecution cannot benefit from merely suspicious circumstances that the accused did not surrender or was not traceable for nearly one year. In view of this settled principle of law,, we hold that merely because the appellant was absent from the village or absconding for 17 days, that by itself cannot be of any avail to the prosecution.
11. On a careful scrutiny of the evidence on record and on going through the impugned judgment. we have no manner of doubt that the order of conviction is not sustainable in law.
12. In the result the appeal is allowed, and the order of conviction and sentence passed against the appellant is set aside. The, appellant be set at liberty forthwith unless his detention is required in connection with some other case.
Sd/- D. pathak
D.P. Mohapatra, J.
13. I agree.
Sd/- D.P. Mohapatra,