B.K. Behera, J.
1. This appeal has been directed against the judgment and order passed by Mr. P. Jena, Sessions Judge, finding the appellant to be guilty of the charge of murder, convicting him under Section 302 of the Indian Penal Code and sentencing him there under to undergo imprisonment for life. The appellant stood charged for committing the murder of his wife Gurubari (hereafter to be referred to as 'the deceased'). The prosecution had examined six witnesses to establish its case.
2. The tale presented by the prosecution at the trial was one of the husband killing his wife suspecting her fidelity and for her secret love affairs with his younger brother of which there was no material ether then the extrajudicial confession in the evidence of P. Ws. 3 and 4 which not only bristled with material discrepancies with regard to the exact words said to have been uttered by the appellant, but was also fraught with suspicious features to be discussed hereinafter. The prosecution had not been able to establish as to why the appellant would kill his wife, who, according to Vatsayana 'is half the man, the best friend, the root of the family and its perpetuity, the source of well-being, while coming together on their way back after nightfall on September 20 1979.
3. The contention raised on behalf of the appellant by the learned counsel appearing for him that the impugned order of conviction is unfounded and misconceived shall prevail although the learned Additional Government Advocate has made halting and hesitating submissions in support of the order of conviction.
4. When evidence is led by the prosecution relating to theories of the accused and the deceased persons being last seen together, extra-Judicial confessions and statements leading to discoveries within the purview of Section 27 of the Evidence Act and such facts are disputed by the defence and extrajudicial confessions are retracted, the trial Court should be careful and circumspect in judging the truth of such evidence.
5. The evidence of P. W. 3 that the appellant and the deceased came to his residence sometime in the evening prior to the murderous assault and had taken tobacco from him and had accepted Sajan and Kauari leaves from his wife, had not been supported by any other co-villager of P. W. 3 who would normally have seen the appellant and the deceased in the village and not even by his wife whom the prosecution had not chosen to examine. The evidence of this witness that on hearing the cry raised by the deceased that she was being killed, he ran to the spot not far away from his house and which, according to the Investigating Officer, was about half a furlong away although he had not made any experiment as to whether the cry of a person on the spot would be audible to the house of P. W. 3 and that on reaching the spot, He saw the appellant dealing successive blows by the lathi (M.O.I.) on the deceased lying on the ground and on being asked by him, the appellant gave out that the deceased had been talking to his (appellant's younger brother, but not to him which had enraged him and therefore, he killed her and that his witness had been able to identify not only the lathi (M.O.I), but also the napkin (M. O. II) and the basin (M. O. III) of the appellant after nightfall and in darkness because there was no evidence that there was any light, would not stand to commonsense, such less to reason. The ward Member Rupai who, he had claimed, had been informed of the occurrence the next morning had not been examined and he had not testified as to what all he had told P. W. 4 and 'others. It was hightly unlikely that in the circumstances in which P. W. 3 had been placed during that part of the night, he would have been able to identify M. Os. I to III.
6. As his own evidence would show, P. W. 3 had not informed anyone in the village during the night of occurrence as to what he had claimed to have been and he did not even inform his wife anything owing to fear, as explained by him. If he wa3 temperamentally a nervous person, he was not likely to have gone to the spot after hearing the cry without calling anyone of his village or bringing it to their notice. By the time he claimed to have informed P. W. 4 and other the police Officer had not come to the scene and if he had entertained a fear in his mind, it would not suddenly Danish. It is pertinent to keep in mind that in his statement under Section 164 of the Code of Criminal Procedure with which he had been bound down in the course of investigation and a departure from the statement made therein might land him in trouble by being prosecuted for perjury for which the evidence of this witness required careful scrutiny before acceptance although did not entail rejection on this ground alone, he had not stated that the appellant had told him that the deceased had been talking to his younger brother, but was not talking to him.
7. The evidence of P.W. 4 was that in the morning following the night of occurrence, he had been informed by P. W. 3 that the appellant and the deceased had left his house and that on the way, the appellant had killed the decease. He had not, in terms, stated that he had been informed by P. W. 3 that he had seen the fact of assault or about the extrajudicial confession said to have been made by the appellant before him (P. W. 3).
8. P. Ws. 3 and 4 had testified that they searched for and found the appellant near a rivulet and that on being asked by them, the appellant gave out that he had killed the deceased. While P. W. 3 had given evidence that the appellant had given out that as his wife was only talking to his younger brother, but was not talking to him, he killed her, the evidence of P. W. 4. was that the appellant gave out that his wife and his brother were having love talks every day and that seeing this, he killed her out of anger. The exact words said to have been uttered by the appellant were thus not consistent. There was no reason or motive for the appellant to have an extrajudicial confession before P. Ws. 3 and 4 in the absence of any evidence to show that he could repose confidence in them. We regret to record that the learned trial Judge did not even take into consideration the admission made by P.W. 4 in his cross-examination that he had not made any statement before the Magistrate under Section 164 about the extrajudicial confession sale to have been made by the appellant as testified by him in the Court. The commission regarding such an important aspect on which the prosecution had sought to build its case besides the ocular testimony of P. W. 3, already, referred to could not be said to be inconsequential or unimportant in the context and the evidence of P. W. 4 with regard to the extrajudicial confession was to be discarded on this ground alone and there were other suspicious features to which reference has been made in this judgment.
9. In law, an order of conviction can be based on an extrajudicial confession if the evidence in this regard is clear and consistent, true and trustworthy. (See AIR 1985 S. C. 4S State of U. P. v. M. K. Anthony.) As has been laid down in AIR 1973 S. C. 343 Rahim Beg v. State of U. P. and AIR 1982 S. C 1595 Heramba Brahma and another v. State of Bombay to afford a piece of reliable evidence, extrajudicial confession must pass the test of reproduction of exact words, the reason or motive for confession and the person selected in whom confidence is reposed.
10. It would be seen from the evidence of P. W. 4 that he informed the Chowkidar about the occurrence and then went to the spot to see the dead body lying in the Sabai grass field with a bleeding mark on the head and with injuries on other parts of the body. His evidence would clearly show that P. Ws. had also gone to see the dead body. He had not testified that P. W. 3 had shown the spot to them. The learned counsel for the appellant has invited our attention to the statement of P. W. 3 recorded under Section 164 of the Code of Criminal Procedure wherein he had stated that after the Chowkidar came, they all ( including P. W. 3) searched for the wife of the appellant and after some time, saw the deceased lying dead inside the Amari bush. Unfortunate as it might seem, the attention of P. W. 3 had not been drawn to this by the learned defence counsel appearing at the trial. This would have completely demolished his evidence that he had gone to the spot in the previous night, had seen the assault by the appellant on the deceased and had heard the extrajudicial confession made by the appellant as in that case, he would have straight taken the villagers to the spot and would not have joined them in searching from place to place and ultimately found the dead body of the wife of the appellant lying at a place. This Court has pointed out on some occasions that the Court is not a. disinterested spectator of the contest between the prosecution and the defence and that should take an intelligent part in the proceedings and it should not allow any obscurity left out by the prosecution or the defence and should make an earnest endeavour to get at the truth. If and when the attention of P. W. 3 was not drawn to this by the defence, it was the duty of the Court to do so which the learned trial judge did not. It may not be fair for this Court to condemn P. W. 3 on this ground, but the other frailties and suspicious features in his evidence and his inconsistent statements at different stages would entail the rejection of bis evidence.
11. There was the evidence of the Investigating Officer and that of P. W. 4 that M. 0. 1 had been recovered from a place to which they had been led by the appellant. In the first place, there was no evidence pointing to the conclusion that the appellant was the author of concealment of M. O. I. The evidence of P. W. 3 that if was the weapon of attack could not be accepted. Another striking feature was the absence of any stains of blood in it which had been certified by the Chemical Examiner. Recovery of the weapon at the instance of the accused from a place accessible to all is no corroboration of a retracted confession, as held' by the Supreme Court in AIR 1983 S. C. 360 Kore N. Ghasi v. State of Orissa.
12. M. Os. II and III were the napkin and the banian respectively which were on the person of the appellant, as had been deposed to by P. W. 3 and this part of the prosecution evidence has been rejected. There was the evidence of the Investigating Officer (P. W. 6) and that of P. W. 4 that these two articles had been seized from the person of the appellant, as per Ext. 6, the seizure list. The appellant's denial of recoveries and seizures of M. Os. II and III from his person could not be accepted in view of the evidence of P. Ws. 4 and 6. It had been stated in Ext. 6 that these articles had suspected staining of blood in them. This, however, could not constitute substantives evidence. There was nothing in the evidence of the Investigating Officer (P. W. 6) that these articles had stains of blood although P. W. 4 had stated that M.O. II had been stained with blood, as noticed by him in the morning following the night of occurrence and this was at a pre-investigation stage. These articles had been sent for chemical examination, but strangely, the Investigating Officer did not take steps for having the clothes of the deceased chemically examined. On chemical and serological test, human blood was found in M. Os. II and III.
13. It would be seen from the report of the Chemical Examiner (Ext. 11) that the extent of stains of. blood had not been indicated therein. Nearly thirty years ago, in the case of Prabhu Babaji Nayle v. State of Bombay. AIR 1956 S. C. 51, the Supreme Court has observed, held and directed thus :
' The Chemical Examiner's report about the blood stains in slovenly and perfunctory and we have noticed with regret the same slovenliness in the reports of other Chemical Examiners in some other cases that have recently come before us. The Chemical Examiner's duty is to indicate the number of blood stains found by him on each exhibit 'and the extent of each stain unless they are too minute or two numeroud to be described in detail.
Merely to say that blood was detected on an exhibit, as this report states, is not enough. It may well lead to a miscarriage of justice compelling judges to acquit when they would have convicted, had the report been more revealing. We trust these observation will be brought to the notice of all Chemical Examiners in the country. Not that they all act like this. Many give full and detailed reports as they should.'
14. It is desirable that in such cases, the Chemical Examiner should indicate the number of blood stains and the extent of each stain. As held by the Supreme Court in 1981 S. C. C (Criminal) 622, Sile Singh v. State (Delhi Administration), while the finding of blood-stains on the clothes of the accused of the same blood group as that of the deceased would be an important circumstances to corroborate other evidence, in the instant case, inexplicably, the clothes of the deceased had not been sent for chemical examination and there was no other acceptable evidence from the side of the prosecution which could be corroborated by the finding of stains of human blood in M. Os. II and III Moreover, there was no evidence with regard to the number or extent of blood-stains in M. Os. II and III. Not touch reliance can be placed by, the prosecution on this circumstance a small blood-stains on the cloth of an agriculturist would hardly provide corroborating evidence. See AIR 1979 Supreme Court 1949 : 1979 Cri. L. J. 1310; Pohalya Motya Valvi v. State of Maharashtra. Mere recovery of a blood-stained articles is not enough as it can corroborate other evidence but cannot, by itself, sustain a charge of murder. See 59(1985) C. L. T. 180 1985 (I) O. L. R. 194 (Manju alias Mohan Das v. State.
15. We cannot lightly brush aside the criticism raised by the learned counsel appearing for the appellant that in the absence of evidence that M. Os. II and III seized from the person of the appellant had been kept properly, the finding of human blood by the Chemical Examiner could not safely be accepted against him as a guilt-pointing circumstance. We have already indicated that the. Investigating Officer had not taken steps for sending the clothes of the deceased for chemical examination. There was no evidence as to how the clothes of the appellant and the deceased had been kept after the seizures. It is necessary and desirable that the police officer recovering the articles of the accused with suspected stains of blood should immediately take steps to seal them and evidence should be produced that the seals were not tampered with till the articles were sent to the Chemical Examiner for analysis. In the absence of such precautions having been taken, it would be open to an accused to say that latter human blood had been put on the articles to implicate him. If the evidence as to sealing the articles is not produced, the Court may not place the same reliance on the discovery of blood-stains on the articles seized from an accused person as it would have done if necessary precautions had been taken.
16. There was another highly disquietying feature of which no notice had been taken by the trial Court. M. Os. 11 and III had been seized from the person of the appellant as per Ext. 6 dated September 21, 1979. These two articles were sent in a sealed, packet, for chemical examination by a forwarding letter (Ext. 10) of the Subdivisional Judicial Magistrate, Baripada, on August 26, 1980, nearly one .year after the seizures. This gross inordinate delay had not been explained. What a highly unsatisfactory state of affairs it was Such articles containing stains of blood should invariably be sent for chemical examination immediately after their seizures and not as had been done in the instant case. There was no evidence that these two articles., had been kept , properly sealed until they were sent for chemical - examination, The report of the Chemical Examiner was dated February 6, 1981, Thus M. Os. II and III had been examined by the Chemical Examiner and the Serologist nearly one and a half years after the recoveries and seizures of these articles. For all these reasons, no reliance can safely and properly be placed on the scientific finding that M. Os. II and III contained stains of human blood.
17. The appellant's plea was that while he and the deceased were returning from the market, Lodhas chased them and he ran 'away in one direction and later found when he came in the company of others in the next morning that his wife was lying dead. This plea had neither been substantiated nor even probabilised by any other circumstance or materials appearing in the evidence or by examination of any of the persons whose names had found a place in the statement of the appellant whom he claimed to have informed in the morning of the day following, but weakness or falsity in the defence cannot be a substitute for proof by the prosecution. If there be other evidence pointing to the guilt of an accused person, false defence may be an additional link. (See AIR 1981 S. C. 765 : Shankarlal Gyarasilal Dixit v. State of Maharashtra.)
18. Even as had been stated by the appellant at the trial, he and the deceased had been returning together in that fateful night, but if an accused has been seen for the last time with the deceased, it cannot, by itself, point to his guilt in the absence of other evidence, [See AIR 1979 C S. 1620 Lakhanpal v. Stats of Madhya Pradesh, 1982 S. C. C. (Criminal) 431 Gambhir v. State of Maharashtra, 1984 (2) Crimes 815 : 1985 (1) O. L. R. 4 : 1984 C. L. R. (Criminal) 220 Manto alias Sanilknmar Bhuyan v. State and 1983 Cri. L. J. 1854 (Calcutta) Mahadev Ghosh v. The State].
19. Circumstantial evidence, in order to sustain a criminal charge must stand the test of five golden principles termed so aptly as 'Panchshil' by the Supreme Court in AIR 1984 S. C. 1622 Sharad 'Birdhichand Sarda v. State of Maharashtra and in order to sustain a Criminal Charge, (I) circumstances from which the conclusion of guilt is to be drawn should . be fully established, (ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused and should not be explainable on any other hypothesis except that the accused is guilty, (iii) the circumstances should be of a conclusive nature and tendency, (iv) they should exclude every possible hypothesis except the one to be proved and (v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused. These five principles constitute the 'Panchshil' of the proof of a case based on circumstantial evidence, as observed and held therein. Judged in the light of these principles, the circumstantial evidence on which reliance was placed by the prosecution was far short of the mark and the evidence with regard to the extrajudicial confession could not be accepted.
20. We thus find that the order of conviction was absolutely unfounded on facts and for the aforesaid reasons, must be held to be misconcived in law. It must, therefore, be set aside.
21. The appeal is allowed and the order of conviction recorded against the appellant under Section 302 of the Indian Penal Code and the sentence passed against him thereunder are set aside. The appellant be set at liberty forthwith.
22. Copies of this Judgment shall be sent by the Registrar ( Judicial ) of this Court to the Chief Secretary to the Government of Orissa, Director-General of Police, Orissa and the Director & Chemical Examiner of the Government of Orissa, State Forensic Science Laboratory, Bhubaneswar, for their information.
D.P. Mohapatra, J.
23. I agree.