B.N. Misra, J
1. The three appellants In this jail criminal appeal have been convicted under Sections 302/34, 457/34 and 380/34 I.P.C. Each one of them has been sentenced to imprisonment for life for the offence under Section 302/34 I.P.C., rigorous imprisonment for two years for the offence under Section 457/34 I.P.C. and rigorous imprisonment for four years for the offence under Section 380/34 I.P.C. The sentences have been directed to run concurrently.
2. The prosecution case may be briefly stated. Deceased Megha Behera lived in village Pabitrapur with his wife, sons and daughters. On the night of Saturday, 15-1-1977, all the family members of deceased Megha Behera went to village Haripur, situated at a distance of one kilometre from Pabitrapur, to witness Rasa Jalra. Deceased Megha Behera stayed behind in his house. The house was locked by the deceased's wife and the deceased who slept on the verandah adjoining house kept the key under his pillow. At about 5 a. m. on 16-1-1977 the family members of the deceased returned home and found that the deceased was lying dead in a pool of blood, the house had been broken open and from inside the house from a tin suitcase Rs. 1000/- in cash had been looted. On hearing the cries of the inmates, P. W. 4 and other co-villagers came to the house of the deceased and found the deceased lying dead. P. W. 4 went to Pallahara Police Station and lodged F.I.R. Ext. 6 at about 9.30 a. m. with P. W. 14, who was then working as the officer-in-charge of the Police Station. P. W. 14 registered the present case under Sections 302, 457 and 380 I.P.C. After completion of investigation charge sheet was submitted against the three appellants and accused Rabi Naik. All four of them were charged under Section 302/34, 457/34 and 380/34 I.P.C. and put on trial.
3. The defence plea is one of complete denial. In his statement recorded under Section 313 Cr. P.C. appellant Dhaneswar has stated that P. Ws. 1 and 9 have falsely implicated him at the instance of the police and that P. W. 9 is on inimical terms with him as he was a witness in a case instituted against the son-in-law of P. W. 9. Dhaneswar has also denied that he had made any confession before the Magistrate as per Ext. 4. In his statement before the court appellant Megha has stated that he has been falsely implicated in the case as he was a witness against the son of P.W. 1. At the trial 14 witnesses were examined on behalf of the prosecution and none on behalf of the defence. The learned Sessions Judge who tried the case found the appellants guilty, convicted and sentenced them as noted above. Accused Rabi Naik was found not guilty and acquitted of all the charges.
4. P. W. 5 is the doctor who had conducted post-mortem examination on the dead body of Megha Behera on police requisition on 17-1-1977. He had found ten external injuries and three internal, injuries as described by him in the post mortem report, Ext. 2. The injuries on the deceased were ante mortem in nature and cause of death was shock and hemorrhage as a result of neck and head injuries. Ext. 3 is the opinion of P. W. 5 on police requisition that the injuries on the deceased could have been caused by the axe. M. O. II. The evidence of P. W. 5 conclusively establishes that the death of the deseased was homicidal in nature and that the injuries on the deceased could have been caused by M. O. II.
5. There is no direct evidence against the appellants. The prosecution case rests on circumstantial evidence. It was pointed out in AIR 1976 SC 947 : 1976 Cri LJ 679 Chandmal v. State of Rajasthan (Para 15):
It is well settled that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests. Firstly, the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. Secondly, those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. Thirdly, the circumstances, taken cumulatively, should form! a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. That is to say the circumstances should be incapable of explanation on any reasonable hypothesis save that of the accused's guilt.
We would now proceed to examine the circumstances appearing against the three appellants to see whether the tests indicated in the aforesaid decision of the Supreme Court are satisfied in the present case.
6. The following circumstances are relied upon by the prosecution to bring home charges against the appellants.
(i) The first circumstance is that the three appellants were seen sitting on the Pinda of appellant Kanhu Naik in the evening of the night of occurrence. It may be noted that appellant Kanhu Naik belongs to village Siarimalia while appellants Dhaneswar and Meghu belong to village Barkot. district Sambalpur. P. Ws. 1, 3 and 4 belong to village Siarimalia. According to P. W. 4, Siarimalia is three miles away from village Pabitrapur where the occurrence took place. P. W. 2 belongs to village Khajurihaman and he has stated that on the day of occurrence at about 4 p. m. he had seen appellants Dhaneswar and Meghu passing through his village and proceeding towards village Siarimalia. P. W. 1 has stated that on the day of occurrence he wanted to see the festival at Haripur and so he went to Pana Sahi to call two or three persons to guard his house during his absence. On the way he found appellants Dhaneswar and Meghu sitting on the Pinda of appellant Kanhu Naik. According to P. W. 1, the three appellants are notorious criminals and, therefore, he warned the villagers to be careful that night. P. W. 1 has further stated that on his way to the festival, near a hill he found two persons who on seeing him tried to conceal themselves. He flashed his torchlight and found that the two persons were appellants Meghu and Dhaneswar. The former was armed with a lathi and the latter with a Tangia. In cross-examination P. W. 1 was confronted with his statement before the I. O., P. W. 14 wherein he had not stated that on his way to the festival ho had seen two persons, that on flashing his torchlight he had recognised them to be appellants Meghu and Dhaneswar and that the former was armed with a lathi and the latter with a Tangia. This is a very serious omission and on that ground no reliance can be placed on his statement in court that he had seen appellant Dhaneswar and Meghu near a hill being armed with lathi and Tangia. However the other part of his statement that he had seen appellants Meghu and Dhaneswar sitting on the Pinda of appellant Kanhu Naik is corroborated by P. W. 4 who has stated that on the day of occurrence which was a Saturday he had seen appellants Meghu and Dhaneswar sitting in the house of appellant Kanhu in village Siarimalia and they were talking with each other. P. W. 3 who was declared hostile by the prosecution has stated that he had seen appellants Meghu and Dhaneswar stand-ins in the middle of village Siarimalia at about 5 to 6 p. m. on 15-1-1977. The evidence of P. Ws. 1, 3 and 4 does establish the presence of the three appellants in village Siarimalia on the day of occurrence. But presence at village Siarimalia on the day of occurrence cannot by itself lead t0 the conclusion that the three appellants had killed the, deceased in village Pabitrapur and removed cash of Rs. 1000/- from-his house on the night of occurrence.
(ii) The next circumstance is the recovery and seizure of a hundred-rupee note bearing No. AB/76-767130 on 17-1-1977.. M. O. I, by the I. O. (P. W. 14) from P. W. 11 vide seizure list, Ext. 1. P. W. 11 was working as a midwife attached to Khajaurikhaman Sub-Centre on 17-1-1977. Her husband maintains a shop in that village. P. W. 11 has stated that on 17-1-1977 appellant Dhaneswar came to her shop to purchase Bidis, matches and Chan a Chur mixture, These articles were supplied to Dhaneswar by P.W. 11's husband. The three articles were worth 0,12.0 annas only. Dhaneswar gave a hundred-rupee note (M. O. I.) to P. W. 11's husband and the latter returned to Dhaneswar Rs. 99.4.0 annas. Later on the I. O., P. W. 14 seized the said note from P. W. 11 vide seizure list Ext. 1 in the presence of P. Ws. 1 and 2, witnesses to the seizure. P. W. 14 has stated about the seizure and the fact of seizure of M. O. I from P. W. 11 has been supported by P. Ws. 1 and 2. The evidence of P. Ws. 1, 2, 11 and 14 establishes that appellant Dhaneswar had offered the hundred-rupee note (M. O. I.) to P. W. 11's husband for purchase of article worth 0.12.0 annas only. But this fact does not lead to the conclusion that M. O. I is the note which appellant Dhaneswar had stolen from the house of the deceased on the night of occurrence particularly when it does not contain any special mark of identification. The fact that Dhaneswar had a hundred rupee note with him on 17-1-1977 is not enough to establish that he had stolen it from the house of the deceased.
(iii) In support of circumstances (i) and (ii) discussed above, prosecution also relies on the confessional statement of appellant Dhaneswar recorded in Ext. 4. This statement was recorded by the Magistrate, P. W. 6 on 19-1-1977. P. W. 6 has stated that he had observed all the formalities of law and after due warning had recorded the statement of appellant Dhaneswar. Dhaneswar's statement as per Ext. 4 is to the effect that on the night of occurrence along with appellant Maghu Patra he was proceeding to the house of his father-in-law in village Ludunga when on the way they saw a bear and out of fear they spent the night in the house of appellant Kanhu and that he had purchased two bundles of Bidis and matches and had given a hundred-rupee note for change to the shopkeeper at village Khajaurikhaman. On a careful scrutiny of the statement of Dhaneswar as recorded in Ext. 6 it is seen that it is not at all a confessional statement. As stated by Lord Atkin in Pakala Narayan Swami's case AIR 1939 PC 47 : 1939-40 Cri LJ 364, a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. In his statement as recorded in Ext. 6 Dhaneswar has neither admitted in terms the offences nor substantially all the facts which constitute the offences. Therefore, Ext. 4, must be ruled out of consideration.
(iv) The next circumstance is the seizure of the axe (M. 0. II) on 18-1-1977 by the I. O., P. W. 14 from appellant Kanhu Naik as per seizure list, Ext. 7. It has been noted in Ext. 7 that appellant Kanhu had produced M. O. II before the I. O. after taking it out from the kitchen in his house. No blood has been detected on M. O. II. It is well known that axe is an article of common use in village households. Therefore, production of the axe (M. O. II) by appellant Kanhu before the I. O. cannot be held to be a circumstance incriminating him with the offences. The opinion of the doctor, P. W. 5 that the injuries on the deceased could have been caused by M. O. II cannot also be held against appellant Kanhu.
(v) The next circumstance relied upon by the prosecution is the presence of human blood on the Dhoti (M. O. IV) seized on 18-1-1977 by the I. O., P. W. 14 from appellant Maghu Patra vide seizure list Ext. 8. P. W. 9 is a witness to the seizure. As per the reports of the Chemical Examiner and the Serologist, Exts. 20 and 21 respectively, M. O. IV was stained with human blood, but it was insufficient to establish the blood group. The presence of human blood on the Dhoti seized from appellant Meghu Patra does not establish that he was the murderer of deceased Megha Behera.
7. An analysis of the aforesaid circumstantial evidence relied upon by the prosecution does not lead to an unerring certainty that the appellants were responsible for the murder of the deceased and the theft in his house. Merely because the appellants have a criminal background, in the absence of legal proof they cannot be held guilty of the offences alleged to have been committed by them. Neither freak inferences nor suspicion can take the place of legal proof. AH the circumstances established by the prosecution in this case are quite compatible with the innocence of the appellants. Hence we hold that the prosecution has failed to bring home the charges against the appellants.
8. This appeal is accordingly allowed. The conviction and sentence of the appellants are set aside and they are acquitted of the charges under Sections 302/34, 457/34 and 380/34 I.P.C. They be set at liberty forthwith provided their detention in jail is not required in connection with any other case.
P.K. Mohanti, J.
9. I agree.