N.K. Das, J.
1. The appellant has been convicted Under Sections 302 and 201, Penal Code. He has been sentenced to undergo rigorous imprisonment for life for offence Under Section 302, IPC and R. I. for two years for offence Under Section 201, I. P. C, both the sentences are to run concurrently.
2. Prosecution case is that the deceased was the wife of the appellant. In the night of 11-3-1977 there was a quarrel between the two and the appellant dealt a blow with a Tangia on the back of the head of the deceased which resulted in her death. On the following morning the appellant sent information to his father-in-law PW 3 that his wife died of colic pain. PW 3 along with his relations came to the village of the appellant. The dead body of the deceased was buried on 13-3-1977 by those persons. The appellant had a on and a daughter. His son was living with PW 3 whereas the daughter was living with .the appellant. PW 3 went back to the village along with the daughter (PW 7) aged about six years. In the night, during meal time, PW 7 told PW 3 that the appellant caused the death of her mother by dealing a blow with an axe. PW 3 thereafter came down to the village of the appellant and informed the panchayat member PW 5 about the occurrence. Both of them went to the appellant and confronted the statement of PW 7. The appellant admitted before them that as the deceased abused him he assaulted her with the butt end of a Tangia on the back of her neck and she died as a result of the assault. He further stated that as nobody had seen the occurrence he concealed the fact of assault and intimated the relations that the deceased died of colic pain. The matter was reported to the Sarpanch PW 6 who. along with the ex-MLA, came down to the village of the appellant and held a panchayat. The appellant admitted before them that he had killed his wife and falsely gave out that she died of colic pain. The matter was reported to the police through PW3-After investigation, charge-sheet was submitted for offence Under Section 302 Penal Code.
The appellant denies to have caused the death of his wife. He further states that PW 7 was tutored by PW 3 to tell lies. He never made any confessional statement. The Sarpanch and the villagers threatened to assault him and he was forced to say under threat.
3. Prosecution relies on the extra-judicial confession said to have been made before PW 6 and others which has been retracted by the appellant and the testimony of PW 7 and PW 3. Besides this, there is no other evidence available on record in support of the prosecution case.
4. The doctor who examined the deceased found injuries on the backside of the head. He also found that there was rupture of the spleen. He has stated at one stage that the death was due to haemorrhage inside the head and in another stage he has stated that he cannot definitely say if the death was due to the rupture of the spleen. The prosecution case all along is that the appellant dealt a Tangia blow on the backside of the head of the deceased, but there is no material on record to show that there was any assault on the abdomen of the deceased or that the deceased fell down in such a position that the abdomen would have struck against any hard substance. Therefore, the doctor's evidence is not beyond doubtful circumstances as regards death of the deceased.
5. The extra-judicial confession is said to have been made before PW 6 and others and it transpires from the evidence of PW 3 that the Gramrakshi was also present. The defence plea is that he was forced by the Sarpanch and other villagers to say that he had killed his wife. The circumstances reveal that PW 3 went to his village after burying the deadbody. Therefore he came back on the next day to the village of the appellant and met the Panch member. It is said that the appellant made extra-judicial confession before the Panch member, and then they went to the Sarpanch and an ex-MLA was also called, The Sarpanch says that his house is at a long distance from that place and the Gramrakshi was present when the appellant was asked to make the confessional statement. The circumstances explained by the prosecution clearly lend support to the defence plea that the extra-judicial confession cannot be said to be fully voluntary. This fact also can be found from the circumstances which will be dis-, cussed hereafter,
6. PW 7 is a child of six years of age. While the Sessions Judge examined her before recording her statement, it has been noted that she was not able to give answers properly but the Sessions Judge made an impression that on the whole she was giving rational answers. In her examination-in-chief, she says that she, told her grandfather that her father killed her mother. But in cross-examination she states that her grandfather asked her to state before the court that her father killed her mother. When further question was put to her that her father did not assault the mother, she remained silent and did not give any answer. She was further asked that she was telling lies on being tutored by the grandfather, but she remained silent and did not answer. Therefore, the evidence much relied upon by the prosecution that PW 7 is an eye-witness and her evidence is to be acceptable has no basis. No reliance can be placed on such type of evidence in a case of murder. Therefore, the story that after hearing from PW 7 in his place PW 3 came down back to the village of the appellant and there a Panchayat was held and the appellant made a confessional statement before the Panchayat also appears to be very much doubtful. As the very basis on which PW 3 got information becomes unworthy of credit, the subsequent evidence also becomes doubtful.
7. Even assuming that there was an extra-judicial confession which can be acceptable, this itself is not sufficient for the conviction of the appellant unless it is supported by other materials on record. In the instant case even if we accept the extra-judicial confession, it would not be sufficient for conviction of the appellant, inasmuch as there is no material to support the same.
Our ultimate conclusion is that the prosecution has failed to establish the guilt of the appellant and charges levelled against him have not been established.
8. In the result, the appeal is allowed. The conviction and the sentence passed against the appellant are set aside and he is acquitted of the charges levelled against him. The appellant be set at liberty forthwith. An intimation of acquittal be sent to the jail authority immediately,
J.K. Mohanty, J.
9. I agree.