JUDGMENT
B.K. Behera, J.
1. Charged under Section 302 of the Indian Penal Code for committing the murder of his wife in the evening of February 19, 1984, at Chordhara in the district of Sundargarh, the appellant has been convicted under Section 304, Part II of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of five years. The order of conviction has been based on extrajudicial confessions said to have been made by the appellant before P. Ws. 2 and 3, the recovery of a piece of firewood (M. O. I) in the course of investigation on production by the appellant’s father, who died before he could be examined at the trial and the fact that the deceased and the appellant had been residing together in their house.
2. Having heard the learned counsel for both the sides, I am of the view that the order of conviction based on unreliable and inadmissible evidence must be set aside for the reasons to follow.
3. It is not disputed at the Bar that the deceased had died a homicidal death in her house. There was no evidence that no ore had access to the house m which the appellant and the deceased lived during the night of occurrence. There was no material to indicate that the appellant and the deceased were the only persons residing in the house then.
4. Two co-villagers of the appellant, namely, P. Ws. 2 and 3, did not support the case of the prosecution in their examination-in-chief with regard to the extrajudicial confessions said to have been made by the appellant, but stated while being put leading questions by the prosecution under Section 154 of the Evidence Act that the appellant had admitted to have killed his wife While under cross-examination by the defence, they had testified that the appellant had not told them anything. Thus these two witnesses stood self-condemned by their own statements It is unfortunate that the trial Court has relied on their evidence which was thoroughly unreliable and untrustworthy. It was not proper on the part of the trial Court to have taken into consideration the evidence of P. W. 3 against the appellant without drawing his attention to the evidence of P. W. 3 when the appellant’s statement was recorded under Section 313 of the Code of Criminal Procedure Circumstances appearing in the evidence against an accused not put to him while he is under examination by the trial Court thereby causing prejudice to him cannot be used against him.
5. Evidence with regard to an extra judicial confession should curie from reliable sources and should be very carefully scrutinised before its acceptance. It is not to be accepted without examining the credentials of the witnesses, without ascertaining the words used, the reason or motive for making the confession and the person selected in whom confidence is reposed Apparently the learned Sessions Judge had not kept these salient principles in mind while judging the evidence of P. Ws. 2 and 3 which was unjustifiably accepted and made the foundation of the order of conviction.
6. I would like to keep on record a highly disquieting feature while recording the evidence of the Investigating Officer (P. W. 6). The prosecution had not sought to prove any contradictions in the evidence of P. Ws. 2 and 3 by drawing their attention to the statements made by them in the course of investigation under Section 161 of the Code of Criminal Procedure. But while the evidence of the Investigating Officer was recorded, some statements of P. Ws. 2 and 3 made by them to P we 6 in the course of investigation had been admitted in evidence. The learned Sessions Judge should have done well to keep in mind as to when and under what circumstances statements made to the Investigating Officer can be admitted in evidence. Section 162 of the Code of Criminal Procedure provides for it.
7. In the absence of evidence that M. O. I. was the weapon of attack, the seizure of M. O. I on production by the father of the appellant could not be a guilt-pointing circumstance against the appellant. The Investigating Officer (P. W 6) had testified that Karan Munda, father of the appellant, produced the piece of firewood stating that he had snatched it away from the appellant at the time of the occurrence. That part of the evidence of P. W. 6 with regard to the statement of the deceased father of the appellant was inadmissible in evidence being hit by Section 162 of the Code of Criminal Procedure. The learned trial Judge not only admitted this part of the evidence, but even chose to rely on it. This had been done in violation of the provisions contained in Section 162 of the Code of Criminal Procedure. No statement made by any person to a police officer in the course of investigation shall be used for any purpose except for eliciting contradictions in the evidence of the witnesses examined for the prosecution in the manner provided in Section 145 of the Indian Evidence Act or except when such statement comes within the purview of Section 7 or Section 32(1) of that Act. The statement by the deceased father of the appellant made to the investigating Officer that he had snatched away the piece of firewood from the appellant was clearly inadmissible in evidence and could not have been used against the appellant.
8. A Court of Sessions dealing with cases involving serious offences should keep itself informed about the fundamental principles of criminal jurisprudence and the legal procedures to be adopted at the trials. what has been stated in the foregoing paragraphs would give an indication what the trial had been conducted and concluded by the learned trial judge without proper application of mind.
9. For the foregoing reasons, it must be held that the order of conviction is unfounded and misconceived
10. In the result, I would allow the appeal and set aside the order of conviction and sentence passed against appellant. The appellant shall be set at liberty forthwith.