JUDGMENT
A. Pasayat, J.
1. The three appellants Isram Bariha, Sadarsingh Bariha and Sundarsingh Bariha (hereinafter described as “accused”) were tried for commission of offences punishable under Sections 302/34 and 201/34 of the Indian Penal Code, 1860 (in short, ‘I.P.C.’). They faced trial for allegedly having been responsible for the death of one Amarsingh Bar ha (hereinafter called the “deceased”).
2. Prosecution version sans unnecessary details is as follows On 28.9.1990. at about 7 A.M., the accused appellants throttled the deceased in Tipisorar jungle. Bansilal Bariha (P.W.I) lodged information at the Jonk Police Station indicating, inter alia, that on return home at midday, his mother told that his father, the deceased, had gone put but had not returned for a long time. Being apprehensive that some danger had befallen his father, he and his young brother Ganesh Bariha went out to search for their father They searched at different places and ultimately found the ridges of their land known as Tipisorar had been cut and a fishing net belonging to their father was lying there. Many footprints were noticed by them in the paddy fields and dragging marks were also there. Following the marks they went inside the jungle and found the dead body of their father. It was about 5 A.M. in the evening. They told the villagers about the death of their father. The matter was reported at the police station by P.W. 1 who stated that he doubted the involvement of accused Isram and his sons, the other two accused persons.
3. Seventeen witnesses were examined to further the prosecution case. The accused persons pleaded innocence. Case of the prosecution rested on circumstantial evidence.
The circumstances highlighted were :-
(a) the evidence of P.W. 13 who found sometime during the morning hours of the fateful day that the deceased and the accused persons were quarrelling:
(b) P.W. 14 stated to have been the accused persons going towards the tank for taking bath :
(c) It was also stated that a panch was convened where accused Sadarsingh Bariha made a confession to the effect that he and the other accused persons were responsible for the death of the deceased.
Taking the aforesaid circumstances to be conclusive, the learned Sessions Judge. Kalahandi at Bhawanipatna, found the accused persons guilty of the offences under Sections 302/34 and 201/34, I.P.C. and sentenced each one of them to undergo R.I. for life and 2 years’ R.I. respectively, with a direction that the sentences were to run cuncurrently.
4. In support of the appeal, Mr. R. K. Bose, learned counsel for the appellants. submitted that this being a case of circumstantial evidence. the prosecution has to establish that no other view is possible and the accused persons were responsible for the homicidal death. According to him, the requirements were not fulfilled and. therefore, the conviction as recorded is un sustainable. He submitted that alleged extra-judicial confession has no sanctity in law. Mr. S. C, Satpathy, the learned counsel for the State. supported the judgment stating that the circumstances clearly established the guilt of the accused.
5. We shall first deal with the plea relating to acceptability of the circumstantial evidence. When the case of the prosecution is based on circumstantial evidence, it has to establish that there is no missing link in chain of circumstances, which is complete and unerringly points at the accused to be the author of the crime. In a case depending largly on the circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. Suspicion, however strong cannot take the place of legal proof. The Court has a duty to be watchful to ensure that conjectures or suspicion do not creep in to substitute legal proof. Unless the various circumstances on the chain establish the accusations clearly and completely, and there is no scope even for entertaining a reasonable doubt about the innocence of the accused, conviction should not be made. It has to be borne in mind that in a case where evidence is of a circumstantial nature, the circumstances from which conclusion of guilt is to be drawn should, in the first instance, be fully established to be consistent only with the hypothesis of guilt of the accused. They should be of a conclusive nature and should be such as to exclude every hypothesis, but the one proposed to be proved. Mahajan J. (as the Hon’ble Judge was then) in Hanumant v. State of Madhya Pradesh : AIR 1952 SC 343, in this regard quoted a passage containing the warning administered by Baron Alderson to the Jury in Reg v. Hodge : (1938) 2 Law 227, which was as under :
” The mind was apt to take a pleasure in adopting circumstances to one another and even in straining them a little-, if need be, to force them to form parts of one connected whole and the more ingenuous the mind of the individual, the more likely was it, considering such matters, to over-reach and mislead itself, to supply some little link that is wanting to take for granted some fact consistent with the previous theories and necessary to render them complete.”
The passage was referred to in Shankarlal v. State of Maharashtra, AIR 1981 SC, 7658 and Jaharlal v. State of Orissa AIR 1991 SC 1388.
6. The star witness so far as the circumstantial evidence aspect is concerned is stated to be P.W. 13. This witness stated that on the morning hours of the fateful day he had noticed the accused persons carrying the deceased and accused Isram holding the neck of the deceased. He has given an explanation for not disclosing this fact for a pretty long time. He has stated that his father had advised him not to disclose this fact to anybody. He has accepted that he was present when the police arrived at the spot for making enquiries and also when the inquest was conducted. He even did not disclose about what he claimed to have seen at that stage. At a much later time, the claimed to have seen the accused and the deceased together. The explanation offered by him for not disclosing the matter to anybody casts suspicion on the veracity of his statement. He has not stated as to why he thought of making a belated disclosure after having remained silent for a considerable length of time. The circumstances highlighted by the prosecution with reference to his evidence falls short of the rigorous requirements necessary for recording a conviction on circumstantial evidence.
7. So far as the alleged confession before the Panch is concerned, there is wide Variation. P.W. 3 has stated that on being told that God will not forgive him if he told a lie, accused Sadarsingh admitted that he and other accused persons had murdered the deceased. P.W. 12, on the other hand, has stated that accused Sadarsingh told before the Panch that he along with his brothers dissuaded their father to murder the deceased, but his father insisted to murder him and he murdered him. Entirely different is the version of P.W. 16. He has stated that accused Sadarsingh told before .the Panch that his father had killed the deceased. Considering the aforesaid divergent versions, it would be unsafe to hold that there was an extra-judicial confession as to the killing. In any event, even if any extra-judicial confession is accepted to have been made by Sadarsingh, on the basis of his statement the co-accused persons cannot be convicted without anything more. The irresistible conclusion, therefore, is that the prosecution has squarely failed to establish the accusations against the accused-appellants. The conviction as recorded and sentence as awarded cannot be maintained and are set aside. The accused-appellants be set at liberty forthwith unless required to be in custody in connection with any other case.
P.K. Misra, J.
8. I agree.