Extra Judicial Confessions should be proved like any other facts and in accordance with the law. : Orissa High Court
When the prosecution heavily relies on a purported extrajudicial confession given by the defendant:  (i) An extrajudicial confession is insufficient proof on its own. The court must study it with extra attention and caution.  (ii) It should be given voluntarily and truthfully.  (iii) It should instil trust.  (iv) If an extrajudicial confession is supported by a chain of credible circumstances and is further corroborated by other prosecution evidence, it has additional credibility and evidentiary value.  (v) In order for an extrajudicial confession to be used as the foundation for a conviction, it must be free of material inconsistencies and inherent improbabilities. (Vi) The statements must be proven like other facts These few points were made by Justice Kumari.K.Panda and Justice S.K.Panigrahi of the Orissa High Court in matter of Dama Pradhani versus State of Orissa [ CRLA No.36 of 2011]  The order was passed regarding the facts the substratum of the case placed before us, stripped of superfluous information, remains that one Rama Dharua’s (informant) niece Ghulikhai @ Nidra Majhi has been staying with him for the past eight years after the death of her mother. The family ate dinner and went to bed on December 1, 2008. The family discovered their niece missing early in the morning, much to their dismay. They explored the hamlet and questioned their relatives, but they were unable to locate their niece. As a result, on December 2, 2008, the informant reported the incident to the police, and a FIR was filed. On the night of December 3, 2008, his son-in-law, Dullabha Majhi, who was staying with the informant owing to the harvesting season, told him that one Dama Pradhani (appellant) of his village had confessed to him that he had murdered the deceased and hid the body. As a result, the informant accused Dama Pradhani of murdering the dead and informed the authorities. The I.I.C., Patnagarh P.S. registered the P.S. Case No.239/2008 under Section 302 read with Section 201 of the I.P.C. based on the aforementioned written report of the informant. The Investigating Officer went to the village during the course of the investigation and arrested the appellant. The appellant allegedly admitted to strangling the deceased and concealing the body in Gadiajore Nala while in police custody. The body of the deceased was discovered floating upon arrival at the Gadiajore Nala and was quickly collected. An inquest was held. The deceased’s body, as well as a lungi found tied around her neck, were sent for post-mortem testing.The appellant was also sent to the hospital for a medical checkup, during which a sample of his sperm was taken. After that, the appellant was arrested and taken to court. The Investigating Officer also took possession of the deceased’s clothing, as well as other belongings and the lungi. A charge sheet was filed against the defendants when the inquiry was completed. The appellant’s counsel contends that there was no eye witness to the incident and that the prosecution’s case is exclusively based on circumstantial evidence. The prosecution has failed to present coherent and trustworthy evidence to show the circumstances beyond reasonable doubt, despite the fact that the extrajudicial confession led to the discovery of the deceased corpse. He claims that P.W.9, the witness before whom the accused allegedly gave the extrajudicial confession, is linked to the deceased. The location where the body was discovered is an open area that is open to the public. As a result, the evidence presented on the above score loses its weight. The learned Counsel for the State has argued that the Medical Officer’s report (Exhibits 5 and 6) demonstrates that the deceased died of homicide as a result of lung strangulation (M.O.IX). He also relied on the testimony of P.W.9, in front of whom the accused supposedly confessed. He further claims that the recovery of a dead corpse from the hiding site, as well as the M.O.IX obtained under Section 27 of the Evidence Act, thoroughly corroborates the prosecution’s case, leaving no doubt that the accused is the perpetrator of the crime. Court considered Ramreddy Rajesh Khanna Reddy v. State of Andhra Pradesh, where the Hon’ble Supreme Court held that , It is now well-settled that, in order to base a conviction on circumstantial evidence, the prosecution must establish all of the pieces of incriminating circumstances by reliable and clinching evidence, and the circumstances so proved must form such a chain of events as to permit no other conclusion than that the defendant is guilty. There is no alternative explanation for the situation. It is widely established that suspicion, no matter how grave, cannot substitute for proof, and that courts must exercise extreme discretion in convicting an accused only on the basis of circumstantial evidence. 
Dama Pradhani vs State Of Orissa on 12 April 2021 Orissa High Court Dama Pradhani vs State Of Orissa on 12 April 2021 HIGH COURT OF ORISSA: CUTTACK CRLA No.311 Balangir at Patnagarh in Sessions Case No.80 309 Dama Pradhani ... Appellant Versus State of Orissa ... Respondent For Appellant :M s. B.S. Das D. Marandi L.C. Behera and S. Sahoo Advocates For Respondent : Mr. Sk. Zafarulla Additional Standing Counsel PRESENT THE HONOURABLE KUMARI JUSTICE S. PANDA AND HON BLE SHRI JUSTICE S. K. PANIGRAHI Date of Hearing 16.03.2021 Date of judgment 12.04.2021 S. K. Panigrahi J 1. The present appeal has been directed against the judgment of conviction and order of sentence dated 08.07.2010 passed by the learned Adhoc Additional Sessions JudgeBalangir at Patnagarh in Sessions Case No.80 309 whereby the appellant has been convicted for commission of offences punishable under Sections 302 201 of the I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs.2 000 and in default further to undergo R.I for a period of six months under Section 302 of I.P.C. and to undergo R.I. for two years and to pay a fine of Rs.1 000 . Upon further default to undergo R.I. for three months under Section 201 of the 2. Shorn of unnecessary details the substratum of the matter presented before us remain that one Rama Dharua sniece Ghulikhai @ Nidra Majhi was staying with him after the death of her mother for the last eight years. On 01.12.2008 the family had dinner and retired to bed. Early in the morning to the utter dismay of the family they found that their niece was missing. They searched in the village and inquired with their relatives but failed to trace the whereabouts of their niece. Accordingly on 02.12.2008 the informant reported the same to the police and an FIR was registered. On the night of 3.12.2008 his son in law one Dullabha Majhi who was living with the informant due to the harvesting season confided him that one Dama Pradhaniof his Indian Kanoon Dama Pradhani vs State Of Orissa on 12 April 2021 village had confessed before him that he had committed the murder of the deceased and concealed the dead body. The informant therefore suspected Dama Pradhani to have murdered the deceased and passed on the information to the Police. Premised on the above written report of the informant the I.I.C. Patnagarh P.S. registered the P.S. Case No.239 2008 under Section 302 read with Section 201 of the I.P.C. During the course of investigation the Investigating Officer proceeded to the village and took the appellant into his custody. While in police custody the appellant allegedly confessed to have committed the crime by strangulating the deceased and having concealed the dead body in Gadiajore Nala. Upon arrival at the Gadiajore Nala the body of the deceased was found floating and the same was immediately recovered. Inquest was conducted. The body of the deceased along with a lungi that was found tied around her neck was sent for post mortem examination. The appellant was also sent for medical examination where a sample of his semen was seized. The appellant was then arrested and forwarded to the court. The Investigating Officer also effected seizure of items of clothing of the deceased along with other articles and the lungi. After completion of investigation charge sheet was submitted against the accused 3. The trial court thereafter framed three issues. Further to bring home the charges the prosecution examined as many as eighteen witnesses. Succinctly P.Ws.1 4 and 5 are the co villagers and witnesses to the disclosure statement of accused under Section 27 of the Evidence Act made to the Investigating Officer as well as witnesses to the inquest. P.Ws.2 3 and 6 are the co villagers present at the time of recovery of the dead body from the Gadiajore Nala. Thus P.W.1 to P.W.6 are co villagers and witnesses to either the disclosure statement of the accused or to the recovery of the deceased s body from the Gadiajore Nala. The said P.Ws.2 and 6 brought out the dead body from inside the water of the Nala on the instruction of the police. P.W.7 is the informant who is the uncle of the deceased. P.W.9 is the son in law of the informant and witness to extra judicial confession of the accused. P.W.8 is the Medical Officer who conducted the post mortem examination of the dead body. P.Ws.11 and 12 are two independent witnesses who were declared hostile. P.Ws.10 and 13 are the police officers and witnesses to the seizure of S.D. Entry No.308 and M.M.R. No.19 08 of Patnagarh P.S. P.W.14 is the scribe of the reportExtra judicial concession made by the accused before P.W.9.Recovery of dead body of deceased along with lungiby means of which the deceased was strangulated on the information furnished by the accused while in custody Evidence of P.W.1 that the seized lungi belongs to accused so also the evidence of the I.O. P.W.17 that accused disclosed the lungi belongs to him Motive. While doing so the trial court has proceeded to hold that these circumstances establish a complete chain of circumstances which prove beyond reasonable doubt that the appellant has committed the murder of the deceased 7. Upon perusal of the evidence produced before the trial court with regard to the first circumstance i.e. the extra judicial confession indicated hereinabove the evidence of P.W.9 has been relied upon. It is observed that P.W.9 states that he being the son in law of the informant happened to be present in the house of the informant for the purpose of harvesting paddy since more man power is required during such harvesting season. According to him the deceased was missing from the house since the morning of 02.12.2008. On 03.12.2008 at the evening time while he was sitting in the verandah he saw the appellant coming towards him. He chit chatted with the appellant about household affairs and then asked about the deceased. The appellant then disclosed to him that after committing her murder he had concealed the dead body. P.W.9 also states that the appellant confessed that he had love affair with the deceased. On the same night after dinner P.W.9 disclosed the above information before his mother. According to P.W.9 the brother of appellant is a sworn friend of his father in lawand he addressed him as uncle. During cross examination this witness has stated that since eight days prior to the incident he was at the Indian Kanoon Dama Pradhani vs State Of Orissa on 12 April 2021 house of his father in law and he knows the appellant since the date of his marriage as the appellant used to visit the house of his father in law. When the appellant had visited P.W.9 the witness was admittedly alone. In a similar light P.W.7 the informant who is the father in law of P.W.9 reveals that on 2.12.2008 he had lodged a missing report at Patnagarh P.S. regarding the missing of deceased. On the night of 03.12.2008 P.W.9 told him regarding the extra judicial confession made by the appellant before him. His evidence further reveals that on the morning of 04.12.2008 they searched for the dead body of the deceased and could not recover the same. P.W.7 further deposed that the appellant had love affairs with the deceased 8. Upon examining the position of law regarding extra judicial confessions it is relevant to take note of the judgment of the Hon ble Supreme Court in the case of Tejinder Singh v. State of Punjab1wherein the Court has held that extra judicial confessions constitute a weak form of evidence and based on such evidence no conviction can be sustained. In support of this proposition the Hon ble Supreme Court has relied upon its earlier judgement in the case of Pancho v. State of Haryana2 which is extracted hereunder 16. The extra judicial confession made by A 1 Pratham is the main plank of the prosecution case. It is true that an extra judicial confession can be used against its maker but as a matter of caution courts look for corroboration to the same from other evidence on record. In Gopal Sah v. State of Bihar this Court while dealing with an extra judicial confession held that an extra judicial confession is on the face of it a weak evidence and the courts are reluctant in the absence of a chain of cogent circumstances to rely on it for the purpose of recording a conviction. We must therefore first ascertain whether the12 SCC 503The extra judicial confession is weak evidence by itself. It has to be examined by the court with greater care and caution ii) It should be made voluntarily and should be truthful iii) It should inspire confidence iv) An extra judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other 2012) 6 SCC 403 v) For an extra judicial confession to be the basis of conviction it should not suffer from any material discrepancies and inherent improbabilities vi) Such statement essentially has to be proved like any other fact and in accordance with law 10. From the above evidence of P.Ws.9 and 7 it is noticed that the appellant was known to P.W.9 since the date of his marriage and on 3.12.2009 evening the accused had come to meet him. Another fact that needs to be borne in mind is that P.W.9 is related to deceased. So it does not seem plausible that the appellant would have made such an extra judicial confession before him and such doubts upon the reliability of the evidence of P.W.9 cannot be dispensed with. As a corollary the evidence of P.W.7 who is a hearsay witness would consequentially loose credence. This extra judicial confession does not inspire any confidence and therefore cannot be relied upon. Given the fact that there was no enmity between the appellant and neither P.W.9 nor the appellant had any inimical term with the family member of the informant. So in such circumstances the fact that the appellant made an extra judicial confession made before P.W.9 seems improbable and any corroboration thereof would have to be tested on the anvil of "complete chain of circumstances" which must be examined very cautiously 11. The next circumstance relied upon by the learned Trial Court is the recovery of the dead body of deceased and M.O. IXon the basis of the information furnished by the appellant while in custody 12. On perusal of record it is found that Ext.2 is the statement of appellant which was recorded by P.W.17 the I.O. in presence of P.Ws.4 and 5 i.e. co villagers while the appellant was in his custody In the said statement the appellant has narrated that he had an affair with the deceased and they had made a plan to elope from their respective houses on the fateful night. He also states that he committed the murder by strangulating the deceased by means of a lungi and carried the dead body Indian Kanoon Dama Pradhani vs State Of Orissa on 12 April 2021 to Gadiajore Nala and concealed it there. Ext.1 is the inquest report which was prepared by the I.O in presence of witnesses P.Ws.1 3 4 5 and 6. In the said report it has been mentioned that a green colour check lungi was tied around the neck of the deceased and there was injury ligature mark encircling the neck. Ext 9 is the seizure list in respect of seizure of the wearing apparels and other articles including the green black check lungi 13. In Jaffar Hussain Dastagir v. State of Maharashtra4 the Hon ble Supreme Court held that under Section 25 of the Evidence Act no confession made by an accused to a police2 SCC 872 officer can be admitted in evidence against him. An exception to this is however provided by Section 26 of the Evidence Act which makes a confessional statement made before a Magistrate admissible in evidence against an accused notwithstanding the fact that he was in the custody of the police when he made the incriminating statement. Section 27 of the Evidence Act is a proviso to Section 26 of the Evidence Act and makes admissible so much of the statement of the accused which leads to the discovery of a fact deposed to by him and connected with the crime irrespective of the question whether it is confessional or otherwise. The essential ingredient of the Section is that the information given by the accused must lead to the discovery of the fact which is the direct outcome of such information. Secondly only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused. Thirdly the discovery of the fact must relate to the commission of some offence. Section 27 of the Evidence Act provides that no such information which leads to discovery of fact in consequence of information received from a person who is not only an accused of the offence but also while in the custody of the police officer can become a relevant fact which can be proved. It is trite in law that the confessional part of a crime incorporated in a statement even if recorded in the statement under Section 27 of the Evidence Act such confessional part has to be discarded due to being barred by the provision in Section 25 of the 14. Therefore even if it can be accepted that the statement of the appellant led to the discovery of the body of the deceased and hence might be admissible it is important to note that only that part of the statement which led to the discovery of the body of the deceased can be admitted. Every other information presented in the statement which are inculpatory and confessional including the confession of allegedly committing the offence the alleged usage of the lungi to commit said offence the existence of the love affair have to be completely barred and cannot be relied upon under any circumstances. That being the position of law from Exhibits 2 1 and 9 only the fact leading to discovery of dead body is to be read in evidence 15. It is further seen that doubt is casted upon the usage of the lungi as the means by which the deceased was strangulated upon examination of P.W.8 s testimony. P.W.8 is the doctor who conducted the post mortem examination of the dead body of the deceased on 05.12.2008 upon police requisition. He has deposed that the deceased was a young female whose both pinna were eaten by aquatic animals. The deceased s face was conjected with petechia haemorrhage. A lungi of length 5.7" and width 42" was made into a rope and found tied around the neck. The knot of the lungi was on the back side of the neck. A ligature mark of width 2 C.M. was found below the thyroid cartilage encircling the entire neck horizontally. There was ecchymosis around the mark and the subcutaneous tissue was also with ecchymosis. There was no fracture present on the body. The Indian Kanoon Dama Pradhani vs State Of Orissa on 12 April 2021 viscera were preserved. He has opined that the death was due to strangulation by lungi resulting in asphyxia and venus congestion. He has further opined that as the vagina allowed two fingers the same indicates that the deceased had regular sexual intercourse. He states that the time since death was within 72 to 96 hours prior from the time of post mortem examination. He also deposed that the ligature mark found in the neck was ante mortem in nature and the strangulation was a homicidal one. However this witness during the cross examination has presented an entirely different picture. During his cross examination P.W.8 has ruled out the death of deceased to be caused due to hanging. Rather he reiterated his opinion that the death of the deceased is due to strangulation. Also he has stated that the lungi which was allegedly found on the neck of dead body at the time of post mortem examination was sent back to the Police. What is taken note of by us is that he states in his cross examination that there was no identifying mark affixed to the lungi in question with regard to which he states that he had endorsed on a piece of paper after signing on the lungi. In his cross examination P.W.8 also states that it is possible that the ligature mark found on the neck could also be inflicted by some other cloth having a length similar to the lungi which was examined He further reveals that the type of injury in question can be caused by shaping any cloth into a rope all of which will leave a ligature mark 16. While it is not disputed that the body of the deceased was found with a green check lungi tied around the neck. There exists sufficient doubt as to whether it was this particular lungi that caused the death. Moreover it becomes even more important to examine whether the lungi can be linked to the appellant which has been examined threadbare 17. Coming to the next circumstance regarding identification of lungi tied around the neck of the dead bodyis concerned it is the evidence of P.W.1 wherein he says the lungi tied round the neck of the deceased belonged to the appellant. P.W.17 was the Investigating Officer in the case and states during his cross examination that at the time of interrogation the appellant had made a disclosure to having concealed the dead body after strangulating the deceased. Having received such a statement P.W.17 thereafter proceeded to the place as disclosed by the accused i.e. Gadiajore Nala. He noticed that there were no marks of violence at the place of occurrence the threshing floor Noticeably the place of occurrence has been said to be a public place which is accessible to all. The dead body was floating at the time of arrival of the Investigating Officer in the Gadiajore Nala. He further deposed that M.O.IX is a green lungi which was found shaped like a rope and tied around the neck of the deceased. He states that the appellant disclosed to him during interrogation that the green lungi belonged to him which has been exhibited as M.O. IX and it was being used by the appellant prior to the date of the incident. P.W.8 reveals in his testimony that when the dead body was recovered a green check lungi was found tied around the neck of the deceased. Apart from the prosecution s version that the accused has admitted that the lungi in question belonged to him a statement which as has been established above cannot be admitted as evidence and thus cannot be relied upon sufficient evidence has not been led whatsoever to establish or link the lungi with the 18. As regards the motive of the appellant behind the crime it is the case of the prosecution as disclosed by P.W.7 that the appellant and deceased had a love affair and when marriage of the appellant was arranged with another girl ire was caused between them due to which the appellant Indian Kanoon Dama Pradhani vs State Of Orissa on 12 April 2021 killed the deceased. P.W.1 deposed attesting to the same. However upon perusal of the defence witness in this case D.W.1 who is a co villager who states that the P.W.1 told him that there was a love affair between the deceased and the appellant which he had informed the police about However in his cross examination he states that there was no such marriage proposal being canvassed. It is also material to note that P.W.1 has stated in his cross examination that he was not aware about the relationship of the appellant with the deceased prior to the incident which is a material discrepancy which has not been gone into by the court below. P.W.4 Chandrama Majhi has also categorically stated in her cross examination that she was not aware about any love affair between the appellant and the deceased 19. The prosecution had relied on the report of chemical examiner marked as Ext 19 wherein it is noted that the seized undergarment of the deceased indicated presence of blood and semen which was deemed to be indicative of a physical relationship being present between the appellant and the deceased. The prosecution then attempted to spin a story wherein it was alleged that the deceased was unhappy with the talks of marriage of the appellant with another girl given their physical relationship which led to the scuffle and ultimately to her death. However the trial court has ignored that P.W.17 as the Investigating Officer of the present case also wrote a letter to the forensic laboratory dated 4.12.2008 suggesting therein that the appellant had sexual intercourse with the deceased on the way at the threshing floor of Buthi Dharua of the village and thereafter the appellant had tied the lungi on the neck of the deceased strangulating her causing death. Based on that suspicion the Investigating Officer had sent the underwear of the accused for forensic examination. However the forensic laboratory through their report dated 2.4.2009 have opined that an examination of the underwear of the accused shows the absence of semen stains on it and therefore the possibility of any intercourse was ruled out 20. In the instant case there are no eye witness to the occurrence and prosecution case solely rests on the circumstantial evidence.In the case of Sharad Birdhichand Sarda v. State of Maharashtra5 the Hon ble Supreme Court had laid down indicative parameters to keep in mind while dealing with cases where the prosecution version is based solely on the basis of circumstantial evidence. It has held that the following conditions must be fulfilled before a case against the accused can be said to be fully established. Namely the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must or `should and not `may be established the facts so established should be consistent only with the hypothesis of the guilt of the accused that is to say they should not be explainable on any other hypothesis except that the accused is guiltythe circumstances should be of a conclusive nature and tendencythey should exclude every possible hypothesis except the one to be proved andthere 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. The Hon ble Supreme Court has held these five golden principles as the "panscheel of the proof of a case based on circumstantial evidence. Although the court below has relied upon the aforesaid judgement however while AIR 1984 SC 1622 dealing with the evidence on record as discussed hereinabove has ignored and misapplied the aforesaid principles laid down by the Hon ble Supreme Court Indian Kanoon 21. The Hon ble Apex Court In the case of Chenga Reddy and Ors Dama Pradhani vs State Of Orissa on 12 April 2021 v. State of A.P.6 has dealt with a case where suspicion has been allowed to take the place of reason and has held in no uncertain terms that 21. In a case based on circumstantial evidence the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the present case the courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence 22. In the oft quoted and relied upon landmark decision of Hanumant v. State of Madhya Pradesh7 the Hon ble Supreme Court while dealing with circumstantial evidence said that the rules especially applicable to such evidence must be borne in mind. It held that in such cases there is always the danger that conjecture or suspicion may take the place of legal proof. It warned of the dangers of such a practice by recalling10 SCC 193 1952 SCR 1091 the warning addressed by Baron Alderson to the jury in Reg v. Hodge8 where he submitted that : The mind was apt to take a pleasure in adapting circumstances to one another and even in straining them a little if need be to force them to from parts of one connected whole and the more ingenious the mind of the individual the more likely was it considering such matters to overreach and mislead itself to supply some little link that is wanting to take for granted some fact consistent with its previous theories and necessary to render them complete 23. In Hanumant Singh s casethe Hon ble Supreme Court has held that in cases where the evidence is of a circumstantial nature the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again the circumstances should be of a conclusive nature and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused 24. In the case of Padala Veera Reddy v. State of Andhra Pradesh9 the Hon ble Supreme Court has held that:2 Lew. 227 "10. Before adverting to the arguments advanced by the learned Counsel we shall at the threshold point out that in the present case here is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. this Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests Indian Kanoon Dama Pradhani vs State Of Orissa on 12 April 2021 1) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established 2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused 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 andthe circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence 25. In the case of Ramreddy Rajesh Khanna Reddy v. State of Andhra Pradesh10 the Hon ble Supreme Court has held that 26. It is now well settled that with a view to base a conviction on circumstantial evidence the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion however grave may be cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence 26. P.W.9 was the son in law of the informant and also related to the deceased. He has also stated that he knew the appellantSupp 2 SCC 70610 SCC 172 well and for a long time P.W.9 s statement pertaining to the extra judicial confession made by the appellant does not inspire any confidence as it is highly unlikely that the appellant would make such a statement to a relative of the deceased. Furthermore if such information had a ring of truth to it or if the P.W.9 had assumed it to be true then he would have immediately confided in the informant or another member of the family upon receiving the same instead of waiting till post dinner. Furthermore in the absence of credible and cogent proof of a love relationship between the appellant and the deceased the intent and motive of the appellant to commit the murder of the deceased is not clear or proven beyond reasonable doubt. Doubt is also cast upon the means of causing death of the deceased when the cross examination of P.W.8 is referred to. The Doctor conducting the post mortem examination of the deceased has not definitively indicated that the death of the deceased was caused by the lungi that was recovered itself instead he has said that any cloth could have caused the death. The lungi in itself has also not been linked to the appellant. The trial court has also erred by not considering that despite the viscera being preserved according to the evidence of P.W.8 the same was not sent for chemical examination and no reason has been assigned for the same 27. With the above backdrop and discussion this Court comes to an irresistible conclusion that the prosecution has not been successful in bringing home the charges against the appellant beyond reasonable doubt and that the Court below has grossly failed to deal with the evidence in proper Indian Kanoon Dama Pradhani vs State Of Orissa on 12 April 2021 28. In view of the discussion made hereinabove especially in the absence of eye witnesses and the weak chain of circumstantial evidence the order of conviction and sentence impugned herein are liable to be set aside 29. Accordingly the Criminal Appeal filed by the appellant is allowed. The judgment of conviction and order of sentence dated 08.07.2010 passed by the learned Adhoc Additional Sessions Judge Fast Track Court) Balangir at Patnagarh in Sessions Case No.80 309 is hereby set aside The appellant be set at liberty forthwith if his detention is not required in connection with any other The LCR be returned forthwith to the court from which it was received S.K. Panigrahi J.) S. Panda J. I agree S. Panda J.) Orissa High Court Cuttack The 12th day of April 2021 AKK LNB Indian Kanoon 