JUDGMENT : Das, J. - Both the Appellants have been convicted under Sections 302/34, Indian Penal Code, and sentenced to R.I. for life by an order dated 18-5-1962 of the Sessions Judge, Sambalpur-Sundargarh, in Sessions Trial No. 15 of 1961. 2. The accused Ramakrishna Misra is the cousin and accused Kunjalata Dibya is the second wife of the deceased Narasingha Misra. The deceased was working as an orderly, constable of the Deputy Superintendent of Police, Sundargarh, on 5-3-1961 that is the date of occurrence. A few days prior to the occurrence the deceased had been to Puri on official duty and returned to Sundargarh the day preceding the occurrence. On the date of occurrence, he also attended his duty at the residence of the D.S.P. until 2 p.m. Shortly after, he was found to be ill. So the accused who was living in the house of the deceased went to the residence of the D.S.P. several times to inform him about the illness of the deceased, but could not met him. Later on, some of the neighbours also visited the deceased and found him in a restless condition and advised accused Ramakrishna to take the aid of a doctor and remove the patient to the hospital. It is said that on some pretext of other, the accused Ramakrishna did not remove the deceased to the hospital. On the following morning, the deceased was found dead at his house having some ligature marks on his neck. P.W. 4 a neighbour of the deceased thereupon lodged an U.D. F.I.R. (Ext. 1) in which he reported that the death of the deceased appeared to be suspicious. After completion of investigation, the two Appellants were charge-sheeted and committed to the court of sessions where they were convicted and sentenced as above. 3. There is no eye-witness to the occurrence, The prosecution relied upon the following circumstances to establish the case of murder against both the accused persons: (1) Illicit intimacy between accused Ramakrishna (accused No. 1) and his sister-in-law Kunjalata Dibya (Accused No. 2). (2) The deceased was in healthy condition shortly before his death. (3) In spite of the advice of neighbours, the accused persons did not remove the deceased to the hospital. On the other-hand accused No. 1 falsely stated that the deceased was already under treatment of a compounder Ganendra Kumar Sabat (P.W. 6). (2) The deceased was in healthy condition shortly before his death. (3) In spite of the advice of neighbours, the accused persons did not remove the deceased to the hospital. On the other-hand accused No. 1 falsely stated that the deceased was already under treatment of a compounder Ganendra Kumar Sabat (P.W. 6). (4) That there were marks of ligature on the neck of the deceased suggesting homicidal strangulation, to which. Chandan (sandalwood paste) was applied obviously with a view to conceal such marks from the notice of others. 4. The learned Sessions Judge relied upon these circumstances as proving the guilt of the accused persons and convicted both of them. 5. As I have said above, there is no eye-witness to the occurrence and the whole case depends upon the circumstantial evidence as given above. The prosecution was not sure as to the exact cause of the death. In the charge the accused persons were charged both for poisoning and strangulation by rope. Some Jir greenish substance was found in the stomach and the viscera was preserved as appears from the post mortem report (Ext. 6). There is nothing on record to show that the viscera was sent for chemical examination to find out if poisonous substance was found therein. The prosecution, however, did not press the case of poisoning, but wanted to make out a case of strangulation. 6. The plea of both the accused was more or less the same. They denied the alleged illicit intimacy between them. They pleaded that the deceased was suffering from colic. The deceased died in spite of the treatment by P.W. 6 who, however, denies the fact only in order to avoid his responsibility in the matter. They also denied the existence of any ligature mark on the neck of the deceased and that they strangulated the deceased to death with the help of any rope. They pleaded that the deceased was suffering from fever and colic and on the date of occurrence he attended his duty until 1 p.m. in the house of the D.S.P. where he took his food on that day and after returning home he had some vomiting and thereafter fell ill and died a natural death. Further the case of accused Ramakrishna was that on account of previous enmity with P.W. 3, 4, 8 and 12 he has been falsely roped in the crime. 7. Further the case of accused Ramakrishna was that on account of previous enmity with P.W. 3, 4, 8 and 12 he has been falsely roped in the crime. 7. In support of the alleged illicit intimacy of both the accused, the prosecution relied upon the evidence of P.Ws. 1, 2, 3, and 4. P.W. 1 Daitari Misra is a relation of the deceased Narasingh. His evidence is that in Bhadra 1960 he was informed by P.W. 2 that the accused Rama was carrying the other accused Kunjalata on a cycle from the side of Jharsuguda and was going., towards the village Kulbaria. On hearing this, the witness went to village Kulbaria and found both of them living in the house of one Sukanti, the step-mother of accused No. 1. He requested them to go to his village Raghunath Palli, but they refused to do so. On the next day, he again came to village Kulbaria and found both the accused persons bathing with soap in one Ghat of the village tank contrary to the custom of this area. From this, he came to the conclusion that there must be some unusual intimacy between the two accused persons. P.W. 2 Niranjan Sarap, has stated that he saw accused No. 1 carrying accused No. 2 on a cycle and he reported this matter to P.W. 1. P.W. 3 claims to be a close friend of the deceased. His evidence is that the deceased Narasingh was complaining before him about the illicit connection between both the accused persons and the witness advised him to drive away accused No. 1 from his house. Accordingly the deceased drove away Ramakrishna from his house for sometime. But accused No. 1 used to come to accused No. 2 during the absence of the deceased from his house. Almost to the same effect is the evidence of P.W. 4 Prahallad Padhan another neighbour of the deceased before whom also the deceased was complaining that he found the two accused persons sitting on the same cot to which the deceased objected. This alleged intimacy is considered to be one of the circumstances, it being the motive of the accused persons to do away with the deceased so as to facilitate the carrying on their clandestine love unhindered. This alleged intimacy is considered to be one of the circumstances, it being the motive of the accused persons to do away with the deceased so as to facilitate the carrying on their clandestine love unhindered. In this connection it has to be noticed that the accused persons are not strangers to themselves, but are close relations accused No. 1 being the brother-in-law (husband's younger brother) of accused No. 2 and that they were also staying together. By their close relationship they are supposed to be intimately connected and no inference of illicit intimacy can be inferred merely because they were found sitting on one cot or were found going on one cycle. It may be noted that the carrying of accused No. 2 by accused No. 1 on a cycle has not been noticed by any body except P.W. 2 and on this point, the evidence stands uncorroborated. It is equally difficult to accept that the deceased would expose his wife before P.Ws. 3 and 4 who are not in any way related to him. There is no other circumstance from which any inference about the existence of any illicit intimacy between the two accused persons can be inferred. In any case, if the accused persons were carrying on illicit love, there was no particular motive for the commission of the murder on the date of occurrence. 8. The next circumstance is that the deceased was found to be in a healthy condition shortly before his death. Reliance was placed on the evidence of P.Ws. 3, 4, and 8 to show that the deceased was in quite healthy condition on the morning of the date of occurrence. This evidence has been led obviously with a view to show that such a healthy person could not have died natural death on the following morning and thus he must have been the victim of either poisoning or homicidal strangulation. That the deceased did in fact attend his duties till 1 p.m. on the date of occurrence was not disputed by the accused persons. But their case was that he was not generally keeping good health and was suffering from colic pain. That the deceased did in fact attend his duties till 1 p.m. on the date of occurrence was not disputed by the accused persons. But their case was that he was not generally keeping good health and was suffering from colic pain. Accused No. 2 had stated in her 342 statement that her husband had colic pain, but in spite of that he went to attend his duty and he was absent from duty for three days prior to the date of occurrence, as he was sick. Whatever might have been the condition of the deceased in the morning of the date of occurrence, we may take it even on the basis of the statements of the accused that he was somewhat fit and remained on duty until 1 p.m. that day. The suffering of the deceased appears to have commenced sometime that afternoon. It is in the evidence of P.W. 8 that at about 7 p. m. that C.W.7, the accused Rama informed him that the deceased had been vomitting and getting restless. On hearing this, he in the company of P.W. 12 went to the house of the deceased and found him actually in a restless condition and he was unable to speak. He advised the accused to remove the deceased to hospital for treatment and then he left the place. Sometime after, that is, at about 9 p.m. P.W. 8 in the company of P.W. 5 the sub-inspector of police again came to the house of the deceased and found the deceased in the same restless condition. When the witness advise all to remove the patient to hospital, accused Rama said that he was waiting for the arrival of one of his relations. That the deceased was actually vomitting cannot be doubted. According to the evidence of P.W. 9 the A.S.I. spizea some vomitting materials from the court-yard of the deceased. No doubt, the deceased was not removed to the hospital that night. A part from the accused persons, it appears that his so called friends and neighbour such as P.Ws 3, 4, 5, 8 and 12 also did not take any steps to remove the deceased to the hospital. It was said that the accused Rama assured them that some sort of a treatment had been given by the compounder P.W. 6. A part from the accused persons, it appears that his so called friends and neighbour such as P.Ws 3, 4, 5, 8 and 12 also did not take any steps to remove the deceased to the hospital. It was said that the accused Rama assured them that some sort of a treatment had been given by the compounder P.W. 6. The compounder, however, denied to have gone to his house that day and given any treatment though he admitted to have previously treated the father of accused No. 2. The accused persons had asserted in their statements that as a matter of fact P.W. 6 came and gave some treatment to the deceased though he now backs out probably because he might be held responsible for the death of the deceased. What exactly were the reasons as to why no steps were taken either by the relations or friends of the deceased to remove him to hospital that evening, it is difficult to speculate, but one thing is certain from the evidence of P.W. 13 the constable who was on duty at the residence of the D.S.P. that the accused No. I came that day to the bungalow of the D.S.P. once at 4 p.m. and again at 8 p.m. to inform him about the illness of the deceased, but the D.S.P. was not available. So he requested P.W. 13 to report this matter to the D.S.P. which was done. If in fact, accused No. 1 or both of them administered some poison to the deceased by that time resulting in his sudden illness, it is difficult to believe that the accused Ramakrishna would have ventured to approach the D.S.P. to bring to his notice the illness of the deceased. If per chance the deceased would have been removed to the hospital either by the D.S.P. or anyone of these officers, friends or neighbours the same evening, then certainly the cause of illness by poisoning or otherwise would have been immediately detected, and the accused persons would have been held responsible for the same. No person would take such a risk if he himself administered the poison. No person would take such a risk if he himself administered the poison. The mere fact that the accused No. I was averse to the advise of so many persons to remove the deceased to the hospital for some reason or other is, by itself, it was open to any of the friends and neighbours to remove the patient to hospital. There is thus no justification to hold that the accused persons had any hand in the illness that the deceased had that evening or had any oblique motive in not removing the patient to the hospital. 9. It was contended by learned Counsel for the State that it is just possible that an initial attempt was made to kill the deceased by poisoning, and that having failed the accused persons resorted to kill him by strangulating him with a rope. As I have said, it is difficult to accept that any poison was administered by the accused persons, that afternoon and the story of poisoning must therefore be ruled out. 10. At one stage in the evidence it was suggested that some attempt was made to elicit in writing from the deceased as to what exactly he was suffering from and for that purpose a suggestion was made to the accused to give the deceased a pencil and paper so that he could write out what he had got to say. But the accused refused to give any assistance in the matter. It is in the evidence of P.W. 8 that when he suggested this to accused Rama, the accused told him that he had tried this beforehand, but the deceased could not write anything. According to P.W. 8 the acused said this when S.I. was present in the house of the deceased, but P.W. 5 does not say any a word about it. If P.W. 8 was keen on the matter it was not difficult for him to procure a piece of paper from any other source.The main circumstance on which the prosecution relied upon to make out a case against the accused persons was the existence of ligature mark on the neck of the deceased suggesting homicidal strangulation, and the attempt to conceal the same by application of Chandan paste cannot be accepted for a moment. P.W. 3 is the only witness who has spoken about this. P.W. 3 is the only witness who has spoken about this. According to him he noticed the pasting of Chandan on the ligature mark. In the inquest report (ext. 4) made by the P.W. 7, there is nothing to show regarding the application of any such paste on the ligature mark. From Ext. 4 it appears that the police officer opined that the death was due to hanging by rope. According to the doctor, however it was not a case of suicidal hanging, but was a case of homicidal strangulation either by the application of a rope or chord. It appears from the seizure list (Ext. 5) that three Kaunria ropes with blood-like stains were recovered from the bamboo chalia near about the bed of the dead-body. None of these ropes however was shown to the doctor to get his opinion as to whether strangulation was possible with any of those ropes. Had it been done, the doctor might have given his opinion one way or the other. If in fact these ropes had blood-like stains as appears from Ext. 5, it could have been ascertained from the doctor whether the ligatures were bleeding in nature so as to leave stains on some of the ropes. It is also not clear from the evidence whether these ropes were at all sent to the chemical examiner to find out the origin of the bloodstains thereon. The evidence as to wherefrom these ropes were recovered, is also at variance. According to P.W. 3 the police recovered in his presence a piece of rope five to six cubits long from underneath the Sima plant in the courtyard of the deceased and the rope was kept covered under a napkin. From the seizure list, Ext. 5 to which this witness is an attestor, it appears that three pieces of ropes were found in the bamboo Chalia near the dead body and there is nothing to show if the rope was covered with a napkin suggesting some sort of suspicious concealment of the rope. There is no other seizure list to show any such seizure, in the manner narrated by P.W. 3. No doubt, the existence of ligature mark is fully supported by the evidence of the doctor who was of the opinion that death was due to homicidal strangulation. There is no other seizure list to show any such seizure, in the manner narrated by P.W. 3. No doubt, the existence of ligature mark is fully supported by the evidence of the doctor who was of the opinion that death was due to homicidal strangulation. Even accepting the evidence of the doctor that the deceased met his death as a result of homicidal strangulation, the next question that arises for consideration is whether the accused persons are responsible for causing the death of the deceased by such strangulation. The accused persons no doubt had admitted that both of them were attending the deceased on the night of the occurrence. It was contended on behalf of the State that he accused persons being present at the time of death of the deceased and the doctor's opinion being that the death was due to strangulation, the onus was upon the accused persons to explain as to how the ligature marks were caused on the neck of the deceased and in the absence of any reasonable explanation, the only legitimate inference that can be drawn in the circumstances of the case was that the accused persons were the persons who strangulated the deceased to death. No doubt, there is enough room for suspicion against the accused persons, but suspicion however strong cannot take the place of legal evidence. Here again we are dealing with a case of merely circumstantial evidence. Circumstantial evidence in its very context means a combination of facts creating a network from which there is no escape for the accused, because the facts taken as a whole do not admit any inference but the guilt of the accused. In other words, the circumstances, as a whole must be thoroughly in consistent with the hypotheses of the innocence of the accused. We have found already that the other circumstances are not so conclusive as to bring home the guilt to the accused beyond all reasonable doubt, namely, the alleged intimacy of accused No. 1 with accused No. 2 and the fact that the accused No. 1 did not call for the doctor though so advised by the neighbours. There is not a single circumstances which directly connects any of the accused persons with the alleged murder of the deceased. There is not a single circumstances which directly connects any of the accused persons with the alleged murder of the deceased. No 566 doubt, they were present in the house at the time when the deceased met his death, but that was the place where they ordinarily lived and their stay at the house when the deceased last lived is not something unusual. That by itself cannot be taken as an incriminating circumstance against them. All that is said against them is that they have not explained how the ligature mark on the neck of the deceased came into being. No doubt the accused persons denied the existence of such ligature marks, but in view of the evidence of the doctor (P.W. 10) it is difficult to accept their version. According to the inquest report, the case was suspected to be one of hanging. The doctor however was of the opinion that it was a case of homicidal stangulation. 12. No doubt, the medical opinion is to be given due weight, but can it be taken as so conclusive as to hold that the death must have been caused only in the manner as opined by the doctor and in or other. The opinion of the doctor is however of an advisory character. In a case reported in Anant Chintaman Lagu Vs. The State of Bombay, their Lordships held that to rely upon the findings of the medical man who conducted the post mortem and of the chemical analyses as decisive of the matter is to render the other evidence entirely fruitless. While the circumstances of ten speak with unerring certainty, the autopsy and the chemical analysis taken by them selves may be most misleading. No doubt, due weight must be given to the negative findings at such examinations. But bearing in mind the difficult task which the man of medicine performs and the limitations under which he works, his failure should not be taken as end of the case, for on good and probative circumstances, an irresistible inference of guilt can be drawn. Thus, in a given case the weight of direct evidence or the value of the probative circumstances may out weigh the opinion of the doctor. Thus, in a given case the weight of direct evidence or the value of the probative circumstances may out weigh the opinion of the doctor. The only circumstance that is considered as incriminating against the accused is that they have not explained the existence of the ligature marks which is the result of a homicidal strangulation as opined by the doctor. No doubt the doctor's opinion would be given its due weight but it cannot be the sole basis for a conviction. Moreover, in the present case as I have said the rope itself has not been shown to the doctor to ascertain from him if the ligature in question could have been caused by those ropes. What was the necessity of the seizure of those ropes if they were not offered for the opinion of the doctor or the chemical examiner. In this background, the existence of the ligature marks cannot be taken as a conclusive incriminating circumstance against the accused. 13. Assuming, however, that the deceased died as a result of homicidal strangulation, the further question that arises for consideration is as to which of the accused or both were responsible for the same. There is no evidence to show either one or both the accused effected such strangulation. Assuming that it was also possible by one person as opined by the doctor the question necessarily would arise as to which of these two persons was responsible for this, or can it be unerringly held that both must have participated in the murder or at least shared the common intention to commit the act. It is not difficult to conceive that one may have committed the crime and the other might have been a helpless spectator. There is nothing in the prior or subsequent conduct of the accused persons also to draw any inference of any such common intention. It was contended by the learned Counsel for the State that it was open to the helpless spectator to raise a hulla to attract a crowed. There is nothing in the prior or subsequent conduct of the accused persons also to draw any inference of any such common intention. It was contended by the learned Counsel for the State that it was open to the helpless spectator to raise a hulla to attract a crowed. But there is no evidence as to whether the accused other than the one who actually committed the murder was present at the moment when the murder was committed, or was even aware of the same or was awake at the time to raise any hulla This is after all a matter for speculation and the entire circumstance is again based upon their illicit intimacy for which the murder is alleged to have been committed. 14. Mrs. Patnaik, learned Counsel for the Appellant, drew our attention to some of the unsatisfactory features of the case. According to learned Counsel this false case had been started at the instance of some of the prosecution witnesses, such as P.Ws. 3, 4 and 8 who were highly inimical to the accused Rama and some how or other wanted to falsely rope him in the crime. It was contended that P.W. 8 is the accountant of the police office and it was he who on a previous occasion brought a case against the accused No. 1. It was admitted by P.W. 8 that in about October or November 1960 he himself started a criminal case against accused No. 1 for theft of some fowls from his house, but accused No. 1 was acquitted in that case. He also appeared in the year 1960 as a witness against this accused in a case brought against him by one Raghunath Misra. P.W. 4 Prahallad Padhan who lodged the U.D.F.I.R. on the footing that the deceased died a suspicious death, was himself a wetness for P.W.8 against accused Rama. It was contended that the evidence of these two witnesses P.Ws.4 and 8 should not be given any weight in view of their past strained relationship with the accused. The evidence of P.W. 3 was also commented on the footing that he offered himself to be a witness at all stages to connect the accused with the crime from the stage of illicit connection till the seizure of the ropes. That P.W. 3 has made embellishment in his evidence cannot be doubted. The evidence of P.W. 3 was also commented on the footing that he offered himself to be a witness at all stages to connect the accused with the crime from the stage of illicit connection till the seizure of the ropes. That P.W. 3 has made embellishment in his evidence cannot be doubted. He come forward with a story of a recovery of a rope covered in a napkin from near a Shim tree which is contrary to the seizure list ext. 5. He has introduce a story of pasting of Chandan on the ligature obviously suggestive of an attempt of concealment of the same which is not supported by the inquest report, Ext. 4 or by any of the prosecution witnesses and not even by P.W. 7 the A.S.I. who made the inquest report. 15. Mrs. Patnaik also drew our attention to the following unsatisfactory features of the case and contended that the same has sufficiently prejudiced the accused persons in their trial: (1) The investigating officer has not been examined in this case; (2) The report of the chemical examiner has not been produced though the case stood adjourned several times on that ground; and (3) In spite of the repeated petitions of the accused to call for documents in defence and the order of the learned Sessions Judge passed to that effect, the same was not produced before the Court. That the investigating officer should invariably be examined in murder cases cannot bee disputed. In a decision of this Court reported in Dibakar Sarangi v. State 21 C.L.T. 457 it was held that in a criminal trial particularly in the trial of a murder case it is of utmost importance that the prosecution should examine the investigating officer as the absence of such officer from the witness box would place the accused in a very great disadvantage as he may not bring out many facts on record which may go in support of his defence. No doubt, there may be case where the examination of the investigating officer may not be very material and in a particular case the non-examination of such officer may not cause any prejudice to the accused. No doubt, there may be case where the examination of the investigating officer may not be very material and in a particular case the non-examination of such officer may not cause any prejudice to the accused. But in the present case, the learned Sessions Judge was of the opinion that the presence of the I.O. was not very essential as the evidence of the prosecution witness's which stands contradicted by their own statements before the I.O. have not been used in the judgment against the accused persons and nothing material could have been proved by the I.O. This may be correct so far as the statements of witnesses were concerned, but it is not possible to visualise always what other circumstances vital to the accused might have been elicited from the investigating officer, in a given case. The present case depend entirely on the circumstantial evidence and it is not known what possible materials could have been brought through the evidence of the I.O. in support of the accused persons. 16. It appears from the records also that the accused persons made some applications calling for certain documents such as the station diary entries obviously to show some enmity of the witnesses that deposed against the accused persons. Unfortunately the accused persons could not procure such documents to place them before the Court. Even though a number of adjournments were given the chemical examiner's report could not be placed before the Court Whether that report would have been helpful to the accused or not is not a matter to speculate. In view of these circumstances there is no doubt some justification for the contention made on behalf of the accused persons that they have beer- prejudiced to some extent. The main question however hinges upon the circumstantial evidence in this case, which as I have already discussed, does not conclusively prove the guilt of the accused persons beyond all reasonable doubt. In that view of the matter, the accused persons must be given the benefit of doubt and must be acquitted. 17. In the result, the order of conviction and sentence as passed by the learned Sessions Judge is set aside, the appeal is allowed, and the Appellants are directed to be set at liberty forthwith. Barman, J. 18. I agree. Final Result : Allowed