JUDGMENT : S.K. Ray, J. - The Appellant has been convicted u/s 302. Indian Penal. Code, and sentenced to undergo imprisonment for life by Sri U.N. Misra., Sessions Judge, Sambalpur-Sundargarh, by his judgment dated 2-5-1968 passed in Sessions trial No. 2 (sgh) of 1968. 2. The Appellant, aged 20 years, has been charged u/s 302, for having committed murder by intentionally causing the death of his farther Mercus Oram by assaulting him with a stick about the midnight of 18th/19th of September, 1967. 3. The prosecution story is that the deceased left his house about the events of 18th of September 1967, taking seven seers of Gulji with which to purchase liquor for the purpose of drinking. He returned home drunk at about midnight and demanded food. His family members were then asleep. The accused told his father, the deceased, that there was no food for him since he had taken liquor by selling Gulji crop from the house. This angered the deceased who wanted to assault his son, the accused. The deceased was then armed with a stick. Confronted with this situation, the accused snatched away the stick (M.O.I.) from his father and assaulted him indiscriminately. The deceased sustained some severe bleeding injuries in consequence of this assault which took place in the verandah of their house. The deceased fell down on the verandah, but did not lose consciousness. His wife p.w. 2 and his daughter (p.w. 3) came there and they gave him some water to drink. The deceased, on his own request, was removed inside the house, and kept on a cot. He took some more water and then kept quiet. He died at about 6 A.M. on 19 9-1967. 4. P.ws. 2 and 3 are the eye-witnesses to the occurrence. p.w. 4, a brother of the deceased, hearing the cries of p. w. 3 came inside the house of the deceased and found him lying on a cot injured. He found the accused present there. He learnt from p.w. 3 that the accused had assaulted his father with a stick. p.w. 4 asked the accused as to why he assaulted his father. The accused kept quite. p.w. 4 then called some villagers in the morning of 19-9-1967 after the death of the deceased had occurred. p.w. 5 is a co-villager who came to the place of occurrence being called by p.w. 4. p.w. 4 asked the accused as to why he assaulted his father. The accused kept quite. p.w. 4 then called some villagers in the morning of 19-9-1967 after the death of the deceased had occurred. p.w. 5 is a co-villager who came to the place of occurrence being called by p.w. 4. It is alleged that the accused made an extra-judicial confession to this witness, as well as to two other villagers p.ws. 7 and 8. 5. p.w. 5 got a written report scribed by one Johan Ekkay and sent it to Talsara police station through one Anjilus Lekra. The distance between the police station and the place of occurrence would be about forty K.Ms. p.w. 10 was the officer-in-charge of Talsara Police Station. He drew up the formal first information report on receipt of this written report (ext. 3), and registered a Case, and the F.I.R. is ext. 3/2. He held inquest over the dead body on 20-9-1967. The inquest report is ext. 7. He seized the alleged murder, weapon, the lathi (M.O.I.), and six teeth from under the cot on which the deceased was lying in the house under seizure list, ext. 8. This seizure was made at about 4.30 P. M. on 20-9-1967. p.w. 10 then despatched the deadbody through a constable (p.w. 9) for postmortem examination under deadbody challan (ext. 5) and command certificate (ext. 6). The doctor (p.w. I) who was then the assistant surgeon of the Government hospital, Sundargarh, conducted the postmortem examination on 21-9.1967 at 9 A. M. The postmortem report is Ext. I. The I.O. made a reference to the doctor for clarification of two points. The first was whether the seized stick could be the murder weapon for the injuries found on the deceased. The second was whether the six teeth seized from under the cot could be those of the deceased which had been dislocated during assault, and on account of it. He sent both the stick and the teeth to the doctor while seeking clarification on the above two points. The doctor gave his opinion, which will be adverted to later, on the reverse of the written reference (ext. 2). The I.O. also seized some blood-stained earth from the spot under the cot on which the deceased was lying. He took steps for recording the statements of p.ws. The doctor gave his opinion, which will be adverted to later, on the reverse of the written reference (ext. 2). The I.O. also seized some blood-stained earth from the spot under the cot on which the deceased was lying. He took steps for recording the statements of p.ws. 2, 3 and 4 u/s 164, Code of Criminal Procedure by the Magistrate (p.w. 6), which are respectively exts. 4,4/1, and 4/2. Ultimately he submitted charge-sheet against the accused. 6. As the prosecution narration runs, there is no specific motive in this case. The assault was committed in heat of the moment and to escape the imminent assault by the deceased, proceeded by a quarrel. 7. The doctor who held the poet-mortem examination found six external injuries. They are: (i) One lacerated wound 2 " ? 1" skin-deep lying transversely above the right eyebrow. (ii) one lacerated wound of irregular dimension dividing pina of right ear. (iii) One lacerated wound 2" ? ?" skin-deep lying transversely across the middle of the forehead close to hair line. (iv) One lacerated wound 3" ? i" skin-deep involving left eyebrow and lying transversely across the forehead. (v) One lacerated wound with compound and comminuted fracture of the nassal bone. (vi) One lacerated wound of irregular dimension over the left cheek. On dissection the doctor found the subcutaneous haemotoma involving the front half of the skull, a fissured fracture of 2" long on the upper part of frontal bone; compound and communited fracture of both upper and lower jaw bones of left side with dislocation of three teeth of upper jaw and two teeth of lower jaw and intracranial haemotoma over the frontal lobe of the brain. In the opinion of the doctor, death was the cumulative effect of all the injuries which were, in ordinary course of nature, sufficient to cause death. He also gave his opinion that the injuries on the deceased could be caused by a stick, like M. O. I. There is no doubt, therefore, that the deceased died of homicidal death. 8. The defence is one of denial. It appears from the trend of cross-examination that the further defence is that the deceased was assaulted somewhere outside his house, and he came home at about midnight of 18.9.1967 in a badly injured condition, and ultimately succumbed to those injuries. 9. The prosecution has relied upon two eye-witnesses, viz. p.ws. 8. The defence is one of denial. It appears from the trend of cross-examination that the further defence is that the deceased was assaulted somewhere outside his house, and he came home at about midnight of 18.9.1967 in a badly injured condition, and ultimately succumbed to those injuries. 9. The prosecution has relied upon two eye-witnesses, viz. p.ws. 2 and 3, who are respectively the wife and daughter of the deceased. Reliance is also placed on the extra-judicial confession made by the accused before p.ws. 5, 7 and 8. The I.O. seized some blood-stained earth, blood-stained cloths of the deceased, the murder-weapon (M. O. I.) and six teeth from inside the house of the deceased to indicate that the occurrence took place in the house itself. 10. I will now proceed to deal with the eye-witnesses. p.w. 2 is the wife of the deceased. She was examined u/s 164, Code of Criminal Procedure. That statement has been proved in this case as Ext. 4. In her examination-in-chief in Court she has repeated what she had stated before the Magistrate, but in cross-examination she has resiled therefrom. She says that it was a dark night when her husband came crying about the midnight of 18th September, 1967, while she was asleep. She is unable to say who assaulted whom and with what weapon. This belated version of hers in her cross-examination appears to be consistent with the hour of the night when the occurrence took place. Despite this retraction from her examination-in-chief, she has not been declared hostile by the prosecution, and her statement u/s 164 has not been put to her either for contradiction of the same, or by way of corroboration of her statement in chief. In the absence of confronting her with her statement u/s 164 and in the absence of putting the same statement to the accused in his examination u/s 342, Code of Criminal Procedure that Statement of hers must be ruled out of consideration. The effect of her evidence is that she has made contradictory statements directly opposite to each other, and there is no sure basis to reject her Statement in cross-examination. It is difficult, therefore, to rely on her evidence for any purpose whatsoever. The effect of her evidence is that she has made contradictory statements directly opposite to each other, and there is no sure basis to reject her Statement in cross-examination. It is difficult, therefore, to rely on her evidence for any purpose whatsoever. The prosecution, however, has tried to utilise the Statement made by the I.O. in his evidence that this witness (p.w. 2) had stated before him that the accused snatched away the stick from his father, and dealt several blows on the deceased. This Statement of the I.O. is sought to be used by way of corroboration of p.w. 2's Statement in-chief. But I am afraid, this Statement of the I.0 cannot be admissible, as this witness, p.w. 2 has not been confronted with her alleged Statement before the I.O. The next eye-witness is p.w. 3, the daughter of the deceased. She was also examined u/s 164, where she has stated that the occurrence took place in the verandah of the house. After the assault was over the deceased was removed inside the home, and was laid on a cot where he succumbed to his injuries by the next morning. In examination-in-chief she has stated in a manner contradictory to what she had stated before the Magistrate, as in cross-examination she like her mother (p.w. 2), completely changed her version. She has stated that the deceased came home injured and bleeding in different parts of his body. She was, however, declared hostile and her previous statement u/s 164 was confronted to her which she denied to have made. Her statement u/s 164 has been proved in this case (Ext. 4/2). She has also made prevaricating statements from stage to stage and has relied from her statement-in-chief. Implicit reliance is impossible to place on her unless she is sufficiently corroborated by other evidence on record. 11. The Supreme Court in case of Ram Charan and Others Vs. State of U.P. has said: If a statement of a witness is previously recorded u/s 164, Code of Criminal Procedure it leads to an inference that there was a time when the police thought the witness may change but if the witness sticks to the statement made by him throughout, the mere fact that his statement was previously recorded u/s 164 will not be sufficient to discard it. The Court, however ought to receive it with caution, and if there are other circumstances on record which lend support to the truth of the evidence of such witness, it can be acted upon. 12. In this case as shown above, p.ws. 2 and 3 have not stuck to their evidence u/s 164, and there are no other circumstances, as would appear from the discussion made herein after which may lend support to the truth of the testimony of witnesses in their examination in chief. That apart, these exts. 4 and 4/2 have not been put to the accused in his examination u/s 342, Code of Criminal Procedure. 13. I will now proceed to deal with the extra-judicial confession alleged to have been made before p.ws. 5, 7 and 8. p.w. 5 says that on reaching the place of occurrence, being called by p.w. 4, he questioned the accused about the incident to which the latter replied by confessing that he had assaulted his father, but in his cross-examination p.w. 5 admits that he did not state in the committing Court that he had asked the accused about the cause of death of the deceased. He is also contradicted by the I. O. when he says that he had stated before the latter that the accused told him that in the midnight when the deceased came, and asked for rice, the accused snatched away the stick and assaulted the deceased. His evidence, therefore, is not consistent one, and rather comprises of some false averments p.w. 7 is another witness who deposes about the extra-judicial confession. This witness states that after reaching the house of the deceased he asked the accused about the cause of death of the deceased, and the accused told him that he had assaulted his father. The I.O. however, admits that p.w. 7 did not state before him that the accused told him that he had assaulted his father. In view of this omission of p.w. 7 to disclose about the extra-judicial confession made to him by the accused, his evidence in Court is difficult of acceptance. It is, however, argued by the prosecution that even though the I.O. had stated that p.w. 7 had not told him categorically that the accused conferred to him of having assaulted his father, he had told him of the accused having confessed his guilt before him. It is, however, argued by the prosecution that even though the I.O. had stated that p.w. 7 had not told him categorically that the accused conferred to him of having assaulted his father, he had told him of the accused having confessed his guilt before him. Apart from what import is possible to be attributed to the statement "the accused confessed his guilt before him" this statement has not been deposed to by p.w. 7 himself, and thereby the witness has, in a manner contradicted herself. Therefore, the net result is that the evidence of p.w. 7 with regard to the extra-judicial confession made to him by the accused inspires no confidence. P.w. 8 is the last witness to prove the extra-judicial confession. Like others, he also says that when he asked the accused about the incident, the latter confessed to him that he had assaulted his father. This witness came to the place of occurrence being called by p.w. 7. p.w. 4 does not corroborate him in this respect. The so called extra-judicial confession made by the accused to p.w. 8 is a bare statement that he had assaulted his father. The accused has not disclosed to him the events which led to this incident as he purports to have done to other witnesses of the extra-judicial confession. This confession is silent as to the weapon used by the accused assaulting his father. On a consideration of the testimony of these witnesses, p.ws. 5, 7 and 8, who are not consistent in regard to the content of the extra-judicial confession, the only conclusion inferable is that such extra-judicial confession is not true. In view of the fact that the extra-judicial confession has also been retracted, and that apart from there being no corroborative evidence of such confession, there are circumstances militating against its truth as would appear from the discussion to be made hereinafter, it is difficult to place any reliance on such extra-judicial confession. 14. Having regard to the extensive injuries on the deceased, there must have been profuse bleeding and the ground must have been stained with large patches of blood. The murder weapon, M.O.I. would naturally be expected to have some detains of blood. It is also the prosecution case that some teeth of the deceased were dislocated in the assault, and six such teeth were seized from under the cot whereon the deceased was lying. The murder weapon, M.O.I. would naturally be expected to have some detains of blood. It is also the prosecution case that some teeth of the deceased were dislocated in the assault, and six such teeth were seized from under the cot whereon the deceased was lying. All these circumstances, if proved, would clearly establish that the occurrence took place either in the verandah inside the room and in the manner as suggested by the prosecution. We find that the prosecution has failed to prove the reports of the Chemical Examiner and the Serologist, to show that the earth seized from the alleged place of occurrence was stained with blood or that the stick, M.O.I was the weapon used in committing the assault. Omission to prove these facts has resulted in failure to establish many important circumstances by which the evidence of the prosecution witness could be corroborated. This also leads to an inference that possibly the defence theory that the deceased had received all the injuries somewhere else outside his house, and came home in an injured condition may be true. Another circumstances which but tresses up this defence theory is this : The doctor's evidence is that he found five molar teeth, three upper and two from lower jaw of the deceased, to have been dislocated during his post-mortem examination. When the I.O. sent the seized teeth to the doctor for opinion if those were the teeth belonging to the deceased, he gave a negative reply. Except one of those six teeth which was a molar teeth, the others did not correspond to the teeth seen missing at the postmortem examination. It is, therefore, reasonably argued on behalf of the defence that the prosecution has planted somebodyelse's teeth at the alleged place of occurrence, and has in addition, failed to explain the disappearance of the actually dislocated teeth therefrom. This circumstance, apart from showing that the police investigation was not bona fide, also shows planting of somebody else's teeth through some agency inside the house to probabilise the prosecution story of assault at that place. This makes the defence version that the assault on the deceased took place somewhere else outside the house a likely. Those circumstances also affect the veracity of the so called extra-judicial confession. This makes the defence version that the assault on the deceased took place somewhere else outside the house a likely. Those circumstances also affect the veracity of the so called extra-judicial confession. If the confessions were true, then we should find the dislocated teeth lying on the ground of the place of occurrence and the earth stained with blood. The aforesaid circumstances coupled with the varying statements of the two eye-witnesses, and the discrepancies in the evidence regarding the extra-judicial confession do not prove the case against the accused beyond all reasonable doubt. 15. It is next argued by the defence that there is no legal evidence of identification of the dead body of the deceased to the doctor who held the postmortem examination. The doctor, p.w. 1 says that the dead body was identified to him by the constable, p.w. 9, Bira Naik and another person, Siman Lakra. This Siman Lakra has not been examined. The constable, p.w.9, merely says that he took the dead body for postmortem examination under dead body challan, Ext. 5, and command certificate, Ext. 6. He does not testify that he identified the dead body to the doctor as that of the deceased. The I.O. who drew up the dead body challan and the command certificate has failed to prove them. . There is thus, no evidence to show that Exts. 5 and 6 were in respect of the deceased. Equally there is no direct evidence by the constable that he identified the dead body which had been entrusted to him Exts. 5 and 6, to the doctor. There is thus a lacuna left in the prosecution evidence as the postmortem report cannot be connected with the deceased. One of the facts in issue in this case is that the nature of the injuries received by the deceased were all ante-mortem, and the injuries were likely to be caused by the alleged murder weapon, and that such injuries were caused during a particular period. This fact in issue can be established only by the doctor who holds the post mortem examination over the dead body. This fact in issue can be established only by the doctor who holds the post mortem examination over the dead body. It must, therefore, be proved that the dead body in question was examined by the doctor and was identified to him properly Normally, deadbodies in connection with different criminal cases are despatched to a dead-house for postmortem examination and the same doctor may have to conduct postmortem examination over all of them. The object of identification of dead body to the doctor is to relate the postmortem report to the dead body over which postmortem examination has been held and post mortem report has been made and to rule out all chances of confusion. It is, therefore, essential for the prosecution in this case to establish by positive legal and admissible evidence that the postmortem report relates to the dead body of the deceased. The evidence of such identification as offered by the doctor, p.w. 1, is obviously hearsay, because the doctor himself had no personal acquaintance with the deceased. The cardinal rule is that the best available evidence must always be given. Section 60 of the Evidence Act requires that the oral evidence must always be direct. In this case the fact to be proved is that the dead body was identified to the doctor. The doctor's evidence is that p.w. 9 identified the body to him is hearsay. It is a bald statement that p.w. 9 told him that the body was of the deceased. This identification is not of the doctor's own knowledge. It is an information which had been transmitted to him by the constable, p.w. 9. This section of the Evidence Act provides that if the evidence refers to a fact which could be seen, it must be the evidence of a witness who says that he saw it. If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it. If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner. The principle of rejection of hearsay evidence is based on its relative untrustworthiness for judicial purpose. If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner. The principle of rejection of hearsay evidence is based on its relative untrustworthiness for judicial purpose. A number of reasons have been set out by text-book writers on Evidence as to why such hearsay evidence is treated as untrustworthy. The reasons are that the original declarant of the statement which is offered in a second hand manner is not put on oath, nor is he subjected to cross examination, and the accused, against whom such evidence is offered, loses his opportunity of examining into the means of knowledge of the original maker of the statement, the truth of the original statement is diminished in course of r petition of that statement, that admissibility of hearsay evidence would open up opportunities for fraud, and that such rule of admissibility would encourage substitution of weaker for stronger proof regarding proof of a fact in issue or a relevant fact. 16. In view of this legal position, we are of opinion that the learned Counsel for the Appellant is justified in contending that there is no legal proof of identification of the deadbody of the deceased to the doctor, and therefore, the post mortem report in the present case cannot be said to have been positively related to the deceased, and in the circumstances that report must be discarded from consideration. When that is done, the residue of the evidence on record is not adequate for maintaining the conviction, as without the medical evidence it is impossible to hold that the injuries received by the deceased were ante-mortem, or that they were likely to be caused by the so-called murder weapon or that they were not caused long before the alleged hour of occurrence, as asserted by the defence. As already shown, the oral evidence in this case is not reliable without corroboration. Corroboration that was expected from the medical evidence is no longer available. In the circumstances the prosecution cannot be held to have proved its case beyond all reasonable doubt against the Appellant. The Appellant is, therefore, entitled to the benefit of doubt, and to an acquittal. As already shown, the oral evidence in this case is not reliable without corroboration. Corroboration that was expected from the medical evidence is no longer available. In the circumstances the prosecution cannot be held to have proved its case beyond all reasonable doubt against the Appellant. The Appellant is, therefore, entitled to the benefit of doubt, and to an acquittal. The appeal is accordingly allowed, the judgment of conviction and sentence passed by the sessions judge is set aside, and the Appellant is directed to be set at liberty atonce. S. Acharya, J. 17. I agree. Final Result : Allowed