JUDGMENT : B.K. Patra, J. - The Appellant was tried by the Additional Sessions Judge, Sundagarh on a charge u/s 302, Indian Penal Code on the allegation that he caused the death of Naga Kisan and his wife Ganga Kisanin by poisoning and was convicted and sentenced to undergo rigorous imprisonment for life. The facts of the prosecution case lie within a short compass. The deceased Naga Kisan, p.w. 3 Badlo Kisan and the Appellant Bhaya Kisan were brothers. Deceased Gango Kisanin was Naga's wife. Naga and the Appellant were residing in the same house but in two different rooms. There were frequent quarrels between these two brothers regarding their lands. Sometime before the occurrence two of the children of the Appellant died and he suspected that the deaths were brought about by Gango Kisanin practising witchcraft on the children. This was an other reason for quarrel between the two brothers. At about midday on 4-11-1968, Naga Kisan and his wife Gango Kisanin took rice and handia in their house and shortly thereafter Naga began to vomit and after vomitting several times he died. Immediately thereafter Gango also began to vomit and she also died. p.w. 3 the younger brother of the deceased Naga lodged information at the police station Raiboga which is 14 miles off from his village Sadhumunda at about midday on 5-11-1968 on the basis of which the officer-in-charge p.w. 8 drew up two U.D. F.I.Rs. Exts. 10 and 11 and took up investigation. He arrived at the spot at about 7 P.M. on that very day and held inquest over the dead bodies dispatched the same to the Medical Officer, Rajgangpur for post-mortem examination. He then collected some earth containing the vomitting of Naga and his wife, some dry handia from an earthen pot and the remanents' of the curry and rice which he found in the house of Naga. Next morning he searched the house of the Appellant and recovered therefrom a paper packet which contained some black powder suspected to be rat killing poison. On the basis of materials placed before him he thought that Naga Kisan and his wife were killed by administering poison to them and he suspected that the Appellant had committed the offence. He, therefore, drew up an F.I.R. u/s 302, Indian Penal Code and arrested the Appellant. 2. On the basis of materials placed before him he thought that Naga Kisan and his wife were killed by administering poison to them and he suspected that the Appellant had committed the offence. He, therefore, drew up an F.I.R. u/s 302, Indian Penal Code and arrested the Appellant. 2. The doctor who conducted the autopsy on the dead bodies preserved their viscera which along with the seizures made by the Investigating Officer in the house of the deceased and the black powder which he recovered from the house of the Appellant were in due course sent to the Chemical Examiner who after examination detected zinc phosphide in the viscera of the two dead persons and also in the powder contained in the packet which was recovered from the house of the Appellant. After completion of the investigation, the Appellant was put on trial. 3. The Appellant pleaded not guilty and denied having ever any quarrel with his brother on any account and having administered any poison to his brother and his wife. He admitted that the paper containing the black powder which subsequently was certified by the Chemical Examiner as containing (sic) had been recovered by the Police from his house. He, however, stated in the trial Court that he had not kept the powder in his house but that it must have been planted there by somebody. No such plea, however, had been advanced by him in the Court of the committing Magistrate. Two of the witnessses p.ws. 5 and 6 had deposed that the Appellant had confessed before them that he had mixed poison with the handia which was to be taken by Naga and his wife but the Appellant denied having made any confession before these two witnesses. 4. The learned Sessions Judge considered the evidence on record and came to the conclusion that Naga and his wife died due to poisoning, that the rat killing powder containing poison (sic) had been recovered from the possession of the Appellant, that the latter was in inimical terms with the deceased-because of some disputes regarding land and also because he suspected that his two children died as a result of witchcraft practised on them by Gango. He also believed that the Appellant made an extra judicial confession before p.ws. 5 and 6 that it is he who brought about the deaths of Naga and his wife Ganga. He also believed that the Appellant made an extra judicial confession before p.ws. 5 and 6 that it is he who brought about the deaths of Naga and his wife Ganga. He, therefore, convicted the Appellant and sentenced him as stated above. 5. It is contended by Mr. Sutar appearing for the Appellant that having regard to the evidence on record, the learned Sessions Judge was not justified in coming to the conclusion that the deaths of Naga and his wife were caused by poisoning and that in any case the evidence is not sufficient to fix the guilt on the Appellant beyond all reasonable doubt. p.w. 5 is a resident of the village Sadhumunda and is a co-villager of the deceased. He states that at about 2 p. m. on the date of occurrence, on hearing the cries of the children of Naga, he went to his house and found Naga lying dead and his wife Gango sitting and crying near him. She appears to have told him that she and Naga took some rice and handia and thereafter Naga felt uncomfortable and developed vomitting and died. While Gango was narrating the incident she also began to vomit and after a little trembling fell down and died. As already stated, a paper containing, some black powder which after examination by the Chemical Examiner was found to contain the poison zinc phosphide was recovered by the police from the house of the Appellant and the very poison was detected in the viscera of the two deceased persons. It is, therefore, the prosecution case that the Appellant who was in possession of the poison, had mixed it either with the rice or with the handia or with both the rice and the handia prepared by the deceased, after consuming a portion of which Naga and his wife Gango died. Some of the several articles which the Investigating Officer, p.w. 8 seized from the house of the deceased are: (1) some dry handia from the earthen pot, (2) some already prepared handia, (3) some prepared rice from earthen pot. (4) some Pakhal rice, (5) some earth containing the vomitting substance from the Bari side and (6) some earth containing the vomitting substance from inside the house. (4) some Pakhal rice, (5) some earth containing the vomitting substance from the Bari side and (6) some earth containing the vomitting substance from inside the house. AU these articles in addition to the viscera of the deceased persons and the black powder recovered from the house of the Appellant had been sent to the Chemical Examiner for examination. Ext.15 the report of the Chemical Examiner shows that while he detected zinc phosphide in the viscera of the deceased and also in the powder, no poison could be detected in any of the remaining articles sent to him. The doctor p.w. 4 has categorically stated that if a person dies by poisoning due to oral administration of zinc phosphide, zinc phosphide will be detected in the vomitting of the deceased. He further went on to say that if zinc phosphide is mixed up in handia or in any other food substance and if any portion of the handia or food substance would remain unconsumed, the unconsumed portion will also contain zinc phosphide. The definite case of the prosecution being that Naga and his wife died after consuming rice and handia the prosecution has not offered any explanation as to how in that event zinc phosphide could not be detected either in the vomittings or in the unconsumed portion of either the rice or the Handia. The absence of poison in the vomitting and the unconsumed food substance, throws a considerable doubt on the prosecution case that the deaths of the deceased persons were due to poisoning. In that connection a question would legitimately arise as to how the viscera of the deceased contained the poisonous substance. It is elicited from the doctor, p.w. 4, that if viscera of a dead person is kept and subsequently zinc phosphide is added to it zinc phosphide would be detected in the viscera during chemical examination. 6. The viscera was collected by Dr. Dileswar Patel. the Medical Officer attached to the Rajgangpur hospital who conducted the pest-mortem examination over the dead bodies. This doctor was net examined as a witness. But Dr. Vidyanta who was at that time Medical Officer in charge of the Rajgangpur hospital, and who claims to have supervised the post-mortem examination was examined as p.w. 1. Dileswar Patel. the Medical Officer attached to the Rajgangpur hospital who conducted the pest-mortem examination over the dead bodies. This doctor was net examined as a witness. But Dr. Vidyanta who was at that time Medical Officer in charge of the Rajgangpur hospital, and who claims to have supervised the post-mortem examination was examined as p.w. 1. It was elicited from him in cross-examination that the viscera of the deceased persons was kept in three glass jars and sealed and that the sealed jars were subsequently handed over to the Investigating Officer. p.w. 8 under orders of the Magistrate. It was p.w. 8 who got these articles sent to the Chemical Examiner through the Sub-Divisional Officer, Panposh. Doubtless the glass jars when received by the Chemical Examiner were found sealed but no evidence has been let in by the prosecution to prove that these were the very seals which had been put on the glass jars by the Medical Officer. Having regard to the facts of this case this is a lacuna which has afforded a handle to the defence to contend that the poison zinc phosphide might have been subsequently added to the viscera which had been collected by the Medical Officer. In any case, having regard to the facts that poison was not detected either in the unconsumed food or in the vomitting of the deceased persons it must be held that the prosecution has failed to prove beyond all reasonable doubt that the deaths of Naga and his wife were due to poisoining. 7. Assuming for a moment that the deaths of the two persons were brought about due to mixing the poison zinc phosphide with their food, the next question is whether it is the Appellant who had administered the same. Undoubtedly, he and the deceased persons were living in the same house, but in two different rooms. Prosecution had examined p.ws. 3, 5 and 6 to say that Naga and the Appellant were found quarrelling on some occasions. It seems, two of the children of the Appellant had died sometime before the occurrence and he was harboring a suspicion that the deaths of the two children were brought a bout by Ganga by practicing witchcraft on them. Prosecution had examined p.ws. 3, 5 and 6 to say that Naga and the Appellant were found quarrelling on some occasions. It seems, two of the children of the Appellant had died sometime before the occurrence and he was harboring a suspicion that the deaths of the two children were brought a bout by Ganga by practicing witchcraft on them. If that be the motive for the commission of the murders, the Appellant's wife is also expected to have an equally strong, if not stronger, motive to avenge the deaths of her two children. The house from which the packet containing zinc phosphide powder was recovered was in the joint occupation of the Appellant and his wife and there are no circumstance to show that the poison was in the exclusive possession of the Appellant. The Appellant's wife had as good an opportunity as the Appellant had to mix poision with the food prepared in the house of the deceased. Prosecution has not let in any evidence to show at what time on the date of occurrence Naga's wife Ganga prepared the rice and the handia. Much less is there any evidence to show that the Appellant had stayed back in his room after Naga and his wife had left for work so that he could get an opportunity to mix the poison with the food. On the other hand, it was elicited from p.w. 3 that on the date of occurrence the accused and his wife went to the forest to get fire wood and that by the time they came back home Naga and his wife were already dead. We, therefore, find that the prosecution has not let in sufficient evidence to prove that there was an opportunity for the Appellant on the date of occurrence to mix up poison in the food prepared for Naga and his wife or that he actually did so. 8. It is true that a case of murder by administration of poison is almost always one of secrecy. The poisoner seldom takes another into his confidence and his preparations for the commission of the offence are also secret. In the majority of such cases therefore, it is futile to expect direct evidence of the commission of the offence and one has therefore necessarily to depend on circumstantial evidence. The poisoner seldom takes another into his confidence and his preparations for the commission of the offence are also secret. In the majority of such cases therefore, it is futile to expect direct evidence of the commission of the offence and one has therefore necessarily to depend on circumstantial evidence. But the circumstantial evidence relied upon should be so decisive that the Court can unhesitatingly hold that death was the result of administration of poison and that the poison had been administered by the accused. The facts found must be such that taken as a whole they do not admit of any inference but of the guilt of the accused. As indicated by the Supreme Court in Anant Chintaman Lagu Vs. The State of Bombay the prosecution must establish in a case of poisoning (a) that death took place by poisoning, (b) that the accessed had the poison in his possession and (c) that the accused had an opportunity to administer the poison to the deceased. As already discussed, neither of these three elements had been established by the prosecution beyond all reasonable doubt. 9. The above lacuna in the prosecution case is sought to be made up by already on an extra judicial confession said to have been made by the Appellant before p.ws. 5, 6 and some others who were not examined in the case. On a scrutiny of the evidence of p.ws. 5 and 6 we find that their evidence regarding the extrajudicial confession is highly unsatisfactory. p.w. 5 stated that after the deaths of Naga and Gango, he (p.w. 5), Ghanashyam Padhan (p.w. 6) Leo Kisan, Dina Kisan and Albis Kisan took aside 1 he accused and asked him as to how Naga and Gango died and the accused told them that he had quarrel with Naga about land and he suspected Ganga to have killed by witchcraft the two children of the accused and that out of such anger and grudge he had mixed some poison with the handia to be taken by Naga and Gango and that they both died after taking handia. In cross-examination, he made it clear that this confession was made at about 4 p.m. on the date of occurrence. In cross-examination, he made it clear that this confession was made at about 4 p.m. on the date of occurrence. Later on in cross examination he said that he was examined by the police on the date of occurrence and also on the next day and that during his examination on the first occasion he did not tell the Investigating officer about the alleged confession. Why on that occasion he did not tell the police about it has not been explained. Still later this witness stated that the extra-judicial confession was made by the accused before them not on Monday the date of occurrence but on a Tuesday, at a bout 4 p.m. The evidence of p.w. 6 is no better. He stated during his examination in chief that at about 4 p. m. on Monday when the occurrence took place the accused confessed before him, p.w. 5 and some others that because Gango had killed his children by practising witchcarft on them he mixed poison with the handia. There was no mention about the alleged quarrel between the Appellant and Naga regarding lands. The police came to the spot on the night of Tuesday (5-11-1968) and the powder containing the poison was recovered from the house of the accused on the next day, that is, 6-11-1968. p.w. 6 stated in cross-examination that it is after recovery of the powder from the house of the accused that he was questioned by him and the other villagers and that it was at that time that he made the confession. The Appellant had denied having made any such confession. Apart from the fact that" extra-judicial confession is a very weak piece of evidence, the evidence regarding the same in this case is so discrepant and untrustworthy that no reliance can be placed on the same. Nor can one relying on this evidence came to the conclusion that the rat-killing poison which was recovered from the house of the accused was in his exclusive possession. 10. On a careful consideration of the evidence on record we feel that on the basis thereof it is not possible to hold beyond all reasonable doubt, however grave the suspicion may be, that the Appellant is guilty of the offence with which he was charged. 10. On a careful consideration of the evidence on record we feel that on the basis thereof it is not possible to hold beyond all reasonable doubt, however grave the suspicion may be, that the Appellant is guilty of the offence with which he was charged. We would accordingly allow this appeal, bet aside the conviction of the Appellant and the sentence imposed upon him and direct that he be set at liberty at once. K.B. Panda, J. 11. I agree.