V. GOPALASWAMY, J. ( 1 ) THIS appeal is preferred against the judgment of the Additional Sessions Judge, Koraput, Jaypora, convicting the accused-appellant under sections 302 and 201, I. P. C. and sentencing him thereunder to undergo imprisonment for life on the first count and to suffer rigorous imprisonment for seven years under the second count with a direction that the sentences should run concurrently. ( 2 ) THE prosecution case, briefly stated, is as follows: The accused and the deceased are residents of Pakeri village within Kalyan Singhpur P. S in Koraput district. On the morning of 8. 4. 1982, a Thursday, the deceased went to Kalyan Singhpur with Rs. 50/- for purchasing rice and other articles and thereafter he did not return home. From the next day onwards the relatives of the deceased and his co-villagers started searching for him but they could not find him. During the course of such search, on 14. 4. 1982 in the afternoon, the search party found a half burnt dead body lying at a little distance from Kurkuti Amba Jhola and there were also signs that the body was dragged to the place where it was found lying. Then the villagers thought that the deceased was murdered and that the half burnt dead body lying there belonged to him. As there was a quarrel between the accused and the deceased on Wednesday immediately preceding the date of the occurrence, the villagers had a suspicion against the accused that he might have been involved in the commission of the murder of the deceased. P. W. 6 orally reported about the occurrence to P. W. 7, the O. I. C. , K. Singh Police Station, and his oral report was reduced into writing and the same was treated as the F. I. R. in the case. On the basis of the F. I. R. the police proceeded with the investigation of the case and the investigation disclosed that it was the accused who committed the murder of the deceased. On completion of the investigation, charge sheet was submitted against the accused under sections 302/201, I. P. C. ( 3 ) THE plea of the accused is one of denial. No witness was examined on his behalf in support of the plea. ( 4 ) THE prosecution has examined in all seven witnesses to prove its case. On completion of the investigation, charge sheet was submitted against the accused under sections 302/201, I. P. C. ( 3 ) THE plea of the accused is one of denial. No witness was examined on his behalf in support of the plea. ( 4 ) THE prosecution has examined in all seven witnesses to prove its case. P. W. 1 is the doctor who examined the bones of the dead body and gave his report. P. W. 2 claims to be an eve-witness to the occurrence. P. W. 3, is a co-villager of the accused before whom the accused is said to have made the extra judicial confession that he killed the deceased. P. W. 4 the wife of the accused P. W. 5 is the wife of deceased. P. W. 6 is the informant in the case. P. W. 7 is the La. who investigated into the case. ( 5 ) OUT of the witnesses examined by the prosecution, P. W. 2 Sikoka Sombru is the only witness who claims to be an eye-witness to the occurrence. So his evidence merits careful scrutiny and deserves consideration at the out set. The evidence of P. W. 2 shows, that on the relevant Thursday the accused had snatched away the Tangia (M. O. I) held by the deceased and gave two blows with it on the head of the deceased, under a mango tree known as Kurtuki Amba Gachha, as a result of which the deceased fell down dead. Then the accused dragged the deceased to the Jhola which was at a distance of about 100 yards from the spot of the occurrence. It is in the evidence of P. W. 2 that the accused bad seen him at the time of the occurrence and that after seeing him the accused dragged the body of the victim to the Jhola. The evidence of P. W. 2 shows that eight days after the occurrence when the police came to their village, for the first time he disclosed about the occurrence before them. ( 6 ) P. W. 2 deposed that before stating about the occurrence before the 1. 0. he did not disclose about it to anybody else apprehending that the accused may take revenge against him. According to P. W. 2 the accused saw him witnessing the occurrence. ( 6 ) P. W. 2 deposed that before stating about the occurrence before the 1. 0. he did not disclose about it to anybody else apprehending that the accused may take revenge against him. According to P. W. 2 the accused saw him witnessing the occurrence. It is not the case of P. W. 2 that the accused had ever threatened him with danger to his life in case he disclosed before anyone about what he had seen. It is in the evidence of P. W. 5, the wife of the deceased, that on the very next day of the occurrence she along with the others of the village searched for the deceased, but they could not find him. P. W. 6 also deposed that the villagers searched for the deceased for about 5 days, but they could not find him. P. W. 2 is a co-villager of P. Ws. 5 and 6. When the entire villagers of Pakeri were engaged in searching for the deceased for days and in spite of such search when the deceased could not be traced, it must have been a sensation in the village and therefore, the version of P. W. 2 that he does not know if the wife of the deceased and others were in search of the deceased cannot be believed to be true. Obviously P. W. 2 is coming out with such a false version as he has no explanation as to why, if he had really witnessed the occurrence of assault on the deceased, he did not disclose about it before his co-villagers who were seriously engaged in searching for the deceased. If he would have disclosed before his co-villagers, who were seriously concerned about the missing of the deceased, that it was the accused who had assaulted the deceased to death then his co-villagers would have immediately taken steps to get the accused arrested and would have gone to defend him (P. W. 2) as against the accused. If he would have disclosed before his co-villagers, who were seriously concerned about the missing of the deceased, that it was the accused who had assaulted the deceased to death then his co-villagers would have immediately taken steps to get the accused arrested and would have gone to defend him (P. W. 2) as against the accused. The statement of P. W. 4 in cross-examination that P. W. 2 was also one of the persons who searched for the deceased exposes the utter falsity of the statement of P. W. 2 that he did not know if the deceaseds wife and others searched for the deceased and it also reveals that the conduct of P. W. 2 in joining the others for searching the deceased is not consistent with his version that he was an eyewitness to the occurrence of assault on the deceased. The evidence of P. W. 6 discloses that on the Wednesday following the date of the occurrence, the villagers, during the course of their search, found some bones lying in the Jhola near Kurkuti Ambagachha. P. W. 6 deposed that on the next day (Thursday) he and others went to the police station and lodged the F. I. R. From the evidence of P. W. 6 it is seen that it was only after finding the remnants of a. dead body, the F. I. R. was lodged, as the villagers took it for granted that the dead body must have been that of the deceased. The F. I. R. reveals that the informant and the others suspected the accused to be the author of the crime. The 1. 0. came to the village for investigating into the case only on Friday. So when the co-villagers of P. W. 2 started suspecting the accused from Wednesday, P. W. 2 could have safely disclosed about the occurrence, if he had really seen it, either on Wednesday or on Thursday, instead of waiting till the arrival of the 1. 0. on Friday. Whim all the above circumstances are taken into consideration, the plea of P. W. 2 that out of fear for the accused, he did not disclose about the occurrence before anybody else before the arrival of the 1. 0. in the village, cannot be accepted as true. According to P. W. 2, before the assault on the deceased of, the Tangia (M. 0. 0. in the village, cannot be accepted as true. According to P. W. 2, before the assault on the deceased of, the Tangia (M. 0. 1) was being held by the deceased, but the accused had, snatched that Tangia (M. 0. 1) from the deceased and dealt the blows. P. W. 4 is the wife of the accused. There is nothing in the evidence of P. W. 4 to disbelieve her when she stated that the accused had left the house holding a Tangia. So when the accused himself was carrying a Tangia, there was absolutely no need for him to snatch the Tangia (M. 0. 1) from the deceased for assaulting him. This is another circumstance which creates a serious doubt about the credibility of P. W. 2 when he deposed that the accused had assaulted the deceased after snatching away the Tangia (M. 0. 1) from him. In this context the very fact that there was no sufficient blood on the Tangia (M. 0. 1) to enable the Serglogist to give his opinion regarding the origin of the blood is a circumstance which is not without significance. In view of the infirmities from which the evidence of P. W. 2 suffers, as pointed out earlier, it would not be safe to accept his claim that he was an eye-witness to the occurrence. ( 7 ) IT was only the bones of the deceased which were sent to the Professor and Head of the Department of Forensic Medicine and Toxicology in the M. K. C. G. Medical College, Barhampur, for his opinion. The opinion of the Professor (P. W. 1) on examination of the bones discloses that they belonged to a person whose death way homicidal in nature and this opinion can be safely relied on. He further opined that the bones belonged to a male human being aged about 25 to 30 years as evident from the presenting anatomical characteristic features. In his cross-examination the Professor reiterated that the age of the deceased may be more than 30 by one or two years and the age cannot be Jess than 25 years. The prosecution has not elicited from any other witness about the age of the deceased. P. W. 5 is the wife of the deceased. In his cross-examination the Professor reiterated that the age of the deceased may be more than 30 by one or two years and the age cannot be Jess than 25 years. The prosecution has not elicited from any other witness about the age of the deceased. P. W. 5 is the wife of the deceased. From her deposition it is seen that she had given her age to be 40 years and the trial courts estimation of her age was also recorded to be about 40 years. So it sounds somewhat improbable that when the age of P. W. 5 was about 39 years by 11. 6. 1982, the date of examination of the bones in question by the doctor (P. W. 1), the age of her husband would be about 32 years. If the reliable evidence of the medical expert (P. W. 1) on the aspect of the age is taken into consideration, it creates a doubt whether at all the bones in question belonged to the husband of P. W. 5. ( 8 ) P. W. 4 was the wife of the accused. She stated in her chief-examination that her husband had told her that he had killed the deceased. This extra judicial confession said to have been made by the accused to his wife is a material piece of evidence which was relied on by the trial court in holding the accused guilty of the commission of the murder. But then, section 122 of the Evidence Act provides thus: Communications during marriage-No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other. TI Communication between spouses during marriage cannot be disclosed and deposed to by the spouse without the consent of the other. Consent cannot be implied. It is incumbent upon the court to ask a party against whom the evidence is to be given whether he or she would consent to the evidence being given and not to admit unless such consent is given. Consent cannot be implied. It is incumbent upon the court to ask a party against whom the evidence is to be given whether he or she would consent to the evidence being given and not to admit unless such consent is given. Admittedly in this case not such consent is given by the accused. Hence it is seen that the above evidence of P. W. 4 regarding the extra judicial confession said to have been made to her by her husband is clearly inadmissible under section 122 of the Evidence Act. ( 9 ) P. W. 3 deposed that on the Friday morning the accused had told him that he had killed the deceased and thereby he had committed a sin. P. W. 3 stated in cross examination that none else was present when the accused made this extra judicial confession before him. If really the accused had murdered the deceased and felt repentant about it, he would have confessed about his guilt before the other villagers as well. It is difficult to believe P. W. 3 when he claims that the accused had made the extra judicial confession exclusively to him few hours before the arrival of the police to the village and more so as there is nothing in the evidence of P. W. 3 to suggest that the accused was on intimate terms with him. ( 10 ) P. W. 3 deposed that on the Wednesday preceding the date of the occurrence there was some altercation between the deceased and the accused as the deceased alleged that the accused had taken away his salap. But in cross examination P. W. 3 admitted that the accused had a salap tree, and contradicting his own version in the chief-examination, he stated that the deceased had committed theft of so lap from the tree of the accused and this led to an altercation between them on the previous Wednesday. P. W. 2 stated in cross examination that the accused did not pick up quarrel with anybody in the village prior to the date of the occurrence. So P. W. 2 does not corroborate the version of P. W. 3 that there was a quarrel between the accused and the deceased on the Wednesday preceding the date of the occurrence. P. W. 2 stated in cross examination that the accused did not pick up quarrel with anybody in the village prior to the date of the occurrence. So P. W. 2 does not corroborate the version of P. W. 3 that there was a quarrel between the accused and the deceased on the Wednesday preceding the date of the occurrence. Hence it is seen that the prosecution evidence regarding the motive for the commission of the offence by the accused is also not convincing. ( 11 ) P. W. 7 the 1. 0. deposed that he seized the Gamuchhas M. Os. II and III from the person of the accused under the seizure list Ext. 8. The serologist's report discloses that both the s lid Gamuchhas were stained with human blood. On a perusal of the statement of the accused recorded under section 313, Cr. P. C. it is seen that no question was at all put to him regarding the seizure of M. Os. II and III from his person. So in the peculiar facts and circumstances of the present case, it would not be proper to make use of the evidence, that M. Os. II and III seized from the accused were stained with human blood, as an incriminating material against him without giving him an opportunity to explain the same. ( 12 ) FROM the evidence of the 1,0. it is seen that from the alleged spot of the occurrence he claims to have seized the blood stained earth under the seizure list Ext. 4. It is seen from the evidence that the earth so seized under Ex. 4 was sent to the Chemical Examiner. But from the Chemical Examiner's report Ext. 10 it is seen that no trace of blood was detected in the said earth and this is a circumstance which reveals that the investigation in the case is not perfect. 4. It is seen from the evidence that the earth so seized under Ex. 4 was sent to the Chemical Examiner. But from the Chemical Examiner's report Ext. 10 it is seen that no trace of blood was detected in the said earth and this is a circumstance which reveals that the investigation in the case is not perfect. ( 13 ) ON a careful consideration of the entire material on record, as discussed above, it is seen that there is no reliable evidence, on the basis of which it can be held that the accused had committed the murder of Hikaka Surudi Henct, we find that the prosecution has not been able to prove its case satisfactorily against the accused-appellant either under section 302, I. P. C or under section 201, I. P. C. and the accused is, therefore, entitled to an acquittal of the charges so levelled against him. ( 14 ) IN the result, we hereby set aside the order of the trial court convicting and sentencing the accused-appellant under sections 302/ 201, I. P. C. and direct that he be released forthwith. Accordingly, the appeal is allowed. Appeal allowed. .