D. M. PATNAIK, J. ( 1 ) THIS appeal from the jail is by the convict, sentenced to imprisonment for life by the learned Sessions Judge, Sundargarh, for murder of his wife Raimati. ( 2 ) PROSECUTION case is, on 30-11-1985 during evening hours, the appellant killed his wife Raimati with a sickle by cutting her throat. After this fact was made known to P. W. 1 who was relaxing in his house with others, by P. W. 4 all of them went to the house of the appellant and found Raimati lying dead inside the room with a cut injury on the neck with profuse bleeding. They went to the Sarpanch of the village. Since darkness had already set in, they could not report the matter at the police station which is far off the village. On the following day on 1-12-1985 they reported the matter at 8. 30 a. m. at Dhuruadihi Police Out-Post. The A. S. I. of the Out-Post entered the report in the station diary register which was subsequently registered at the Bhasma Police Station. After completion of the investigation, the appellant was charge-sheeted for the offence under Section 302, I. P. C. and thus stood his trial. ( 3 ) THE plea of the defence as is evident from the 313 statement is a total denial of the occurrence. ( 4 ) MR. M. Manuwar, the learned counsel appearing for the appellant assailed the findings of the learned Sessions Judge with regard to the material aspects of the case such as leading to discovery and extra-judicial confession. Mr. P. K. Mohanty, the learned Additional Government Advocate, on the other hand, while supporting the findings of the learned Sessions Judge submitted that the prosecution having been able to bring home the charge beyond reasonable doubt, the conviction should not be interfered with. The rival contentions of the learned counsel on both sides need careful examination. ( 5 ) THE finding of the learned Sessions Judge that the death of Raimati was homicidal is not challenged before this Court. All the same it would be proper to find out whether the finding is correct. P. W. 6 is the Doctor who conducted the autopsy. ( 5 ) THE finding of the learned Sessions Judge that the death of Raimati was homicidal is not challenged before this Court. All the same it would be proper to find out whether the finding is correct. P. W. 6 is the Doctor who conducted the autopsy. On external examination of the dead body, he found one incised wound of the size of 3" x 1/2" on the front side of the neck which had cut the muscles and vessels including the jugular veins and thyroid artery etc. The other two injuries, though incised, were found to be on the right hand fingers and were simple in nature. This external injury, according to the Doctor, had cut the trachea and blood clots were found in the larynx and trachea. The sterno mostoid muscles were found to have been cut. He was of opinion that the injury was ante mortem in nature and could be caused by a sharp cutting weapon like the sickle (M. O. IV ). The cause of death was on account of haemorrhage and shock due to the injury on the neck and which was sufficient in the ordinary course of nature to cause death. Thus the nature of the injury shows that it could not have been either accidental or suicidal. Hence, Raimati died of homicidal death. ( 6 ) THE conviction has been based on the circumstantial evidence on record. The circumstances which impelled the learned Sessions Judge to arrive at a conclusion about the commission of the offence by the appellant are (i) leading to discovery of weapon and (ii) extra-judicial confession by the appellant. ( 7 ) WE would like to take up first the finding of the learned Sessions Judge with regard to leading to the discovery of the, sickle (M. O. IV) under Section 27 of the Evidence Act. The reason given by the trial Court for believing the recovery of the weapon at the instance of the appellant is that the evidence of the investigating officer (P. W. 10) was found to be consistent with the 'recital' in the seizure list (Ext. 1) with regard to the circumstances of seizure of the court (sic) has relied on the evidence of the investigating officer and the witness to the recovery (P. W. 3) along with the memo of seizure (Ext. 1 ). 1) with regard to the circumstances of seizure of the court (sic) has relied on the evidence of the investigating officer and the witness to the recovery (P. W. 3) along with the memo of seizure (Ext. 1 ). For the purpose of appreciating as to the correctness of such a finding, one has to go through the memo of seizure wherein it has been mentioned that the appellant while in police custody confessed to have killed his wife with his own sickle and after having done so, he concealed the sickle in a box which was kept on a Mancha (a high place where household articles of assorted nature are kept) inside his house and disclosing this he led the investigating officer and the witnesses inside the house and brought out the concealed (Luchai Rakhithiba) sickle which was consequently seized by the investigating officer. Thus from the memo of seizure, the essential part of Section 27 of the Evidence Act is found to have been mentioned, that is, (i) the appellant gave the information to have concealed the sickle at a place mentioned above and (ii) led the police and the witnesses inside the house and brought out the same from such place of concealment. These two elements clearly satisfy the requirement of Section 27; of course not taking into account the confessional part of it that he killed his wife with his own sickle (emphasis supplied) which part is inadmissible. This aspect of the case of information and recovery has to judged in the light of the evidence on record. P. W. 10 is the investigating officer. In para 6 of his examination-in-chief, he stated that the appellant while in custody gave out that he concealed the sickle inside his house with which he had killed his wife and led him to his house, brought out the sickle and produced before him. He seized the sickle which he identified as (M. O. IV) and found the sickle to have been stained with blood and some hairs sticking to it. In para 17 of his cross-examination, he stated that he went inside the house being led by the appellant. Both the witnesses also went inside the house. In para 18 he admitted not to have given his personal search. In para 17 of his cross-examination, he stated that he went inside the house being led by the appellant. Both the witnesses also went inside the house. In para 18 he admitted not to have given his personal search. P. W. 3 is the witness leading to the discovery as well as the seizure of the sickle as per Ext. 2, the seizure list. In para 5 of his examination-in-chief, he stated that the appellant while in police custody gave out that he had kept the sickle, with which he killed his wife, inside his house and led the police inside his house and brought out the sickle from inside the house and produced it before the police. The police seized the sickle which was found stained with blood and some hairs sticking to it. The police prepared the seizure list which he signed. He also identified the sickle as stated by him in para 8. In para 16 of the cross-examination he admitted not to have gone inside the room where from the appellant brought the sickle. He further admitted that sickles would be available in the houses of 'cultivators'. The room wherefrom the sickle was brought out was visible from outside. The police followed the appellant inside that room. ( 8 ) READING Ext. 1 and the evidence of these two witness as to the manner in which the appellant gave the information as to the place of concealment and recovery of the sickle in question from the place where it was so concealed do not inspire confidence in our mind to believe the recovery of the same at the instance of the appellant. It is profitable to go through some of the decisions mentioned below for proper appreciation of the point in issue. We may refer to a caseof the SC reported in AIR 1979 SC 1949 : (1979 Cri LJ 1310) Pohalya Motya Vlavi v. State of Maharashtra. The accused in that case vide giving discovery of the spear in question had stated to have hidden the same in the grass of her field on the southern side of her house and that she was ready to produce the same. The accused in that case vide giving discovery of the spear in question had stated to have hidden the same in the grass of her field on the southern side of her house and that she was ready to produce the same. Their Lordships held :"the recovery of a blood stained spear befomes incriminating not because of its recovery at the instance of the accused but the element of criminality tending to connect the accused with the crime lies in the authorship of concealment, namely, that the appellant who gave information leading to its discovery was the person who concealed it. "___ the essential elements of Section 27 of the Act of which the prosecution can take help of finding out one of the very incriminating circumstances against the accused is that the appellant in the present case had concealed the sickle at a place which was within his special knowledge and that pursuant to the information so given by him, he led the police and the witnesses and gave recovery of the sickle from the place of such concealment. In the evidence discussed, both the elements are found to be absent. P. Ws. 3 and 10 are, silent as to the information given by the appellant that the weapon was kept concealed in a box kept on the Mancha in his house. Both the witnesses are also silent that the appellant brought out the sickle from the box which was kept inside the house. Both of them have merely stated that the appellant gave the information to have concealed the sickle in his house and on the information given by him, he led the police and the witnesses to the house and brought out the sickle from the house. Surprisingly P. W. 3 did not support the version of P. W. 10 that he had gone inside the house of the appellant; whereas, P. W. 10 in the cross-examination stated that the wit nesses also went inside the house of the appellant. This is a very material inconsistency in the prosecution case with regard to the fact of recovery of the sickle in question at the instance of the appellant. This is a very material inconsistency in the prosecution case with regard to the fact of recovery of the sickle in question at the instance of the appellant. ( 9 ) IN another decision reported in AIR 1979 SC 1262 : (j979 Cri LJ 1075) Bahadul v. State of Orissa the Court held that although the accused produced the weapon of offence from beneath his cot and handed over to the Police without any statement and that the place from where it was recovered was accessible to all and that in the facts and circumstances of the case, there was no statement under Section 27 of the Evidence Act, the mere recovery thereof could not be admissible under Section 27 of the Act. According to their Lordships what the accused had done was merely to take out the axe from beneath the cot. There was nothing to show that the accused had concealed it at a place which was known to him alone and no one else other than the accused had knowledge of it. Therefore, in their Lordships' view, in the circumstances, the mere production of the axe would not be sufficient to convict the appellant. ( 10 ) THUS from the decisions mentioned above, it is clear that the prosecution has to establish that, the accused while in custody gave the information as to the place of concealment of the weapon of offence and thereafter led the police and the witnesses to the place of such concealment and gave recovery of the same from that place. This fact is found to have not been established in the present case at hand and, therefore, we are at a loss to agree with the finding of the learned Sessions; Judge with regard to the facts of recovery of the sickle at the instance of the appellant. ( 11 ) NEXT we would like to take up the extra-judicial confession. The extra-judicial confession made by the appellant before P. Ws. 1 and 4 has been considered by the learned Sessions Judge as one of the corner stones of the prosecution case. Dealing with the acceptability of the testimonies of P. Ws. 1 to 4, the learned Sessions Judge has observed in para 14 of his judgment that the confession made by the appellant before these P. Ws. 1 and 4 has been considered by the learned Sessions Judge as one of the corner stones of the prosecution case. Dealing with the acceptability of the testimonies of P. Ws. 1 to 4, the learned Sessions Judge has observed in para 14 of his judgment that the confession made by the appellant before these P. Ws. was found to be voluntary and the version of the witnesses as to the confession was true and that the witnesses had no ill-feeling with the appellant and, therefore, according to the learned Sessions Judge, there was no reason to disbelieve the evidence of these witnesses. This finding of the learned Sessions Judge holding the extra-judicial confession as a pointing circumstance against the appellant needs examination. ( 12 ) P. W. 1 reported the matter orally in Dhuruadihi Police Out-Post which was registered as S. D. E. No. 9 dated 1-12-85. This report has been marked as Ext. 12. This indicates, while lodging the report to the police, P. W. 1 stated to have heard about the confession from P. W. 4 to whom the appellant made the confession. In para 3 of his examination-in-chief he stated that on his way from the house of the appellant, he found him sitting at the Dharamsala. On his asking, the appellant admitted to have killed his wife with a sickle. This is conspicuously absent in Ext. 12. There is no mention about the fact that P. W. 1 asked the appellant and he admitted before him to have killed his wife. Secondly, in the evidence he stated that on his way to the house of Sarpanch (P. W. 5) he saw the appellant at Dharamsala, whereas, in the first information report he stated that he saw the appellant in the house of the Sarpanch. Thirdly, he did not give out the exact words spoken by the appellant while confessing his guilt. Fourthly, in 161 statement he stated that he along with others went to the house of Sarpanch where all of them found the appellant in the company of some other villagers. In para 6 of his cross-examination he clearly stated that the appellant was found sitting alone in the Dharamsala. Fourthly, in 161 statement he stated that he along with others went to the house of Sarpanch where all of them found the appellant in the company of some other villagers. In para 6 of his cross-examination he clearly stated that the appellant was found sitting alone in the Dharamsala. It is worthwhile to mention that in the statement before the police he stated to have seen the accused in the house of the Sarpanch; wheras, in the evidence he stated to have seen him sitting alone in the Dharamsala. We consider that P. W. 1 was never a witness to the extra-judicial confession since his statement under section 161, Cr. P. C. and the evidence are found to be inconsistent. That apart from the report before the police (Ext. 12) it is clear that P. W. 4 informed him that the appellant had already made a confession. P. W. 2 stated that on 30-11-85 on a Saturday at about 5. 30 to 6 p. m. while he was near his house, the appellant went to him shouting that 'he had killed his wife'. In para 4 of his cross-examination he stated that while he was entering inside his house (presumably he meant the accused's house) the appellant came shouting that he had killed his wife. This witness in para 2 of his examination-in-chief stated that after hearing from the appellant about the incident he went to his house by a cycle. Therefore, it could be said that the house of the appellant was not that near to the house of P. W. 2 for which P. W. 2 used a cycle to reach the place. The very fact that at one stage he stated that the confession was made while he was in his own house and at another stage he stated the confession to have been made as if near the house of the appellant creates a doubt about the blurting confession. P. W. 3 happened to be a neighbour of the appellant. He stated, in between 5. 30 and 6 p. m. , while he was returning from his field he saw the appellant on the way. He met the appellant on the way and heard him shouting that he had killed his wife. When he asked him as to why he killed her, the appellant said "marita Deli". He stated, in between 5. 30 and 6 p. m. , while he was returning from his field he saw the appellant on the way. He met the appellant on the way and heard him shouting that he had killed his wife. When he asked him as to why he killed her, the appellant said "marita Deli". In the 161 statement the material omission with regard to such statement is that he never stated before the police to have asked the appellant and that in reply the appellant made the above confession. That apart, from his evidence it is clear that he heard the appellant shouting that he had killed his wife. Therefore, there is nothing from his mouth that the appellant pointedly made a confession to this witness. From the tenor of his evidence it is clear that he saw the appellant shouting to have killed his wife. P. W. 4 is the witness who seems to be the first person to know about the incident from the appellant. He stated in his evidence that while returning from the field he found the appellant was proceeding towards his house shouting "mor Kanyaku Marideli". Hearing this, the witness went to his house. In his 161 statement he did not utter the words as mentioned above. He rather stated the appellant saying to have cut her throat with a sickle. The words thus stated by him in the evidence are conspicuously found absent in the 161 statement and this contradiction has been confronted to P. W. 4. ( 13 ) THUS on a close scrutiny of the evidence of the prosecution witnesses as mentioned above, we find lack of equivocation in the evidence of the witnesses before the court and as already mentioned above, this is particularly with regard to the place where the appellant made the confession (evidence of P. W. 2), omission with regard to the exact words uttered by the appellant (as in the case of the evidence of P. Ws. 3 and 4 ). Besides what has been mentioned above there are certain other materials circumstances of preponderating importance which the learned Sessions Judge has not beenable to appreciate. They are as follows: p. W. 9 as on 1-12-85 was the A. S. I. in charge of Dhuruadihi Police Out-Post under Bhasma Police Station. 3 and 4 ). Besides what has been mentioned above there are certain other materials circumstances of preponderating importance which the learned Sessions Judge has not beenable to appreciate. They are as follows: p. W. 9 as on 1-12-85 was the A. S. I. in charge of Dhuruadihi Police Out-Post under Bhasma Police Station. P. W. 1 made the oral report before him which the latter entered as station diary entry No. 9 dated 1-12-85. P. W. 1 stated at the time of lodging the report that the appellant had killed his wife. This report has been duly proved. P. W 1 in his evidence has corroborated to the facts he stated as mentioned in the report. The same has also been duly proved by P. W. 9. It is mentioned in the report that P. W. 1 and others, with him reached the house of the Sarpanch where they found the appellant. According to this report, the persons with P. W. 1 challenged the appellant (Golakale ). This obviously means that all of them challenged him or chided or chastised him for his misdeed. It is also in the evidence of P. W. 5, the Sarpanch that all those persons including P. W. 1 and the Grama Rakhi were there and the appellant was also in their midst. In such a situation we cannot comprehend that the appellant could have come out with a confession out of his free volition nor it could have been voluntary in nature. The very fact that, in the report (Ext. 12) it is found that P. W. 1 and all others metthe appellant and challenged him, the possibility of a direct or indirect inducement for such a confession could not be ruled out. That apart, P. Ws. 2 and 4 stated differently. P. W. 2 stated that the appellant went to him shouting that he had killed his wife. P. Ws. 3 and 4 stated that they met the appellant on the way who was shouting to have killed his wife. The evidence of these witnesses are clear to the extent that none of them stated that the confession was addressed to any one of them nor collectively to all of them one at the same time. P. Ws. 3 and 4 stated that they met the appellant on the way who was shouting to have killed his wife. The evidence of these witnesses are clear to the extent that none of them stated that the confession was addressed to any one of them nor collectively to all of them one at the same time. The only conclusion can be drawn from the evidence of these witnesses is that the appellant was found going on the village road shouting that he had killed his wife. To such a situation and conduct of the appellant sponotaneously, certain searching questions come to our mind. They are, why the appellant behaved in such a manner?; why did he not confide in any one of the witnesses in giving out his misdeed? what was the reason for the appellant to shout in the village road either for the purpose of giving out rapsodies to manifest an act of bravery in killing his wife or that it was merely a shouting in repentance for the misdeed or that it was result of a perturbed mind after the alleged pernicious act ?. The answers to these questions are certainly difficult to find out. In such circumstances, we decline to accept as to what the appellant said was the confession of his guilt for the simple reason that a confession connotes and that all its necessary elements mean that it must be a statement unequivocally admitting the guilt of the accused and that such a confession must be addressed to someone and not that one would go round the village shouting about the misdeed which he knew would land him in trouble. From the evidenceof P. W. 5, the Sarpanch and a co-villager of the appellant, it is found that at about 7 p. m. while he was at village Biribira P. W. 3 informed him about the incident and he reached his village at about 8. 30 to 9 p. m. Reaching his house he sent for the daughter and son-in-law of the appellant who were at Biribira. They came and went to the house of the appellant. P. W. 5 also went to the house of the appellant. 30 to 9 p. m. Reaching his house he sent for the daughter and son-in-law of the appellant who were at Biribira. They came and went to the house of the appellant. P. W. 5 also went to the house of the appellant. On the way he met the Grama Rakhi of the village and instructed him to go to the house of the appellant and guard the dead body and the appellant till arrival of the police. He sent P. W. 1 and one Baleswar Nayak and Suva Nayak to report the occurrence. He further stated, while he was in his house sometime thereafter the Grama Rakhi brought the appellant and asked him (P. W. 5) as to where to keep the appellant. By then, according to this witness Sukuru (P. W. 1), Baleswar and Suvakar had not left for the police station. This evidence of P. W. 5 shows that the appellant was in the midst of the villagers as well as the Grama Rakhi. Therefore, the evidence of the witnesses has to be believed that the appellant gave the confessional statement while in the house of the Sarpanch when P. W. 1 was present along with others and such a statement was also made when the Grama Rakhi was present. Therefore, the statement is inadmissible as the Grama Rakhi is a police officer as has been held by this Court in the case reported in (1981) 52 Cut LT 126 : (1981 Cri LJ 1452) Dusasan Bhoi v. State of Orissa following the decision report in (1977) 43 Cut LT 5 12 : (1977 Cri LJ NOC 132) Madan alias Undu Barik v. The State. Reading the report (Ext. 12) and the evidence of the Sarpanch (P. W. 5), we have no hesitation to hold that the Grama Rakhi was present along with P. W. 1 and others, and the accused made a confession before the Grama Rakhi. For the reasons stated above, we have no hesitation to discard the extra-judicial confession made by the appellant. It is profitable to refer to the settled proposition of law laid down with regard to the extra-judicial confession. 13a. In the case reported in (1972) 3 SCC 759 : (1972 Cri LJ 1260) Rahim Beg v. State of U. P. , it has been held by their Lordships that "extra-judicial confession is a weak piece of, evidence". It is profitable to refer to the settled proposition of law laid down with regard to the extra-judicial confession. 13a. In the case reported in (1972) 3 SCC 759 : (1972 Cri LJ 1260) Rahim Beg v. State of U. P. , it has been held by their Lordships that "extra-judicial confession is a weak piece of, evidence". The evidence in this case is also of a frail nature and does not inspire confidence. The learned counsel for the appellant cited a number of decisions. It is rather imperative to mention two of the decisions for the purpose of the present case at hand. In the case reported in (1983) 1 Crimes 150 : (1983 Cri LJ 149) Heramba Brahma v. State of Assam, their Lordships held that it was dangerous to rely upon such an extra-judicial confession which did not make out the sense without exact reproduction of the words spoken by the witnesses. The same is the case at hand. The words spoken are uncertain and the place where the confession was made has been differently described and also the manner in which the appellant gave out the confession. We have already discussed in the foregoing paragraphs the exact words which brought out the extra-judicial confession as per the evidence of the witnesses did not find place in the 161 statement recorded by the investigating officer and, therefore, they were material contradictions within the meaning of the explanation to Section 161 Cr. P. C. Therefore, such extra-judicial confession cannot be accepted. ( 14 ) ANOTHER important factor to which perhaps the learned Sessions Judge was oblivious is the motive of the appellant for the alleged murder. The motive that betook the appellant in manifesting a criminal proclivity is rather shrouded in mystery. The prosecution case is silent about the motive of the appellant to commit murder of his own wife. The apex court as well as this High Court in the cases before them on various occasions have pointed out time without numbers that in a case where evidence is believed and accepted the question of motive only becomes academic in nature. But it is just opposite in the present case at hand. Here is a case where the entire prosecution case is based on circumstantial evidence like leading to discovery of the sickle (M. O. IV) and the extra-judicial confession made by the appellant. But it is just opposite in the present case at hand. Here is a case where the entire prosecution case is based on circumstantial evidence like leading to discovery of the sickle (M. O. IV) and the extra-judicial confession made by the appellant. Both the circumstances have been disbelieved and, therefore, we have recorded a finding of dissent from the findings of the lower court. In such a case absence of motive is equally important as has been held in 1962 (2) Cri LJ 354 : ( AIR 1962 Cal 504 ) Arun Kumar Banerjee v. State, where it has been held "question of motive is of great importance in circumstantial evidence and where there is absence of such motive, the court should carefully examine this absence of motive as a circumstance in favour of the accused". Therefore, since the prosecution has not come forward with the motive, this would weigh in favour of the appellant since we have disbelieved the two important circumstantial evidence led by the prosecution. ( 15 ) IN the result, the prosecution having failed to prove its case beyond reasonable doubt, the judgment of conviction and sentence is set aside. The appellant be set at liberty forthwith. ( 16 ) D P. MOHAPATRA, J. : -. I agree. Appeal allowed.