ANTARYAMI SAHU v. STATE OF ORISSA — 1993 DIGILAW 331 (ORI)

B. N. DASH, J. ( 1 ) THE appellant Antaryami Sahu was been convicted under Section 304 Part - II of the Indian Penal Code (for short, the IPC) and sentenced to undergo rigorous imprisonment for three years by the learned Sessions Judge, Dhenkanal for having killed his wife Susama (hereinafter to be referred to as the deceased) on 24. 8. 1983 at about 6 A. M. ( 2 ) IN short, the prosecution case is that the accused-appellant belonging to village Kalada married the deceased who is the daughter of Pravakar Sahu (P. W. 3) of village Tuianga in the year 1981 and kept her in his house. At that time the accused was serving as a tax collector in Talcher Municipality. After their marriage they could not live a happy conjugal life for long as the accused started suspecting her chastity. Due to frequent absence of the accused from his house, the deceased was living at times in the house of her parents situated at a distance of about 22 to 23 miles from the house of her in-laws and at times in the house of the accused. The accused took Dikshyat (discipleship) and giving up service went away to Paradap where he stayed for 2 to 3 months for such long absence of the accused the deceased went away to her parents house. After return of the accused to his house, information was sent through one Kulamani Sahu (not examined) on 22. 8. 1983 that the accused was seriously ailing for which the deceased should be sent to his house. After receiving such information the deceased came to the house of the accused on the very same day which was a Monday along with her uncle Pandav Sahu (P. W. 1) mother, aunt and her younger sister and reached there at about 10 P. M. Since the ailment of the accused was not very serious as reported, P. W. I and others who had gone to the house of the accused returned to their house leaving the deceased there on the next day i. e. 23. 8. 1983. At that time the father of the decaled (P. W. 3) was serving as an operator in the Talcher Thermal Station and on hearing front his nephew Dorga Sahu (not examined) about the ailment of the accused on 23. 8. 8. 1983. At that time the father of the decaled (P. W. 3) was serving as an operator in the Talcher Thermal Station and on hearing front his nephew Dorga Sahu (not examined) about the ailment of the accused on 23. 8. 1983 he went to the house of the accused in village Kalada in be company of his friend Sudarsan Behera (P. W. 4) in two separate bi-cycles covering a distance of about 7 miles. After their arrival in the house, they took their dinner and slept in the entrance room whereas the accused and the deceased slept in their bed-room and the other family members consisting of the accusers father Trilochan Sahu (P. W. 9) and his two other unmarried sons and one unmarried daughter and one divorced sister slept in other rooms. In the following early morning of 24. 8. 1983 when P. Ws. 3 and 4 got up they found that the bi-cycles of P. W. 4 which had been kept along with the bi-cycle of P. W. 3 in the inner courtyard of the accusers house was not there and thinking that the some might have been taken casually by someone they went outside for the purpose of easing. After finishing such work when they returned to the house of the accused they found that the bicycle of P. W. 4 was there in front of the house under lock and key. They got themselves ready to return to their place of working and when they went to the inner courtyard to take permission of the accused and his father for their departure they found to their utter surprise that the accused was moving in an agitated mood holding a Katari (M. O. IV), while the deceased was sweeping the inner courtyard with the help of a broomstick. At that point of time, the accused rushed to the deceased and holding the tuft of her hairs dealt Katari blows to her neck of which she fell down there. The father and one of the brothers of the accused who were standing on the adjoining Verandah did not even arise protest. Being frightened at such sight, P. Ws 3 and 4 came outside and called some villagers who were cleaning their mouths and doing other works but they refused to come. The father and one of the brothers of the accused who were standing on the adjoining Verandah did not even arise protest. Being frightened at such sight, P. Ws 3 and 4 came outside and called some villagers who were cleaning their mouths and doing other works but they refused to come. Thereupon, while P. W. 3 left for his village on foot for some distance and by- bus for the remaining distance leaving his bicycle (M. O. I), umbrella (M. O. II), and pair of hawai chapals (M. O. III) in the inner courtyard, P. W. 4 carried his bicycle to a nearby house where with the help of a SANOWASHI the lock of the bicycle was opened and then he left for his place of working in that bicycle. On his return to his house in village Turanga, P. W. 3 disclosed the incinerate to his family members but finding no male person to whom he could send to the house of the accused to ascertain the condition of the do he left for Angul where ill the electric office he met his brother (P. W. I) and disclosed the incident. Thereafter their nephew Golak Sahu (not examined) was sent to the house of the accused to ascertain the condition of the deceased and P. W. 1 went to Parjang Police Station. Within an hour or two the said Golak Sahu came to the said Police Station and informed about the death of the deceased. Accordingly, P. W. 1 got the F. I. R. (Ext. 1) written by another person and submitted the same at the said Police Station. ( 3 ) DOING investigation the police seized the bicycle, chapals and umbrella of P. W. 3 from the house of the accused, as per the seizure list Ext. 6. The Katari (M. O. IV) was also seized from the spot under Ext. 9. Some sample earth and bloodstained earth were also seized from the spot under Ext. 7. Inquest over the dead body of the deceased was held, as per Ext. 2 and thereafter the same was sent for postmortem examination to Kamakshyanagar Sub-Divisional Hospital along with the dead body challan Ext. 12 through a constable. The incriminating materials were sent for chemical examination to the State forensic Science Laboratory, Rasulgarh. The accused could not be arrested as he was absconding but subsequently he surrendered in court. 2 and thereafter the same was sent for postmortem examination to Kamakshyanagar Sub-Divisional Hospital along with the dead body challan Ext. 12 through a constable. The incriminating materials were sent for chemical examination to the State forensic Science Laboratory, Rasulgarh. The accused could not be arrested as he was absconding but subsequently he surrendered in court. After completion of investigation, charge-sheet having been submitted, the accused, after commitment of the case, faced trial for the offence punishable u/s. 302 I. P. C. ( 4 ) THE defence was one of denial. The accused admitted that P. Ws. 3 and 4 had in fact came to their house in the night of 23. 8. 1983 but according to him, they had come along with one Dhaneswar Garnaik by bus and they had all left their house when he woke up. It was further pleaded by him that due to his ailment he had gone to the house of a Kabiraj situated in a nearby village to get some medicines and by the time he returned to his house the deceased was already killed. Seeing such ghastly scene he went away and ultimately surrendered in court. In order to prove such defence, three witnesses were examined of whom D. W. 1 was the person who allegedly came to the house of the accused along with P. W s. 3 and 4 and returned with them early in the morning of the date of occurrence; D. W. 2 is said to be the person who saw P. Ws. 3 and 4 and D. W. 1 moving in one bus together on 23. 8. 1983; D. W. 3 is the so-called Kabiraj to whom the accused had approached for medicine. ( 5 ) IN order to prove its case, the prosecution examined as many as 12 witnesses of whom P. Ws. 1, 3, 4 and 9 have already been introduced out of the remaining witnesses, P. Ws. 2, 5, 6 and? are the witnesses to the seizures; P. W. 8 is the constable who had accompanied the dead body of the deceased to Kamakshyanagar Sub-Divisional Hospital; P. W. 10 is the Graouakshi who had guarded the dead body of the deceased till the arrival of the police; and P. Ws. 11 and 12 are respectively the investigating officer and the medical officer who conducted the postmortem examination. 11 and 12 are respectively the investigating officer and the medical officer who conducted the postmortem examination. On a consideration of the entire evidence on record, the learned Sessions Judge believed the prosecution case but came to hold that the action of the accused was on account of sudden provocation which falls within the exception (1) of Section 300 I. P. C. Accordingly, he convicted and sentenced the accused as stated above. Being aggrieved by such judgment and order, the accused has filed Criminal Appeal No. 77 of 1985 and being dissatisfied with the order of acquittal u/s 302 I. P. C. the In order to prove its case, the prosecution examined as many as 12 witnesses of whom P. Ws. 1, 3, 4 and 9 have already been introduced out of the remaining witnesses, P. Ws. 2, 5, 6 and? are the witnesses to the seizures; P. W. 8 is the constable who had accompanied the dead body of the deceased to Kamakshyanagar Sub-Divisional Hospital; P. W. 10 is the Graouakshi who had guarded the dead body of the deceased till the arrival of the police; and P. Ws. 11 and 12 are respectively the investigating officer and the medical officer who conducted the postmortem examination. On a consideration of the entire evidence on record, the learned Sessions Judge believed the prosecution case but came to hold that the action of the accused was on account of sudden provocation which falls within the exception (1) of Section 300 I. P. C. Accordingly, he convicted and sentenced the accused as stated above. Being aggrieved by such judgment and order, the accused has filed Criminal Appeal No. 77 of 1985 and being dissatisfied with the order of acquittal u/s 302 I. P. C. the state has filed Government Appeal No. 41 of 1985. Since both the appeals arise out of the same judgment, both of them were heard together and are being disposed of by this judgment. ( 6 ) MISS. S. Rath, the learned counsel for the appellant has contended that the learned Sessions Judge went wrong in believing the testimony of P. Ws. 3 and 4 inasmuch as their evidence is full of contradictions and improbabilities. According to her, if the evidence of P. Ws. ( 6 ) MISS. S. Rath, the learned counsel for the appellant has contended that the learned Sessions Judge went wrong in believing the testimony of P. Ws. 3 and 4 inasmuch as their evidence is full of contradictions and improbabilities. According to her, if the evidence of P. Ws. 3 and 4 are disbelieved then the other circumstance allegedly appearing against the accused is quite insufficient to characterise him as the author of the crime. The learned Addi. Government Advocate has, on the other hand, urged that the learned Sessions Judge was perfectly justified in relying on the testimony of P. Ws. 3 and 4 in support of his finding that as a result of the assaults by the accused with the help of the Katari (M. O. IV) the deceased met her instantaneous death. But according to him, there is absolutely no legal evidence to show that as a result of either grave or sudden provocation the accused dealt the Katari blows and as such, there was no occasion for the learned Sessions Judge to acquit the accused under Section 302 I. P. C. particularly when there were large number of serious injuries on the dead body of the deceased at the time of post-mortem examination. Otherwise, stated, his substantial argument is that the accused should have been convicted and sentenced for the offence punishable under Section 302 I. P. C. In view of these rival contentions, the points that arise for determination are: (i) Whether the evidence of P. Ws. 3 and 4 is worthy of credence and if not, whether the other circumstance appearing against the accused is conclusive to hold that he was the author of the crime; and (ii) Whether there is legal evidence on record to show that the action of the accused falls within the exception (1) of Section 300 I. P. C. as held by the learned Sessions Judge and if not, whether the accused can be convicted under section 302 I. P. C. It may not be necessary to examine point no. (ii), if it is found that the evidence of P. W s. 3 and 4 are not creditworthy and the other circumstance appearing against the accused is not conclusive to characterise him as the author of the crime. So, let us first proceed to examine the evidence of P. Ws. (ii), if it is found that the evidence of P. W s. 3 and 4 are not creditworthy and the other circumstance appearing against the accused is not conclusive to characterise him as the author of the crime. So, let us first proceed to examine the evidence of P. Ws. 3 and 4 who, as stated above, have claimed having seen the alleged occurrence. ( 7 ) AS stated earlier, P. W. 3 is the father of the deceased and P. W. 4 is the friend of P. W. 3 being co-employee in the Talcher Thermal Station and having their residential quarters adjacently. Both of them have unequivocally deposed that they went to the house of the accused in village Kalada on 23. 8. 1983 which was a Tuesday and passed the night in the entrance room of that house. This assertion of P. Ws. 3 and 4 has not only been corroborated by the father of the accused (P. W. 9) but also admitted by the accused in his statement u/s. 313 Cr. P. C. All that P. W. 9 and the accused have added is that along with P. Ws. 3 and 4 Dhanaswar Garnaik (D. W. 1) had also come and all of them left their house together in the following morning. The learned Sessions Judge has disbelieved the evidence of D. W. 1 indicating that he had gone to the house of the accused along with P. Ws. 3 and 4 and they all returned together in the following morning and we have absolutely no hesitation to concur with such riding of the learned Sessions Judge for the reasons given by him; Under these circumstances, there is no difficulty for us to conclude that in the night preceding the alleged occurrence P. Ws. 3 and 4 were very much present in the house of the accused. But, as stated earlier, the defence having asserted that P. Ws. 3 and 4 had already left the house in question by the time the alleged occurrence took place, the evidence of P. Ws. 3 and 4 that they had seen the actual occurrence needs careful scrutiny. 3 and 4 were very much present in the house of the accused. But, as stated earlier, the defence having asserted that P. Ws. 3 and 4 had already left the house in question by the time the alleged occurrence took place, the evidence of P. Ws. 3 and 4 that they had seen the actual occurrence needs careful scrutiny. ( 8 ) P. W. 3 has deposed that in the morning after returning from the tank where he along with P. W. 4 had gone for the purpose of easing, when they went inside the house of the accused to take permission for their leaving his house, he saw the accused standing in the inner courtyard holding a Katari and the deceased sweeping the very same courtyard by a broomstick and at that point of time the accused rushed towards the deceased and catching hold of the tuft of her hairs gave blows on the back side of her neck by means of that Katari. During cross-examination his evidence was as under: I have seen the accused assaulting my daughter while I was standing on the courtyard just below the eye water falls. I have seen only one blow given by the accused where after she fell down there. She was assaulted on the inner courtyard and not on the inner courtyard verandah. She was assaulted at a distance of about 10 feet from the inner verandah I ran away immediately she fell down. I had not raised any hullah from inside the house when I saw the occurrence. My companion Sudarsan was also standing near me just below the verandah. He also did not raise any hullah there. Neither of us made any attempt to intervene when the accused caught hold the tuft of my daughter. I cannot say exactly for what reason the accused assaulted my daughter. My companion Sudarsan was also standing near me just below the verandah. He also did not raise any hullah there. Neither of us made any attempt to intervene when the accused caught hold the tuft of my daughter. I cannot say exactly for what reason the accused assaulted my daughter. ( 9 ) P. W. 4 has deposed that on the date of the occurrence early in the morning while he and P. W. 3 were inside the entrance room of the accuseds house and preparing themselves to return to their place, he heard the deceased crying BAPA MART GALl BAPA MART GALlt (Father I am dying, Father I am dying) and on hearing such cry when he went towards the inner court yard, he saw from a distance of 20 to 25 feet from the threshold of that entrance room that the deceased was lying on the verandah of the house and the accused was standing on that verandah close to her holding a Katari. It is further asserted by him that he saw the accused giving a Katari blow on the neck of the deceased while she was lying on the verandah and at that time P. W. 3 had already gone down the inner verandah. It is admitted by him that he did not raise any hullah after seeing the assault on the deceased. According to him, he disclosed the incident to those three persons who were present while he was unlocking his bicycle near the house of a front door neighbour by means of a SANDWASHI. But it is admitted by him that after disclosure of the incident, those three persons did not make any further inquiry about the occurrence and that he does not know their names. ( 10 ) THE above narration of the evidence of P. Ws. 3 and 4 undoubtedly shows that they are not unanimous on many material particulars. But it is admitted by him that after disclosure of the incident, those three persons did not make any further inquiry about the occurrence and that he does not know their names. ( 10 ) THE above narration of the evidence of P. Ws. 3 and 4 undoubtedly shows that they are not unanimous on many material particulars. While P. W. 3 has deposed that they saw the alleged occurrence when they casually went to the inner courtyard of the house of the accused to take his permission for their leaving his house, the evidence of P. W. 4 is to the effect that while he was there in the entrance room of the accuseds house along with P. W. 3 he heard the deceased crying BAPA MART GALl BAPA MART GALl and such cry prompted them to go to the inner courtyard of that house. Again, while P. W. 3 has deposed that when he and P. W. 4 went down the inner verandah to the inner courtyard, the accused who was there in the courtyard holding a Katari, caught hold of the tuft of hairs of the deceased and dealt a Katari blow on the back side of her neck, the evidence of P. W. 4 is silent on that score. On the other hand, his evidence is that when he went to the threshold of the entrance room towards the courtyard he saw the deceased lying down had the accused giving one Katari blow on his neck. It is nonetheless significant to note that while according to P. W. 3 the Katari blow by the accused was given inside the inner courtyard at a distance of about 10 feet from the inner verandah, the evidence of P. W. 4 is to the effect that such blow was given when the deceased was lying on the inner verandah. It is further pertinent to note that while P. W. 3 has asserted that after seeing the assault he went outside and called those persons who were cleaning their mouths and doing other works but they declined to come, the evidence of P. W. 4 is silent on that score. All these contradictions which are on material particulars about the alleged occurrence make their evidence quite suspicious. ( 11 ) LEAVING apart the above contradictions in the evidence of P. Ws. All these contradictions which are on material particulars about the alleged occurrence make their evidence quite suspicious. ( 11 ) LEAVING apart the above contradictions in the evidence of P. Ws. 3 and 4, their conduct at the time of and subsequent to the alleged occurrence appears to be contrary to ordinary human conduct. It is admitted by both of them that at the sight of the assault they did not raise hue and cry inside the house. Such conduct appears to be somewhat unnatural particularly on the part of P. W. 3 who is the father of the deceased, but we do not like to attach much importance to such conduct because since the accused was then armed with a deadly weapon i. e. a Katari, P. Ws. 3 and 4 who may be timid persons might have behaved in the above manner, but it is not understandable how they left the place without intimating the incident to the Gramrakhi of the village (P. W. 10 ). It is admitted by P. W. 3 that he left the house of the accused on foot up to village Paramahansa where he boarded a bus to go to his village and although according to him, Parjang Police Station is hardly 1. 5 miles from Paramahansa, he did not go to that police station to lodge the F. I. R. which, as stated earlier, was lodged at about 5. 30 P. M. by his brother (P. W. 1 ). P. W. 4 had admitted that excepting those three persons who were present at the time of unlocking his bi-cycle with the help of a Sandwashi, he did not disclose the incident to any other person of that village. It is further admitted by him that although he joined his duty at 7 A. M. in Thermal Power Station, he did not disclose the incident to his co-employees there or to anybody else till he was examined by the 1. 0. four days after the alleged occurrence. It is further admitted by him that although he joined his duty at 7 A. M. in Thermal Power Station, he did not disclose the incident to his co-employees there or to anybody else till he was examined by the 1. 0. four days after the alleged occurrence. Further, having accompanied P. W. 3 at his mere request to house of the accused it must be taken that they were very good friends and normally, therefore, he should have immediately reported the matter at the police station at the cost of his arriving office late or even not reporting to duty by applying for leave, but he did not do so nor disclosed the incident to anybody till his examination by the 1. 0. , as stated earlier. All these conducts on the part of P. Ws. 3 and 4 also strongly militate against their assertion of having seen the alleged occurrence. ( 12 ) P. W. 4 has admitted that after returning from the accuseds house he joined his duty at Thermal Power Station at 7 A. M. Of course there is no evidence to show as to at what distance the house or village of the accused is from the Thermal Power Station, but the evidence of D. W. 1 merely shows that the village of the accused namely, Kalada is about 7 miles from Talcher town. There is also no evidence as to the distance between Talcher town and Thermal Power Station. In the absence of any evidence indicating the distance from the house or village of accused and the Thermal Power Station, we will have to fall back upon the time taken to cover the said distance by P. Ws. 3 and 4 in bi-cycles to find out the possibility of presence of P. Ws. 3 and 4 at the time of the alleged occurrence. According to P. W. 3, he along with P. W. 4 left his quarter at about 5 P. M. and reached the house of the accused in the evening and according to P. W. 4, they left their quarters at about 4 P. M. and reached the house of the accused in the evening at about 7 P. M. So, according to the evidence of these witnesses, it takes about 2 to 3 hours to cover the distance between their quarters which adjoin each other and the house of the accused. If P. W. 4 would report to duty in his office at about 7 A. M. as admitted by him, he and for that matter P. W. 3 should have left the house of the accused at least at 5 P. M. i. e. much before the time of the alleged occurrence. ( 13 ) THE above discussion shows how the evidence of P. Ws. 3 and 4 are full of contradictions on material particulars and how their conduct at and subsequent to the alleged occurrence are contrary to ordinary human conduct and also how the possibility of their presence at the time of the alleged occurrence becomes remote. It is strenuously urged by the learned Addi. Govt Advocate that the seizure of the bicycle (M. O. I), umbrella (M. O. II) and the pair of chappals (M. O. III) all belonging to P. W. 3 from die house of the accused is liable to be taken as a clinching material to hold that P. Ws. 3 and 4 were present at the time of the alleged occurrence. As to this, the contention on behalf of the appellant is that the bicycle (M. O. I) belonged to the accused having been given as a dowry at the time of his marriage and since he had kept the same in his house, the seizure is of no consequence. As regards the umbrella and the pair of chappals, it is urged that one umbrella and a pair of chappals belonging to the accused had been seized but the same were substituted later on by the umbrella and the chappals belonging to P. W. 3 and in that view of the matter, it is contended that the seizure of an umbrella and a pair of chappals from the house of the accused cannot be taken to be a circumstance for holding that P. Ws. 3 and 4 were present at the time of the alleged occurrence and that out of fear of assaults on them, they left the accuseds house leaving those articles. In this connection, it is necessary to examine only the relevant evidence of P. Ws. 1, 4, 5 and ( 14 ) BEFORE adverting into the evidence of these witnesses on this score, it may, be pointed out that these articles were not put to any test identification parade and there is no special identification mark in any of them. In this connection, it is necessary to examine only the relevant evidence of P. Ws. 1, 4, 5 and ( 14 ) BEFORE adverting into the evidence of these witnesses on this score, it may, be pointed out that these articles were not put to any test identification parade and there is no special identification mark in any of them. It may also be noted that after seizure those articles had been left in zima of P. W. 1, the brother of P. W. 3 which were produced by him at the time of trial. It is nonetheless important to note that the so-called owner of the articles namely, P. W. 3 has not identified any of them as belonging to him. P. W. 1 has of course identified those articles as belonging to P. W. 3 and has denied that the bicycle (M. O. I) had been given to the accused as dowry at the time of his marriage and that umbrella and chappals had been changed. But he is unable to say wherefrom the bicycle (M. 0. I) was purchased by his brother and whether any Panchayati tax for the bicycle had been paid. It is admitted by him that one bicycle had been given as dowry to the accused at, the time of his marriage and that he himself did not find any bicycle in the house of the accused when the bicycle in question was seized. In view of such evidence, even if P. W. 4 has also asserted like P. W. 1 that the bi-cycle (M. 0. I) belonged to P. W. 3. It is not possible to precisely conclude that the bi-cycle in question really belonged to P. W. 3 particularly when the latter has not claimed ownership over the same. As regards the umbrella (M. 0. II) and the pair of chappals (M. 0. III), although P. W. 11 (1. 0.) has asserted having seized them from the house of the accused and his evidence has been partly corroborated by the evidence of P. W. 5, there is no material on record to show that any paper slip bearing the signature of the seizure witnesses had been affixed in them and that there was any special mark of identification. 0.) has asserted having seized them from the house of the accused and his evidence has been partly corroborated by the evidence of P. W. 5, there is no material on record to show that any paper slip bearing the signature of the seizure witnesses had been affixed in them and that there was any special mark of identification. In the absence of such evidence when such articles are commonly available in the market, it cannot be conclusively said that they really belonged to P. W. 3 and that he had left them in the house of the accused. This is all the more so when P. W. 3 himself has not claimed the same to be of his own. Regard being had to such unsatisfactory state of evidence; we have absolutely no hesitation to reject the contention of the learned Addi. Govt Advocate that the bi-cycle (M. 0. I.), the umbrella (M. 0. II) and the pair of chappals (M. 0. III) belonged to P. W. 3 and the seizure of those articles from the accusedts house corroborates the assertion of P. W. 3 that he was present at the time of the alleged occurrence. ( 15 ) THERE are some telling circumstances against the prosecution case itself which we now proceed to point out. The first is that according to P. W. 3, he did not attend to duty either on the date of the alleged occurrence which was a Wednesday (24. 8. 83) and also for two days thereafter on Thursday and Friday for which he had applied for leave. But he is unable to remember the ground taken by him in the leave application. He is also unable to remember, if in that leave application he had mentioned that he had seen the killing of his daughter. This evasive answer given by the witness suggests that in the leave application he had not mentioned about his having seen the alleged assault on the deceased by the accused. The said leave application would have furnished strong corroboration to the evidence of P. W. 3 that he was a witness to the alleged occurrence but the same has not been seized by the 1. 0. and no explanation has been offered for such omission. The said leave application would have furnished strong corroboration to the evidence of P. W. 3 that he was a witness to the alleged occurrence but the same has not been seized by the 1. 0. and no explanation has been offered for such omission. ( 16 ) THE other circumstance is that there was no blood much less human blood in the alleged weapon of offence namely, the Karari (M. 0. IV), as is evident from the report of the Chemical Examiner, Ext. 18. According to the 1. 0. (P. W. 11), on reaching the spot on the date of occurrence at 6. 30 P. M. , he found the dead body of the deceased lying on the Kitchen verandah of the house in question and the Karari (M. 0. IV) lying on the courtyard near the dead body d at that time the said Karari was stained with something looking like blood. The witness to the seizure of Katari (P. W. 6) has also stated that the said Katari was seized by the police from the inner courtyard of the house in question, but his evidence does not show whether the same was stained with blood or not. His evidence further shows that the house in question had a back door through which one could enter into the place of occurrence from the backside. The post-mortem report, Ext. 15 and the evidence of the medical officer (P. W. 12) indicate that the deceased had sustained to incised wounds and 3 lacerated wounds of various dimensions in addition to excision of last terminal phalanx of right index finger and so when the prosecution comes forward with a story that all the above injuries were caused by means of the Katari (M. 0. IV), it is normally expected that the Katari should have contained sufficient human blood, but since as stated above, no blood whatsoever was detected therein at the time of chemical examination, it is difficult to believe that the said Katari had really been used for inflicting the injuries on the person of the deceased. Since the place of occurrence was accessible to an outsider from the back door, the possibility of an outsider being involved in the commission of the crime cannot be altogether ruled out. Since the place of occurrence was accessible to an outsider from the back door, the possibility of an outsider being involved in the commission of the crime cannot be altogether ruled out. As already indicated earlier, at the time of the alleged occurrence the inmates of the house consisted of the accused, his father, two brothers and a sister, besides his ailing fathers sister. So, the prosecution was required to establish that none of those inmates was involved in the commission of the crime except the accused, but since the evidence of P. Ws. 3 and 4 which has been relied upon by the prosecution to prove this aspect of the case has been found to be not worthy of credence, it cannot be conclusively held that the accused was the author of the crime and none else. ( 17 ) HAVING discussed as above, as to how the evidence of P. Ws. 3 and 4 are not safe to be acted upon and further as to how the prosecution case is open to grave doubt, it is seen that the only circumstance appearing against the accused is his absconding from his house for some days immediately after the alleged occurrence. True it is, that in his examination under Section 313 Cr. P. C. the accused has not explained as to why he remained absconding but since absconding of a person after commission of an offence may be for several reasons, the same cannot be attributed to the guilt of that person beyond doubt. As such, the absconding of the accused after the alleged occurrence itself cannot be considered as a circumstance to fasten him with liability. ( 18 ) IT appears that the learned Sessions Judge took note of some of the contradictions mentioned earlier but not all and further he has not at all taken into consideration the circumstances which strongly militates not only against the evidence of P. Ws. 3 and 4 but also against the prosecution case as a whole. The non-consideration of some contradictions and the circumstances appearing against the prosecution case has made the impugned judgment quite vulnerable. 3 and 4 but also against the prosecution case as a whole. The non-consideration of some contradictions and the circumstances appearing against the prosecution case has made the impugned judgment quite vulnerable. ( 19 ) IN view of the above, it is unnecessary for us to deal with the second point, but we think it appropriate to point out some illegality committed by the learned Sessions Judge in recording his finding as to how the accused was guilty of the offence of culpable homicide not amounting to murder. According to the learned Sessions Judge, the accused dealt the Katari blows on the deceased and thereby instantaneously killed her because he strongly suspected that the deceased was in illicit connection with two persons. His finding as to illicit connection is based on the diary of the accused marked TX for identification. On perusal of the record, we do not find any diary which has been marked as TX for identification on the other hand, we find some papers marked A, A-it and A-2t obviously for the purpose of identification, but below those markings there is no signature of the learned Sessions Judge. So that as it may, when those documents are not public documents and were not admitted in evidence after proof, it is not understood how the same could be acted upon in support of the finding that the accused had strongly suspected that the deceased was in illicit connection with two persons. It was not expected of the learned Sessions Judge to commit such illegality who had already put in several years of service in that rank when he delivered the judgment. ( 20 ) IN the result, while dismissing the Government Appeal No. 41 of 1985, we allow the Criminal Appeal No. 77 of 1985, set aside the order of conviction and sentence and acquit the accused. The bail bond filed by him stands cancelled. State Appeal dismissed.