JUDGMENT : 1. Aggrieved by his conviction under Sections 302 and 201 of IPC and sentence of imprisonment for life with fine of Rs. 1000/- (Rupees One Thousand only), and in default in payment of fine to undergo six months further R.I. implanted by Additional Sessions Judge, Malkangiri vide impugned judgment and order dated 28.06.2006 recorded in Criminal Trial No. 2/2004 (State of Orissa v. Adma Sodi), that the present appellant-accused Adma Sodi has filed instant appeal under Section 374 of the Criminal Procedure Code. Learned Trial Judge while convicting and sentencing the appellant has conferred the benefit of set of as well on the appellant. 2. Without aggrandizing the facts and slating it lconically, it appears that one Anda Sodi of village Kenduguda, P.O.-Padmagiri under Malkangiri Police Station, Dist-Malkangiri had two sons, Adma Sodi, the present appellant, and Ganga Sodi, real sibling brother of the appellant. Adma Sodi was married to Laxmi Sodi, the deceased 3. On the ill-fated date 31.08.2003 at 10:00 AM Laxmi Sodi (deceased) along with Anda Sodi had gone to her cultivable agricultural filed and she returned therefrom and found the appellant to be present at her house. At 4:00 PM appellant asked as to why she (deceased) has not milled the paddy to extract the rice on which, it is alleged, that the deceased wife retorted asking the appellant as to why he being a male member not mill the paddy. A triadic altercation ensued between the spouses over the issue during course of which the appellant is alleged to have assaulted the deceased on the right Side neck by a wooden plank and thereafter throttled her to death. Carrying the dead body, for concealing the crime committed by him, that the appellant had plunged the cadaver of the deceased in a water tank. This incident was reported by Ganga Sodi to PW-7 village Chieftain-Baja Buti PW-7 enquired from the appellant on which, the appellant is alleged to have made a confessional statement before PW-7 regarding throttling of his wife and submerging her cadaver into the water tank/pond. A village meeting was convened The appellant confessed his guilt in it as well Thereafter written FIR was made by PW -7 at Police Station, Malkangiri on 02.09.2003 at 7:00 PM vide. Ext. 3. 4. A village meeting was convened The appellant confessed his guilt in it as well Thereafter written FIR was made by PW -7 at Police Station, Malkangiri on 02.09.2003 at 7:00 PM vide. Ext. 3. 4. The I.O. Hemanta Kumar Panda PW-6 functioning as OIC, Malkangiri registered the crime as Case No. 104 of 2003 under Sections 302, 201 of IPC and immediately commenced investigating, during course of which he examined the informant PW-7 Baja Buti, visited the spot, held inquest over the cadaver of the deceased and thereafter dispatched the dead body for autopsy purposes. 5. The FIR about the incident is Ext. 3, endorsement by the I.O on the said FIR is Ext. 3/2, formal FIR drawn is Ext. 3/3. Seizure list for wearing apparels of the deceased is Ext. 4 whereas accused Lungi was seized vide Ext. 5. Command Certificate is Ext. 6 and seizure list of weapon of assault is Ext. 7. Inquest report on the cadaver of the deceased is Ext. 8 whereas Ext. 9 is the office copy of the forwarding report regarding material Exts., which were dispatched to RSFL, Berhampur. Wrapping up the investigation, La. PW-6 has charge-sheeted the appellant. 6. After observing due committal formalities that the Committal Court of Magistrate, SDJM, Malkangir, vide G.R. Case No. 292 of 2003, had committed the case of the appellant to the Sessions Court for trial where it was registered as Criminal Trial No. 2 of 2004, State of Orissa v. Adma Sodi. 7. Charge under Section 302/201 I.P.C. were framed by the learned Trial Judge on 3.11.2004 and since the appellant abjured both the charges that his trial commenced. 8. Prosecution, for establishing guilt of the appellant to the core examined in all seven witnesses, out of whom P.W.1 and 2 namely; Kosa Korani and Mangarj Madhi, are two independent witnesses of confession. P.W.3 Sujit Kumar Biswas is the Constable who had carried the dead body of the deceased for autopsy purposes to the District Hospital Malkangiri along with dead body Challan Ext. 1. 9. Doctor Sudhansu Sekhar Mishra, on 3.09.2003, had conducted autopsy on the cadavour of the deceased in the District Hospital Malkangiri. P.W.5 is the scribe of the F.I.R, who on the dictation of the Baja Buti PW -7 had slated down Ext. 1. 9. Doctor Sudhansu Sekhar Mishra, on 3.09.2003, had conducted autopsy on the cadavour of the deceased in the District Hospital Malkangiri. P.W.5 is the scribe of the F.I.R, who on the dictation of the Baja Buti PW -7 had slated down Ext. 3, the F.I.R. P.W.6 is the I.O. whereas P.W.7 is the village chieftain informant to whom the appellant is alleged to have made a confession regarding murder of the deceased. 10. Learned Trial Judge on the basis of the oral and documentary evidence tendered before him concluded-that the guilt of the appellant has been established without any doubt and, therefore, convicted and sentenced him as aforesaid Hence, the present appeal challenging the aforesaid judgment and order. 11. We have heard Sri Kabiraj Pradhan, learned counsel for the appellant and have vetted through the trial Court as well as the record of the appeal minutely 12. Learned counsel for the appellant submits that there is no material on the record to sustain conviction of the appellant. Most of the witnesses have turned Hostile and they had no knowledge about the incident. Autopsy report does not concur confessional statement and, therefore, learned trial Judge committed an error of fact by holding the appellant guilty. 13. Learned Additional Government Advocate arguing to the contrary tried to support the impugned judgment. 14. We have bestowed our thoughtful consideration over the rival submissions. Our examination record reveals that the incident occurred at the spur of the moment when the deceased is alleged to have retorted to the question asked by the appellant as to why she was not milling the rice, but the fact remains is that nobody was present at that time. There is no eye-witness account of such a disclosure. The entire prosecution case hinges upon the confessional statement made by the appellant only. There is no eye-witness account about the entire incident. Confessional statement has been retracted by the appellant. More so what we find is that according to the confessional statement, the appellant had throttled the deceased to death but according to the autopsy doctor, there was no throttling mark on the neck of the deceased, who had died because of infliction of single blow on her head. The doctor unerringly has said that the cause of death was the head injury. The doctor unerringly has said that the cause of death was the head injury. It will be appropriate at this stage to reproduce the statement of the doctor regarding the facts found by him which are as follows : 2. A decomposed dead body of a female of about 27 years of age, with foul swelling coming out of the body. Magots present over body Greenish discolouration of skin with marbelling present. Eyes closed, tongue protruded with clenched teeth, extrimities stiff, filling of skin, forthy redish discharge coming out of mouth and nose. Putrifactive disters present over skin surface Skin over hand and feet with nails peeled up. Air over the scalp loose and peeled out easily. Abdomen gloated. Ractam and external zenitalian swollen Service coming out through vagina. One bruise of size 3"x3" present over on scalp on right side which is ante mortem in nature. 3. On dessection of skull disorganized extradural 100 ml. of clotted blood blackish in colour present in posterior canal fossa on right side, ante mortem in nature. Both lungs putrified, larynx and trachea are intact and contain redish frotosh secration. Heart empty, abdomenal organs putrified and foul smelling gas coming out on opening the abdomen. Uteras intact and non gravity. No legature mark present. Cause of death was due to the injuries to brain by blunt force. Time since death was 3 to 5 days. Ext. 2 is my report and Ext. 2/1 my signature therein. Cross-Examination - 4. The injuries might be possible by heavy fall. 15. In view of such deposition by the doctor, who has not ruled out the possibility of the deceased sustaining injury even by fall, it cannot be safely concluded at all, especially when there is no convincing evidence supporting the case of the prosecution, that in fact, there was a tussle between the appellant and his wife on the milling of the paddy and the appellant had assaulted her Admittedly, the confession alleged to have been made by the appellant is false Therefore, we are of the view that basing conviction of the appellant on the strength of the confessional statement, part of which is admittedly false, is very unsafe, especially when the other possibility of the deceased falling in the pond is quite imminent. 16. 16. It also emerges from the record and is apparent from the formal F.I.R that although the incident is alleged to have been occurred on 31.08.2003 at 4 P.M but the F.I.R. was lodged on 02.09.2003, after a gap of two days at 7 P.M at the police station when the distance of the police station and the incident village is only 30 Kms. This unerringly indicates that F.I.R.-Ext. 3 was lodged after due consultation and deliberation by the village Chieftain. Ganga Sodi who is alleged to have informed the village chieftain, P.W.7 about the incident has not been produced by the prosecution to lend credence to the story of confessional statement as well as about the incident. Without being verbose and dragging the matter further, we are of the opinion that the prosecution has miserably failed to establish the charge against the appellant on both the counts under Section 302 as well as 201 I.P.C, as sleeping of the deceased inside the pond and dying because of the injury sustaining and drowning cannot be ruled out completely. 17. At this juncture, we would like to observe that voluntariness of a confession is one thing but the truthfulness is quite another. If a confession is voluntarily but it does not contain the correct facts, it cannot be relied upon at all to pronounce the verdict of guilt. Learned Trial Judge fell in error as he failed to distinguish between two things, i.e., voluntariness and the truthfulness. Admittedly according to the informant PW-7, the confession made by the appellant that he had throttled his wife to death, but that part has not been corroborated by the medical evidence. Further, nobody else either from the village meeting or from other sources had come forward to lend credence to the statement of PW -7 On a solitary statement by PW-7, it is difficult to conclude that the guilt of the appellant has been established. Learned trial judge also committed an error by concluding that the recovery of the attires fully proves the crime against the appellant. No disclosure statement made by the accused was brought on record at all by the prosecution and, therefore, there is no material under Section 27 of the Indian Evidence Act. In absence thereof, the recovery of the attires of the deceased are of no consequence. No disclosure statement made by the accused was brought on record at all by the prosecution and, therefore, there is no material under Section 27 of the Indian Evidence Act. In absence thereof, the recovery of the attires of the deceased are of no consequence. In view of the above, we find the entire analysis by the learned Trial Judge to be faulty. 18. In view of aforesaid, we allow the appeal, set aside the impugned judgment and order, acquitted the appellant of both the charges and direct that he be set at liberty forthwith unless he is wanted in any other crime as the appellant is incarcerated in jail. 19. Let the Trial Court and the Jail Superintendent, where the appellant is confined, be informed accordingly. Final Result : Allowed