JUDGMENT : Bibhu Prasad Routray, J. 1. This appeal has been preferred by the sole appellant against his conviction and sentence of imprisonment of life under Section 302 of IPC passed by the learned Additional Sessions Judge, Nuapada in Sessions Case No. 74/9 of 2003 dated 22.01.2004. 2. The appellant was charged for murder simplicitor of one Bimala Bai Sahoo (hereinafter called as 'the deceased'). Prosecution's case in nutshell is that, the appellant and P.W. 2 are two brothers and the deceased is the wife of P.W. 1. P.Ws. 2 and 1 were in good relationship. However the appellant was not pulling well with the P.W. 2, his elder brother. Appellant suspected that his elder brother (P.W. 2) had illicit relationship with the deceased and doubted that she was antagonizing his brother (P.W. 2) against him. On the fateful day, during noon time, when the deceased had gone near the field of the appellant to attend the call of nature, the appellant finding her alone, severed her head by means of an axe (M.O.I). The body and the head were lying severed in the field of P.W. 2. The F.I.R. was lodged by P.W. 1 (husband of the deceased) stating that when he returned to his house without finding the deceased in the house, he went for searching her at around 2.00 p.m. and ultimately found the body and head of the deceased laying in the paddy field of P.W. 2. Upon registration of the FIR, investigation was taken up by P.W. 10 (the Investigating Officer), the then O.I.C. of Nuapada P.S. He held the inquest over the dead body and head, prepared the spot map, and arrested the accused (appellant) on the next day. He also seized the weapon of offence i.e. axe (M.O.I) as per leading to discovery made by the appellant. 3. Prosecution examined 12 witnesses in total and amongst them most important are, P.W. 1, 3, 10 & 8. P.W. 1 is the husband of the deceased, P.W. 3 is the wife of the appellant, P.W. 10 is the I.O., and P.W. 8 is the Medical Officer, who conducted the postmortem examination. These four witnesses are the main witnesses for the prosecution case. Besides, 17 documents have been marked on behalf of the prosecution. On the other hand defense did not lead any evidence either oral or documentary. These four witnesses are the main witnesses for the prosecution case. Besides, 17 documents have been marked on behalf of the prosecution. On the other hand defense did not lead any evidence either oral or documentary. The defense plea was complete denial and false implication. The learned Addl. Sessions Judge, after analyzing the evidence brought on record found the appellant guilty of murder of the deceased. It is seen that, the conviction is based completely on circumstantial evidence of which extra judicial confession has played a vital link. However, before going deep into the impugned judgment, the nature of death of the deceased needs to be seen at the outset since this is a case of murder. 4. The Medical Officer who conducted post-mortem examination has been examined as P.W. 8 and the P.M. report is Ext. 9. Said P.W. 8 duly examined the headless body as well as the severed head and opined that the same was of the deceased. The evidence of P.W. 8 reveals four external injuries around the neck severing the head from the body and two more injuries on the body below both side of the chest. All such injuries had impacted the death of the deceased due to hemorrhage and shock resulted from cutting of the great vessels of both side of the neck, spinal cord, trachea and vertebra by multiple incised injuries. It is also opined by P.W. 8 that all the injuries were homicidal in nature. Therefore, from the evidence of P.W. 8, there cannot be any second opinion than the homicidal nature of death of the deceased. 5. There is no eye witness to the occurrence and the case is based completely on circumstantial evidence. As a matter of fact in the evidence laws, there is no difference between the 'direct evidence' and 'circumstantial evidence'. The difference is only regarding standard of proof. Here, it is needed to discuss certain settled principles of the cases of circumstantial evidence. 6. In the case of Hanumant Govind Nargundkar & Anr. Vs. As a matter of fact in the evidence laws, there is no difference between the 'direct evidence' and 'circumstantial evidence'. The difference is only regarding standard of proof. Here, it is needed to discuss certain settled principles of the cases of circumstantial evidence. 6. In the case of Hanumant Govind Nargundkar & Anr. Vs. State of Madhya Pradesh, reported in AIR 1952 SC 343 , the Apex Court observed as under: ".........It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused............." Later in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, reported in AIR 1984 SC 1622 , the Apex Court has observed: "153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [ (1973) 2 SCC 793 ] where the observations were made: [SCC para 19, p. 807: SCC (Cri.) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. xxx xxx xxx 179. We can fully understand that though the case superficially viewed bears an ugly look so as to prima facie shock the conscience of any court yet suspicion, however great it may be, cannot take the place of legal proof. A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law. 180. It must be recalled that the well established rule of criminal justice is that "fouler the crime higher the proof". In the instant case, the life and liberty of a subject was at stake. As the accused was given a capital sentence, a very careful, cautious and meticulous approach was necessary to be made." On examination of record and the impugned judgment, it is seen that the circumstances founding the conviction are, extra judicial confession, leading to discovery of the weapon of offence and wearing apparels having blood stains, and the motive of the appellant. 7. First, regarding extra judicial confession, the same is seen founded upon the evidence of P.Ws. 3 and 6. 7. First, regarding extra judicial confession, the same is seen founded upon the evidence of P.Ws. 3 and 6. P.W. 6 has stated that "before myself and villagers, the accused had admitted to have committed murder of the deceased". This statement of P.W. 6 made in the deposition, is appearing unreliable for lack of details. He has not stated when and where the appellant confessed the same before him, who else were present there specifically and what was the occasion for the appellant to say so before P.W. 6. Therefore, no reliance can be placed on this statement of P.W. 6. 8. P.W. 3 is the wife of the appellant and her status as wife of the appellant is not disputed though she has stated in her cross-examination that she is the 2nd wife of the accused-appellant. No material is also found on record not to hold P.W. 3 as the wife of the appellant. Therefore, all such statements so stated by P.W. 3 in course of her deposition about the confession of murder by the appellant, were apparently made by the appellant before her being she is his wife. Here the status of P.W. 3 as the wife of appellant is admitted by prosecution. Now the question does arise, whether such a communication made between the husband or wife during marriage is admissible in evidence, and if so, what are those requirements to be satisfied before that?. In this regard, Section 122 of the Indian Evidence Act, 1872 speaks as follows: "122. 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." 9. The Supreme Court in the case of M.C. Verghese Vs. T.J. Poonan & Anr., reported in (1969) 1 SCC 37 , has made observations that evidence on communications between the husband and wife during marriage is inadmissible in criminal proceedings. In the said case, the father of the wife lodged prosecution against the husband alleging offence of defamation. The Supreme Court in the case of M.C. Verghese Vs. T.J. Poonan & Anr., reported in (1969) 1 SCC 37 , has made observations that evidence on communications between the husband and wife during marriage is inadmissible in criminal proceedings. In the said case, the father of the wife lodged prosecution against the husband alleging offence of defamation. The contention of the husband was that the communications in the letter sent by him to his wife is inadmissible in evidence and expressly prohibited by law from disclosure. The said contention was accepted by the District Magistrate and the husband was discharged. The said discharge being set aside by the Sessions Court, matter went to Kerala High Court, wherein the Kerala High Court set aside the order of the Sessions Judge and restored the order of the District Magistrate. The matter was again challenged before the Hon'ble Supreme Court, wherein the Apex Court by referring to various decisions of Queen's Bench as well as Madras High Court, have observed that the communications between the husband and wife during marriage is inadmissible in evidence. The relevant paragraphs of the said judgment in the case of M.C. Verghese (supra) are quoted hereunder: "6. In England the rule appears to be well settle-that except in certain well defined matters, the husband and wife are regarded as one and in an action for libel disclosure by the husband of the libel to his wife is not publication. In Wennhak case [(1888) 20 QBD 635] Manistry, J., observed: ...the maxim and principle acted on for centuries is still in existence viz. that as regards this case, husband and wife are in point of that as law one person." The learned Judge examined the foundation of the rule and stated that it was, after all, a question of public policy or, social policy. 7. But the rule that husband and wife are one in the eye of law has not been adopted in its full force under our system of law and certainly not in our criminal jurisprudence. 8. In Queen Express v. Butchi [ILR 17 Mad 401] it was held that there is no presumption of law that the wife and husband constitute one person in India for the purpose of the criminal law. If the wife, removing the husband's property from his house, does so with dishonest intention, she is guilty of theft. 9. 8. In Queen Express v. Butchi [ILR 17 Mad 401] it was held that there is no presumption of law that the wife and husband constitute one person in India for the purpose of the criminal law. If the wife, removing the husband's property from his house, does so with dishonest intention, she is guilty of theft. 9. In Abdul Khadar v. Taib Begum [ AIR 1957 Mad 339 ] the Madras High Court again held that there is no presumption of law in India that a wife and husband constitute one person for the purpose of criminal law, and therefore the English common law doctrine of absolute privilege cannot prevail in India. 10. It must be remembered that the Penal Code, 1860 exhaustively codifies the law relating to offences with which it deals and the rules of the common law cannot be resorted to for inventing exemptions which are not expressly enacted. ..... XXXX ...... XXXX........ 14. The section consists of two branches -- (1) that a married person shall not be compelled to disclose any communication made to him during marriage by his spouse; and (2) that the married person shall not except in two special classes of proceedings be permitted to disclose by giving evidence in Court the communication, unless the person who made it, or his representative in interest, consents thereto. 15. A prima facie case was set up in the complaint by Verghese. That complaint has not been tried and we do not see how, without recording any evidence, the learned District Magistrate could pass any order discharging Poonan. Section 122 of the Evidence Act only prevents disclosure in evidence in Court of the communication made by the husband to the wife. If Rathi appears in the witness box to giving evidence about the communications made to her husband, prima facie the communications may not be permitted to be deposed to or disclosed unless Poonan consents. That does not, however, mean that no other evidence which is not barred under Section 122 of the Evidence Act or other provisions of the Act can be given. 16. In a recent judgment of the House of Lords Rumping v. Director of Public Prosecutions [(1962) 3 All ER 256] Rumping the inmate of a Dutch ship was tried for murder committed on board the ship. 16. In a recent judgment of the House of Lords Rumping v. Director of Public Prosecutions [(1962) 3 All ER 256] Rumping the inmate of a Dutch ship was tried for murder committed on board the ship. Part of the evidence for the prosecution admitted at the trial consisted of a letter that Rumping had written to his wife in Holland which amounted to a confession. Rumping had written the letter on the day of the killing, and had handed the letter in a closed envelope to a member of the crew requesting him to post it as soon as the ship arrived at the port outside England. After the appellant was arrested, the member of the crew handed the envelope to the captain of the ship who handed it over to the police. The member of the crew, the captain and the translator of the letter gave evidence at the trial, but the wife was not called as witness. It was held that the letter was admissible in evidence. Lord Reid, Lord Morris of Borth-Y-Gest, Lord Hodson and Lord Pearce were of the view that at common law there had never been a separate principle or rule that communications between a husband and wife during marriage were inadmissible in evidence on the ground of public policy. Accordingly except where the spouse to whom the communication is made is a witness and claims privilege from disclosure under the Criminal Evidence Act, 1898 (of which the terms are similar to Section 122 of the Indian Evidence Act though not identical), evidence as to communications between husband and wife during marriage is admissible in criminal proceedings. ....... XXXX ...... XXXX...... 21. When the letters were written by Poonan to Rathi, they were husband and wife. The bar to the admissibility in evidence of communications made during marriage attaches at the time when the communication is made, and its admissibility will be adjudged in the light of the status at that date and not the status at the date when evidence is sought to be given in Court." 10. The Bombay High Court, in the case of Bhalchandra Namdeo Shinde Vs. the State of Maharashtra, reported in 2003 (2) MahLJ 580, referring to the decision of the Hon'ble Apex Court in the case of Ram Bharosey Vs. The Bombay High Court, in the case of Bhalchandra Namdeo Shinde Vs. the State of Maharashtra, reported in 2003 (2) MahLJ 580, referring to the decision of the Hon'ble Apex Court in the case of Ram Bharosey Vs. State of Uttar Pradesh ( AIR 1954 SC 704 ), has observed as follows: ".........In the said case, the actual communication between the accused and his wife was held inadmissible under section 122 of the Indian Evidence Act but the acts of the husband witnessed by wife are held admissible, as it has reference to the acts and conduct, of the accused and not to any communication made by the husband to his wife. Bearing in mind the ratio in the case of Ram Bharosey (cited supra), we have to exclude the inadmissible part with regard to actual communication between the appellant and his wife Jaishree PW 1. However, what Jaishree PW 1 saw at the relevant time is certainly admissible in evidence. Jaishree PW 1 saw the appellant searching and collecting Kookari (Article 12) and leaving the house with Kookari. This part of evidence is certainly admissible in evidence. However, this much evidence by itself is not sufficient to prove the complicity of appellant in crime." 11. Now, returning back to the facts of the present case, the status of P.W. 3 as the wife of the appellant is not disputed and no consent has been taken from the appellant in this regard while recording her deposition. As seen from the language of Section 122, the same provides bar as to the admissibility in evidence of communication made during subsistence of marriage, which cannot be disclosed even, without the consent of the spouse who made it, or his representative in interest, except in the proceedings between such married persons or where one spouse is prosecuted for any crime committed against the other. This privilege under Section 122, read with Section 120 of the Indian Evidence Act, though does not disqualify one spouse as a competent witness against the other, but bars disclosure of all communications made between them during subsistence of marriage. It is to be remembered that the privilege is not to the spouse who is witness, but to that other spouse who made the communication. Such communication not necessarily be a confidential only, but applies to all. It is to be remembered that the privilege is not to the spouse who is witness, but to that other spouse who made the communication. Such communication not necessarily be a confidential only, but applies to all. Therefore, the courts are prohibited to permit the witness from making such disclosure unless, first, the witness is willing to disclose, and secondly, the other spouse against whom it is to be made has given his express consent. Here the oral evidence of P.W. 3 Santabai goes to the extent that, when she saw blood stains on the weapon (M.O.I) and the person of the appellant, being asked by her, the appellant replied that he has committed murder of the deceased by M.O.I. Therefore, in view of the law enumerated in Section 122 of the Indian Evidence Act as well as the principles enunciated in the aforesaid decisions, it bars admissibility of the evidence of P.W. 3 to the effect of her deposition regarding confession of the appellant of committing murder of the deceased by M.O.I., but her statement regarding other aspects is no way affected. So, the link of extrajudicial confession in the chain of circumstances is not established and the learned trial court has lost it's sight from Section 122 before placing reliance on the above aspects. 12. Out of the remaining circumstances, the important one is 'leading to discovery of weapon of offence and blood stained wearing apparels of the appellant'. In this regard, P.Ws. 4 and 5 have supported the prosecution case. The weapon of offence i.e., the axe has been identified as M.O.I. and blood stained shirt and Lungi of the appellant as M.Os. II & III. The evidence of P.Ws. 4 and 5 along with the evidence of P.W. 10 is seen trustworthy on this point. The cowshed wherefrom said material objects were found, was in possession of the appellant as per the evidence of P.W. 11, the Amin of Tehsil Office and other witnesses, viz. P.Ws. 2, 3, 4, 5 & 10. M.O.I. is found stained with human blood of group 'O' whereas M.Os. II (shirt) & III (lungi) are though found with human blood but without any opinion on grouping during the chemical examination. The chemical examination report has been marked under Ext. 16. So, except M.O.I., other two objects cannot be reasonably connected to the guilt of the appellant. 13. M.O.I. is found stained with human blood of group 'O' whereas M.Os. II (shirt) & III (lungi) are though found with human blood but without any opinion on grouping during the chemical examination. The chemical examination report has been marked under Ext. 16. So, except M.O.I., other two objects cannot be reasonably connected to the guilt of the appellant. 13. So far as motive is concerned, it is the consistent evidence of the prosecution witnesses that, there was previous enmity between the appellant and P.W. 2. The witnesses have stated that there was long standing dispute between both the brothers, but the materials on record is silent about the connection between P.W. 2 and the deceased which forms the basis of hostility between the appellant and the deceased. In this regard, there is only one bare statement of P.W. 3 made during her cross-examination by the prosecution that she has made a statement before the I.O. (P.W. 10) that the appellant was opposing the relationship of the deceased with P.W. 2. But this is of no use for the prosecution against the appellant. Because what is stated before the I.O. cannot by itself be an evidence in court. It is important to point out here that even if hostile relationship is established between the appellant and P.W. 2, but the same has nothing to do with the motive of the appellant to kill the deceased. No relationship between P.W. 2 and the deceased is found on record to establish motive on the part of the appellant to kill the deceased. Therefore, in absence of any material to this aspect, the learned trial Judge has erred in taking motive as a circumstance against the appellant. 14. Thus, from above discussions, it becomes clear that, except the information leading to discovery of the weapon of offence relevant u/s. 27 of the Indian Evidence Act, all other circumstances discussed by the trial court are not free from reasonable doubts. In a case where evidence is of circumstantial in nature, each circumstance must be fully established before drawing any conclusion there from. Here it would not be out of place to have relook to the evidence of P.W. 3. In a case where evidence is of circumstantial in nature, each circumstance must be fully established before drawing any conclusion there from. Here it would not be out of place to have relook to the evidence of P.W. 3. As discussed earlier, by excluding the confessional part from her evidence, the remaining part throws some light on post occurrence conduct of the appellant that he was seen with blood stained axe (M.O.I) and blood stains appearing on his wearing apparels. Bereft of some discrepancies in this part of evidence of P.W. 3 that she had not stated about M.O.I. to the I.O. during investigation, even if the same is added as one more circumstance to that earlier circumstance useful u/s. 27 of the Indian Evidence Act, still the chain of circumstance is not found complete to unerringly point towards the guilt of the accused. It is important to see that not only the chain is complete but also that no reasonable ground is left in support of innocence of the accused. Of course it is established that blood stain marks of human origin have been found on the wearing shirt and Lungi of the deceased (M.Os. II & III) and the axe (M.O.I) which were discovered at his instance, but the same are definitely not sufficient to clearly establish the guilt of murder of the deceased by the appellant even though, as per the opinion of P.W. 8, M.O.I. could be the possible weapon of offence in view of the nature of injuries found on the deceased. But, it is repeated that, in our considered opinion, these circumstances cannot be said completing the chain of circumstances unerringly pointing the guilt of the appellant leaving all possible hypothesis except the guilt of the appellant. 15. Thus, prosecution case is not seen free from all reasonable doubts and in view of the discussions made above, we are constrained to hold that the prosecution has not satisfactorily established its case beyond all reasonable doubts to clearly hold that the appellant had committed the murder. Therefore, for the reasons discussed above, we hold the appellant not guilty of the charge of murder and accordingly he is acquitted thereof. The appellant be set at liberty forthwith, if his detention is not required in any other case. S.K. Mishra, J. I agree.