B. K. BEHERA, J.

( 1 ) THIS appeal has been directed against the judgment and order passed by Mr. P. Jena, Sessions Judge, finding the appellant to be guilty of the charge-of murder, convicting him under section 302 of the Indian Penal Code and sentencing him thereunder to undergo imprisonment for life. The appellant stood charged for committing the murder of his wife Gurubari (hereinafter to be referred to as Tthe deceased ). The prosecution had examined six witnesses to establish its case.

( 2 ) THE tale presented by the prosecution at the trial was one of a husband killing his wife suspecting her fidelity and for her secret love affairs with his younger brother of which there was no material other than the extra-judicial confession in the evidence of P. Ws. 3 and 4 which not only bristled with material discrepancies with regard to the exact words said to have been uttered by the appellant, but was also fraught with suspicious features to be discussed hereinafter. The prosecution had not been able to establish as to why the appellant would kill his wife, who, according to Vatsayana is half the man, the best friend, the root of the family and its perpetuity, the source of well-being, while coming together on their way back after nightfall on September 20.

( 3 ) THE contention raised on behalf of the appellant by the learned counsel appearing for him that the impugned. order of conviction is unfounded and misconceived shall prevail although the learned Additional Government Advocate has made halting and hesitating submissions in support of the order of conviction.

( 4 ) WHEN evidence is led by the prosecution relating to theories of the accused and the deceased persons being last seen together, extra-judicial confessions and statements leading to discoveries within the purview of section 27 of the Evidence Act and such facts are disputed by the defence and extra-judicial confessions are retracted, the trial court should be careful and circumspect in judging the truth of such evidence.

( 5 ) THE evidence of P. W. 3 that the appellant and the deceased came to his residence sometime in the evening prior to the murderous assault and had taken tobacco from him and had accepted Sojana and Kaunia leaves from his wife had not been supported by any other co-villager of P. W. 3 who would normally have seen the appellant and the deceased in the village and not even by his wife whom the prosecution had not chosen to examine. The, evidence of this witness that on hearing the cry raised by the deceased that she was being killed, her an to the spot not far away from his house and which, according to the Investigating Officer, was about half a furlong away although he had not made any experiment as to whether the cry of a person on the spot would be audible to the house of P. W. 3 and that on reaching the spot, he saw the appellant dealing successive blows by the lathi (M. O. 1) on the deceased lying on the ground and on being asked by him, the appellant gave out that the deceased had been talking to his (appellants) younger brother, but not to him which had enraged him and therefore, he killed her and that this witness had been able to identify not only the lathi (M 0. I), but also the napkin (M. O. II) and the banian (M. O. III) of the appellant nightfall and in darkness because there was no evidence that there ,was any light, would not stand to common sense, much less to reason. The Ward Member Rupai who, he had claimed, had been informed of the occurrence, the next morning had not been examined and he had not testified as to what all be had told P. W. 4 and others. If was highly unlikely that in the circumstances in which P. W. 3 had been placed during that part of the night, be would have been able to identify M. Os. 1 to 3.

( 6 ) AS his own evidence would show, P. W. 3 had not informed anyone in the village during the night of occurrence as to what he had claimed to have seen and he did not even inform hip wife anything owing to f