In order to convict an accused person based on circumstantial evidence, the circumstances must be firmly established, must be of a determinative tendency unerringly pointing towards the guilt of the accused, and must be incapable of explanation on any reasonable hypothesis other than the guilt of the accused.

JUDGEMENT

P. K. Mohanti, J. :- This is a prisoner's appeal presented through the Superintendent of Jail against his conviction under Section 302, I.P.C. and the sentence of imprisonment for life.

2. Prosecution case runs thus :

The appellant is a bachelor. He was living jointly with his mother Chami Bewa (P.W. 6) and his sister's daughter Bela Dei. His brothers Hadibandhu Munda and Routa Munda (P.W. 2) were living separate from him. Bela Dei was found to be pregnant although she was unmarried. The villagers suspected the appellant to be the author of her pregnancy and convened a panchayat meeting on 7-9-77 evening. While the meeting was being held, the appellant returned from his field with an axe in his hand and dealt a blow on the head of Bela Dei as a result of which she fell down unconscious with an injury on her head. P.W. 2 lodged information at Kaliahata Out Post on the basis of which a station diary entry was made - vide Ext. 2. The appellant was produced at the police station alone with the axe M. O. I. The A. S. I. of the Out Post proceeded to the spot and examined the witnesses. Then the O. I. C. of the Telkoi Police Station took charge of investigation and in due course submitted charge-sheet against the appellant.

3. At the trial, the appellant denied the charge and contended that he was falsely implicated by his brothers on account of previous enmity.

4. In order to establish the charge, prosecution examined 13 witnesses and on a consideration of the same the trial court held the appellant guilty and inflicted the sentence as indicated above.

Mr. Subas Das, the learned counsel appearing amicus curiae for the defence contended that the order of conviction is not supportable on the evidence on record.

5. There can be no doubt that the deceased Bela Dei died a homicidal death. The post-mortem report prepared by Dr. S.K. Kar (P.W. 1) shows that the deceased had a swelling on the right side of her scalp on the temporo-parietal region extending to the frontal and occipital regions. On dissection, the doctor found that the membranes of the right side were congested and lacerated. There was collection of blood in the brain tissues on the right side. Right parietal bone and the temporal bone were fractured. The fractured bone had entered the brain tissues. There was effusion of blood on the right side of brain. In the doctor's opinion, the injuries were ante-mortem in nature and might have been caused by a hard and blunt weapon like the blunt side of the axe M. O. I. Death was due to shock and haemorrhage resulting from the injuries which were sufficient in the ordinary course of nature to cause death. The doctor also opined that the external injury was possible by a single stroke.

6. There is no reason to doubt that the deceased was pregnant by the time of her death. The evidence of the doctor shows that the deceased was pregnant and had a bulky uterus. P.W. 6 Chami who is the mother of the appellant also testified that the deceased was pregnant before her death. There is, however, no evidence to show that the appellant was suspected to be the author of the illicit pregnancy of the deceased. There is also no evidence to should that the appellant or the deceased was called to the Panchayat meeting.

7. The important question for consideration is, whether the appellant can be held guilty of murder ? There is no direct evidence of any eye-witness to connect the appellant with the crime. P.W. 6, the mother of the appellant, who was cited as an eye-witness to the occurrence did not support the prosecution case at the trial and was cross-examined by the public Prosecutor. She went back upon her previous statements before the police and the Magistrate to the effect that she had seen the appellant assaulting on the head of the deceased with the blunt side of an axe.

8• The learned Sessions Judge relied on the following circumstances in convicting the appellant under Section 302, I.P.C. :

(1) Motive for the murder.

(2) The appellant was found