The discovery of a blood-stained weapon, made on the basis of a confessional statement, is not by itself enough to justify a conviction for murder.

JUDGMENT :

G.K. Misra, J. - The Appellant has been convicted u/s 302, Indian Penal Code and sentenced to imprisonment for life.

2. The prosecution case may be stated in brief. Makar Majhi (the deceased), the accused and Kalia (p.w. 3) are brothers. About 4 years back there was a dispute between the accused and the deceased over this lands. There was an amicable settlement through the intervention of the village punch. This lands were divided. Even thereafter they continued to quarrel. In Jesthe 1965 the accused administered some poison in the rice to be taken by the deceased. The deceased made a station diary entry (Ext. 6) at the Champua Police Station. Thereafter the accused and his wife (p.w. 18) left this village Kasipal and went to do labour in the mining area. On 25-10-1965, p.w. 9 found the accused sitting near a hillock in the afternoon. There was some instrument lying near the accused which looked like a Bala. P.ws. 7 and 8 saw the accused coming towards village Kasipal at about evening. p.w. 2 the sister of the accuses, and p.w. 4 the dallghter of the deceased were sleeping with the deceased in the same room. They found the accused inside that room focussing a torch in that very night but this evidence has not been accepted. In the following morning the deceased was found dead with injuries on his person, the accused was arrested on 27-10-1965. While in police custody be gave discovery of the Bala (M.O.I) from inside a bamboo bush. The Bala, on serological test, was found to contain human blood. On the aforesaid facts, the Appellant was charged u/s 302. Indian Penal Code. The defence is one of denial. The learned Sessions Judge held that the death was homicidal and that the Appellant killed the deceased. The finding that the death was homicidal is not assailed before us.

3. The only question for consideration is whether the accused killed the deceased. The learned Sessions Judge recorded the following findings:

(i) The accused and the deceased were on inimical terms. The accused bad therefore a motive to commit the murder.

(ii) In the afternoon of the date of occurrence, p.w. 9 found the accused sitting near a hillock which is at a distance of 5 miles from the village Kasipal.

(iii) P.ws. 7 and 8 saw the accused coming towards village Kasipal in the evening of that day.

(iv) The accused made 3 statement before p.ws. 11, 12, 15 and 16, while in police custody, that he would give discovery of the Bala (M.O.I) concealed in a bamboo bush in the outskist of village Balarampur. The accused led the witnesses and brought M.O.I. which, on serological test, was found to contain human blood. The evidence of the Doctor (p.w. 6) is that the injuries on the deceased could have been caused by the Bala (M.O.I).

(v) p.w. 12 deposed that the Bala (M.O.I.) belongs to the accused. p.w. 12 is truthful witness and there is no reason to dishelieve his statement.

(vi) The accused came from the mining area with a Bala, but returned back without the Bala.

The learned Counsel on either side do not dispute the correctness of the aforesaid findings.

4. These findings, in this ultimate analyasis, boil down to the existence of 3 important circumstances. They are:

(1) The accused was in the village on the date of occurrence.

(2) He bad a motive to murder his brother, and

(3) He had given discovery of the Bala (M.O.I) belonging to him, concealed in a bamboo bush, and the Bala was stained with human blood and could have been used as the instrument of murder.

5. There being no eye-witness, the question for consideration IS whether the aforesaid circumstances are sufficient to establish beyond reasonable doubt the guilt of the accused. Law is well settled that the circumstances must be such, as taken together they would leave no reasonable doubt in the mind of the Court that the accused was the allthor of the murder.

6. The first circumstance is Dot at all incriminating. The accused had come back to his own village and his presence in the village is not an incriminati