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Smt Santosh Kumari and ors. Vs. State - Court Judgment

LegalCrystal Citation
CourtHimachal Pradesh High Court
Decided On
Reported in1973CriLJ1651
AppellantSmt Santosh Kumari and ors.
Cases ReferredSarwan Sinsh Rattan Singh v. State of Punjab.
- orderd.b. lal, j.1. i have read the judgment of my brother and i am in full agreement with him that the prosecution has not succeeded, beyond the realm of a reasonable doubt, to bring home the offence under section 302,1. p. code, against the two accused. the sheet-anchor of the prosecution was the statement of munshi ram (pw), particularly the extra-judicial confession made by the accused ram swarup to him on 3rd february. 1970 at new delhi. for this there was a clear discrepancy in the dates and in all probability the witness munshi ram could not have been present at delhi on 3rd february. 1970. .according to the statement of the investigating officer mani ram. foil reasons stated by my learned brother., munshi ram (pw) was not even a dependable witness. in the circumstances, the.....

D.B. Lal, J.

1. I have read the judgment of my brother and I am in full agreement with him that the prosecution has not succeeded, beyond the realm of a reasonable doubt, to bring home the offence under Section 302,1. P. Code, against the two accused. The sheet-anchor of the prosecution was the statement of Munshi Ram (PW), particularly the extra-judicial confession made by the accused Ram Swarup to him on 3rd February. 1970 at New Delhi. For this there was a clear discrepancy in the dates and in all probability the witness Munshi Ram could not have been present at Delhi on 3rd February. 1970. .according to the statement of the investigating officer Mani Ram. Foil reasons stated by my learned brother., Munshi Ram (PW) was not even a dependable witness. In the circumstances, the evidence regarding extra-judicial confession before Munshi Ram could not be relied upon.

2. An unambiguous confession, if admissible in evidence and free from suspicion suggesting its falsity, is no doubt a valuable piece of eyidence which possesses a high probative force because it emanates directly from the person committing the offence. But in the process of proof of an alleged confession, the Court has to be satisfied that it is voluntary, it does not appear to be the result of inducement, threat or promise as contemplated by Section 24. Indian Evidence Act and the surrounding circumstances did not indicate that it is inspired by some improper or collateral consideration suggesting that it may not be true. In the case before us, the extra-judicial confession has not withstood this test. It may not be necessary to propound the abstract proposition that invariably extra-judicial confession requires corroboration from an independent source. It suffices to hold that witness before whom the extra-judicial confession was supposed to have been made, could not be stated to be speaking the truth and that is enough to disregard the evidence.

3. It was the bounden duty of the learned Sessions Judge to have clarified the discrepancy as to dates, which he did not do. Sessions Judges while presiding over criminal trials, are expected to be vigilant so that proper evidence is produced, nothing substantial is suppressed and every opportunity is given to the prosecution as well as to the defence, to explain away any discrepancy which prima facie appears to be innocent and which requires explanation. In this case, the learned Sessions Judge did not care to take the elementary precaution of getting explained the discrepancy as to the dates which had a direct bearing upon the extra-judicial confession. He did not even notice such discrepancy as to dates and the learned Advocate-General had to move application under Section 540. Criminal Procedure Code, which for reasons explained by my learned brother we preferred to reject

4. If such discrepancies are left out on the record and are subsequently pointed out when it is too late to rectify them, because the court is always reluctant to fill up the lacunae in evidence as no prompt steps are taken by the parties, very often miscarriage of justice is the consequence. Such is exactly what has happened in the present case.

5. The learned Sessions Judge has also omitted to discuss the defence evidence which Js again a lacuna in the judgment. If the defence evidence is not considered at all. the accused are highly prejudiced nor can the trial Court be expected to arrive at a fair decision. This has happened in the present case and we cannot but give the benefit to the accused, more so when no dependable evidence existed against them otherwise.

6. With these observations, I too am of the opinion that the offence imputed against the two accused has not been successfully proved against them. They should be acquitted of the charges, with a refund of fine to them if already paid.

Chet Ram Thakur, J.

7. Shrimati Santosh Kumari. wife of Mehar Chand. aged 26 years, and Ram Swarup, son of Sarnu Mai. have been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life with a fine of Rs. 500/- each by the Additional Sessions Judge; Dharamsala, vide Ms judgment and order, dated 7th July, 1972. They have appealed against their conviction and sentence

8. On the 31st of January. 1970 at 1.30 P.M. Shri Ram Swarup. the present appellant, lodged a report. Ex. PW 22/A, at the Police Post Dehra and the same was to the following effect:-

I am resident of village Nari. which Is situated adjacent to village Samnoli. Smt. Yashodan w/o. Dwarka Dass who had put fire underneath her Charpoy and had slept for the night has been put to death by burning, during intervening night of 30/31-1-1970. Her bedding has also been burnt. I was awakened by the hue and cry of Santosh Kumari w/o. Mehar Chand r/o Samnoli. She also had come to my house which adjoins the house of Santosh Kumari. She said 'MERI NANI YASODHAN KO AAG LAG GAIE HAI JO JAL GAIE HAI.' When I reached along with Master Prabhu Datt son of Kharka I found the shutters of her house closed. Fire had spread inside. I ait once with the idea that the house might not catch fire opened the shutters with great force and extinguished the fire with water. Yashodan had died since then by burning. I deputed Master Prabhu Ram and Santosh Kumari at the spot and informed Chaukl-dar and Sarpanch about the occurrence and myself have come here to lodge the report. The report may be entered.

9. Consequent to the report, the A, S. I. accompanied by police constables proceeded to the spot and investigation was started and it was revealed that one Dwarka Dass of village Samnoli in Tehsil Dehiara had two wives. One of them was deceased Yashodha, who did not bear any child, whereas from the other wife he had one daughter, named Bhumeshwari Devi The accused-appellant Santosh Kumari is the daughter of Bhumeshwari Devi. After the death of Dwarka Dass in 1964, Santosh Kumari, being one of the heirs to the estate of her maternal-grand father, started living at village Samnoli. There she de-i veloped intimacy with Ram Swarup. ac-cused-aippellant, who belongs to village Nari, which is quite near to Samnoli. He started frequent visits to the residence of Santosh Kumari. Smt. Yashodha resented these visits. On this, it is stated. Ram Swarup gave her beatings also. The relations, therefore, between Santosh Kumari and Yashodha. became strained. One of the causes leading to the estrangement between Santosh Kumari and the deceased was that the former wanted to sell her share of the property inherited from her deceased husband, but Santosh Kumari did not want that she should alienate the property as she was an heir to the property. It is also alleged that Ram Swarup had held out threats to the deceased earlier to the date of occurrence that she would be done away with in case she did not desist from alienating the property. The deceased had complained of this fact to several other ladies of the village. Besides this, proceedings under Section 107 of the Code of Criminal Procedure had also commenced between the parties.

10. On the intervening night of 30th and 31st of January, 1970, it is said, the two accused were seen coming out of the house of the deceased by one Munshi Ram (PW 1). He had also seen some smoke coming out from the house and the two accused on being questioned told him that accidental fire had broken out in the house and they had put the same under control. It is also further averred by the prosecution that the accused Ram Swarup made disclosure statement about having concealed one Shishi (phial) containing ether near a Gurna bush under a stone on the way to Samnoli and which he could get recovered. Consequent to the disclosure statement on the 6th of March, 1970 the accused got recovered the Shishi. Accord-Ing to the prosecution the accused administered ether to the deceased before she was burnt to death.

11. Further, it is alleged that Munshi Ram (PW 1) who left for Delhi on the 31st of January, 1970, was approached by Ram Swarup accused at the Delhi Railway Station on the 3rd day of his arrival at Delhi and there he fell at his feet and told him that he had knowledge about the night's occurrence and entreated that he should not divulge this fact to any body else. He also confessed that he along with Santosh Kumari had burnt Yashodha alive. That the police had lodged a case against them and that he should protect his honour.

12. The prosecution examined quite a large number of witnesses. The accused also examined two persons in their defence But this defence was not discussed by the learned Sessions Judge, as the same. It appears, was not considered necessary by him.

13. The only omnibus witness on whom the prosecution bases its case is the testimony of Shri Munshi Ram (PW 1). He is a witness who deposes to have seen the accused coming out of the house after the occurrence (ii) it is before him at the Delhi Railway Station that Ram Swarup accused-appellant made an extra-judicial confession and (iii) that the Shishi containing ether was recovered in his presence on ttie 6th of March. 1970.

14. lit is not improbable or unnatural that a Derson should be a witness to several facts, but we have to see the facts of each case in order to determine whether the testimony of such an Individual Inspires confidence or not. In the instant case, the occurrence took place at night time. Munshi Ram Is a resident of viBase Dodra. which is at a distance of about li miles from village Samnoli. where the occurrence took place. According to him, on the morning of 30th January. 1970. ha went to Hoshiarpur to purchase ornaments. as there was marriage of the son of his brother-in-law in village Lohara. He returned the same day from Hoshiarpur by a truck at 8 P. M. as he had missed the bus. He reached Bharwain at 10 P- M. From Bharwain he went on foot to Chintpurni. According to him, while one has to go from Ghintpural to Ms village then he has to p>ass by the side of the house of late Shri Dwarka Dass. He passed by the house of Dwarka Dass. at about 11 P. M. and he smelt as if some cloth was burning. Smoke was also coming out of Ihe house.. On this he called out to the inmates of the house. Immediately after he came across Ram Swarmo accused with a torch in his hand followed by Santosh Kumari. On enquiry they informed that Yashodha deceased had gone away somewhere and that her bedding had caught fire. He further on states to have told them to extinguish the fire completely and after that he went to his house.

15. It may be true that the witness may have gone to Hoshiarpur on the morning of 30th of January, 1970. but it is not understandable why he should have started so late at night by a truck when he had missed the bus. Further, it is admitted by him that the route from Bharwain to Dodra, via Chamara. is shorter than the route via Chintpurni. If that is so it is also not understood why he preferred to go by a longer route fully realising that it was night time. He has given quite evasive replies with regard to the distance bea tween Chintpurni and Dodra. He also be trayed his ignorance about the owner, driver and the conductor and the number of the truck, iii which he traveled from Hoshiarpur to Bharwain. The second fact to disbelieve the testimony of this witness Is that in cross-examination he stated that he had gone to Hoshiarpur to purchase ornaments for the marriage of his wife's brother, Nathu Ram's son. a resident of Upparla Lohara. It is not understood why he did not go and deliver the ornaments at village Lohara when the path to that village leads from Kinnu. a place just 11 miles before Bharwain and this place was also quite near from Kinnu. but instead he takes the ornaments to his own house and also prefers to walk a longer distance at mid-night. If the accused, as stated by the witness, had a torch In his hand and was seen by him they could have easily avoided talking to him and gone to a different direction instead of creating evidence against them because in the night It was not possible for the witness to have identified the accused. But in so far as the accused were concerned they had a torch with them and from a distance they could see that a man was there, and when they heard the shoutings they could run away to a different Bide or to village Nari which is at a distance of about 50 yards from the house of Santosh Kumari or the house of the deceased and thus they could have avoided being seen and Identified by the witness. It is also not understood if fire had broken out in the house why the neighbours of the deceased who were just at a distance of 50 yards could not have been aroused by the shoutings of the witness. But there is no person who has spoken that fire had broken out and they were awakened by the shoutings of a person in the village.

16. The next fact for which the prosecution depended upon the testimony of Munshi Ram is the extra judicial confession alleged to have been made by Ram Swarup on the 3rd of February. 1970 at (the Delhi Railway Station. But from the statement of the Investigating officer, Shri Man Ram (PW 29), it would appear that Munshi Ram for the first time met him on 2nd February. 1970. at Dehra. If the statement of the investigating officer is accepted as correct then the statement of Munshi Ram that he had left for Delhi on the 31st and the accused met him on the third day of his arrival at Delhi Railway Station is incorrect. There is no attempt on the part the Public Prosecutor also to have further clarified this statement in re-examination. However, the learned Advocate General has put in an application in this Court purporting to be one under Section 540 Cr.PC for recalling Shri Munshi Ram so as to clarify this discrepant statement. But this application cannot be allowed at this stage to remove any lacuna which the prosecution could get removed by way of re-examination. It is not any other prosecution witness who has made this discrepant statement but it is the investigating officer himself who has made this statement.

17. It is stated by the investigating officer towards the end of his cross-examination that he met Ram Swamp accused on the 2nd February. 1970 in village Samnoli and according to Munshi Ram (PW 1) the accused met him outside the Delhi Railway Station on the morning of the 3rd day of his arrival. Since he left on the 31st of January, 1970 and reached Delhi on the morning of 1st of February, therefore, the accused must have met him on the morning of 3rd of February. It is by chance that the accused meets Munshi Ram outside the Railway Station. Munshi Ram in fact had gone to the Delhi Cantonment which is at a distance of about 15 miles from the Railway Station to meet his son who is in the Army. Munshi Ram says that he went to the Delhi Railway Station just without any work by a taxi on payment of 10 annas fare. This story of meeting by the accused by chance appears to be highly improbable. Munshi Ram had at first stated that the accused went to him at the house of his son at the Cantonment but in the second breath he stated that he met him near a hillock near Delhi Railway Station. It passes one's comprehension as to why Munshi Ram who had gone to meet his son at the Delhi Cantonment, far away from the Delhi Railway Station, should-have gone without any reason or rhyme at the Railway Station where he meets the accused. Delhi is such a big city that it is not possible to trace out a man unless the rendezvous is previously fixed. In the present case everything happens by chance. The learned Advocate General contends that Munshi Rani was known to the accused and he was the only person to see the occurrence and so the accused ran after him to resque him by making extra judicial confession before him. It is true that a man may at some stage like to unburden himself but it is something very strange that in the instant case the accused without knowing the address of Munshi Ram rushes to Delhi and he per chance meets the witness at the Railway Station as if the witness knew that Munshi Ram was coming and he was there to welcome him outside the Railway Station . This story of everything by chance arouses suspicion that the prosecution had nothing to stand upon but to manufacture a story of extra-judicial confession so as to put life and strength in the prosecution case. Extra-judicial confessions are not usually considered with favour and usually as a matter of caution the Courts require material corroboration of confessional statement. In the Instant case the other evidence to support this extra judicial confession as is sought to be proved by the testimony of this solitary witness is very very scanty and discrepant and. therefore, this extra judicial confession sought to be proved by the statement of Munshi Ram cannot be held to be proved. So these are the factors which necessarily lead us to disbelieve the entire story of the prosecution on the question of making this extra-judicial confession by the accused to Munshi Ram who meets the accused and appears at the scene of occurrence by chance. His testimony, in view of the contradictory nature of his statement,1 cannot be relied upon.

18. The third point which Is sought to be proved by the testimony of Shri Munshi Ram is the recovery of a Shishi. Shri Munshi Ram deposes that on 6-3-1970 he participated in the investigation by the police. Ram Swamp had taken the A. S. I. and the police constables to a bush from where he recovered a small shishi from underneath a stone. At the time of recovery there was white liquid in it and it was corked. It was taken into possession by the police. After sealing the same the seal was entrusted to Shri Jagdish Prasad (PW 2.). From the testimony of this witness It would be apparent that he was associated only in the recovery of the Shishi. The disclosure statement to which I would refer later on was recorded on the 5th of March, in the presence of PWs. 13 and 14, namely. Shiv-dev Singh and Babu Ram respectively but the recovery was made on the 6th according to PWs 1 and 2 who had gone to Chintpurni where they met Shri Mani Ram (PW) the investigating officer by chance at the road side and they were called by the S. H. O. to the Sarai aind then they were asked to accompany him without telling the destination. The witnesses, therefore, accompanied the accused and the police party to the alleged place of recovery. Therefore from this it would also appear that the meeting of P. W. 1 with the investigating officer on the road-side at Chintpurni on the 6th of March. 1970 was also by chance. So in this case every thing happens by chance. From this no other conclusion can be deduced except that Shri Munshi Ram h the most convenient person to the police and he can be made to dance to their tune. He is the person who sees the accused coming out from the house of the deceased. He is the person to whom Ram Swarup rushes to Delhi to make a confession to save him and he is the person in whose presence the recovery of the Shishi alleged to have contained ether is made. It would be apparent from the statement of D W 2 that the witness Is not a man of good integrity and scruples. DW 2 has stated that in Register No. 9 (II) there is name of Munshi Ram son of Ghanaiya. Brahmin against serial No. 61, but it is written that he is acquitted and then in Part III of the same register his name figures at serial No. 12. But there is no entry about the sentence or acquittal. Again in the same register at serial No. 7 there again occurs an entry about this man for having been challaned under Section 457. IPC but there is no mention about acquittal. Again his name Ends entered against serial No. 3 in the same register for having been suspected In a case under Section 457 of the Indian. Penal Code but later on he was not challaned. But the witness has further stated that the paper is torn against this entry which clearly goes to show that the entry has been tampered with deliberately to suppress the truth from being elicited out. it may be true that no conviction has been entered in the register or he has not at all been convicted but the fact remains that he is a person whose integrity and antecedents are not free from doubt and he is a. suspect in almost all the oases and the police also interrogates Mm as can be inferred from these entries for any offence in the locality. If he is always under the shadow of the police then it can (hardly be said that he is an Independent witness but in order to please the police and to save his skin he has to dance to their tune. In the light of the aforesaid circumstances the statement of this witness with regard to the fession of havinig seen the accused coming out from the house and about the extra judicial confession having been made by Earn Swarup cannot be relied upon. In so far as the recovery is concerned the same also does not inspire any confidence. The disclosure statement was made on the 5th and the recovery was made on the 6th of March in the presence of chance witnesses. PW 2 is a resident of village Ghai which Is 15 miles distant from Chint-purni, where he is stated to have gone just without any work and he also casually meets the S. H. O. to whom he was not known. The S. H. O. was introduced to him by PW 1, a man of highly dubious character. According to this witness also mere was some white liquid in the Shishi. The seal was entrusted to him butt he failed to produce the same in the Court satating that the same had been lost, which shows that he was not at all present at the tame of recovery and he is a faked witness. The Shishi. according to the Chemical Examiner, contained 6 cc of ether, but it is surprising why this Shi-ani if at all it contained ether, and ether from this bottle was administered o the deceased by the accused was concealed by him. He was a trained Compounder as stated by the P. Ws. and after he had achieved his goal he could very conveniently destroy that bottle without having corked it so that the ether, if any left therein could evaporate. There was no necessity for him to have concealed this bottle near the dace of occurrence.

The doctor who has appeared as PW4 has stated that at the time of post mortem there was no odour of ether from the body which might have been masked due to extensive burns. In fact he gave (his opinion about the effects of ether etc. only at a subsequent stage on an application. Ex. PW 4/B, made by -the S. H. O. Jawalamukhi. The doctor says that he did not notice any odour of ether while opening the thoracic cavity which ought to have been there if the ether had been inhaled. He did not notice any frothy mucus in the trachea which ought to have been there In case of ether Inhalation. He did not find In it any ether smelling oedematous lung fluid which ought to have been there If ether had been inhaled. Further he has stated that none of the internal organs emit ether odour at the time of post mortem in this case. The Internal organs should have emitted the odour of ether if ether was inhaled depending upon quantity of ether and the duration for which it had been inhaled. In cross-examination he has further deposed that the effect of ether on the internal organ can persist for a week or so depending upon the organs involved. If ether has been used in quantities which induces unconsciousness the effects of the ether will persist on different organs for a week, that is, lungs, brains, kidneys, liver and urine bladder and also heart and at the time of post mortem examination he had viewed from all points I. e. poisoning etc.. In the face of this medical evidence, the possibility of having administered ether is completely ruled out.

19. The learned Sessions Judge, Hi appears, was inclined to believe the prosecution- version that ether had been administered by the accused because of two facts, firstly, the prosecution had brought evidence to the effect that the accused was a Compounder and had been working as such. Again the accused made the disclosure statement consequent to which he got the Shishi containing ether recovered and the Chemical Examiner also opined that there was ether 6 cc in the bottle and he was Inclined to hold that before Jasodha deceased was done to death something was administered to her and this something, in our opinion, according to him was ether because of the recovery of this bottle and the opinion of the Chemical Examiner. Built in our opinion this conclusion of his. appears to be wholly incorrect and erroneous, based on. conjectures. The recovery is nothing but a farce and there is every possibility of the Shishi being planted there because place from where the recovery is stated, to have been made is by the side of a path which is used by all and sundry. Secondly, the disclosure statement was made on the 5th of March and the recovery was made on the 6th of March after the arrival of the two convenient persons who could depose as required by the police.

20. Again, It may be stated here that the disclosure statement also is nothing but a farcical document. The witnesses to this disclosure statement are PWs. 13 and 14. PW 13 went to the police station of his own accord in connection with certain verifications. As for PW 14, he is a Chawkidar and he also went there of his own accord at about 10 a.m. on the 5th. of March. Both these witnesses state alike that the accused Rain Swarup who was in the police lock up was handcuffed and was brought out from the police station in their -presence and then he was interrogated. The interrogation started at 10 and it took about 5 hours for the Interrogation before the accused made the disclosure statement According to PW 14. during the interval from 10 a. m. to 3 p. m. Ram Swarup accused gave out different stories and It was only at 3 p. m. that he made this disclosure statement. Ex. PW 13/A. The other witness also supports this fact that the interrogation continued right upto 3 p.m. Therefore, from this Ions interrogation the only conclusion that can be possible is that the accused was harassed and did not make any voluntary statement. This is supported by the testimony of PW 14 who says that the accused gave different versions during the period of interrogation from 10 a. m. to 3 p. m. In such a case where it is the result of a long interrogation and where the accused has made different versions during Ms long interrogation it would follow that he was subjected to harassment which renders this disclosure statement involuntary and as such inadmissible. In this I am supported by Amrut Soma v. State of Bombay. (AIR 1960 Bom 488). Further, Shis disclosure statement is farce in the sense also that these witnesses had been brought simply to witness the fact of disclosure made by the accused, otherwise it appears that the accused may have made the disclosure at an earlier stage or (the police may have come to know of the concealment or of the planting at an earlier occasion and they simply waruted to create evidence and waited for the arrival of these two handy and convenient persons. Further if the disclosure had been made on the 5th, why the recovery was deferred for the 6tih. This also creates doubt with regard to the truthfulness of this story of the orosecu-Boa. It is Quite possible that during this period the police may have got this Shishl planted after they knew that the accused was a Compounder and they could really manufacture a story of having administered something whereby she could become unconscious before she was done to death by fire. In the circumstances the disclosure statement as also the recovery are not at all believable.

21. It has also been held by the learned Sessions Judge and vehemently argued by the learned Advocate General that the conduct of the accused in absconding from the place of occurrence immediately after the arrival of the police is quite meaningful and that was one of the strongest links in the chain of circumstantial evidence to connect the accused with the commission of the offence. But it may be stated that the accused1 Ram Swanro does not always live at Hari near the place of occurrence but he lives at several places as is evident from the statement of Munshi Ram (PW1) when he says 'Ram Swarup had been residing in Jammu, Delhi. Jullunder and Una.' It Is a common case that the accused made a report at the police station and he came with the police. Accord-Ing to the investigating officer, Shri Mani Ram. the accused Ram Swarup was there at the place of occurrence on 2-2-1970 and he says that he knew that wife of Ram Swarup accused is mistress at Jammu. It is not denied that the A. S. I. and the police came along with Ram Swaru accused to the village on the 31st of January. 1970 and the accused, as is evident from the statement of Mani Ram (PW 29) was there in the village till the 2nd of February. 1970. So if the accused thereafter left for Jammu where his wife is a mistress as deposed to by PW 29. the investigating officer, then we do not find anything wrong in his going to that place. It cannot be said that he had absconded and that this act of his absconding was meaningful and a strong piece of evidence against him. In Rehman. v. State of U. P. (AIR 1972 SC 110) the appellant and his wife had been sentenced by tlhe Sessions Judge under Sections 302/34, 369. 379, 201 of the Penal Code for having done to death a three years old girl by strangulation. A search was made and the father of the girl along with the other members of the search party reached the house of the accused-appellant and his wife. Rehman was outside the house and his wife was inside the house. He called out to his wife inside that those persons had come and that she should permit them to do so. which was a sort of warning. The search party entered the house, found the dead body of the girl and in the meanwhile Rehman absconded and was arrested after about a month. The High Court upheld the conviction and the Hon'ble Supreme Court observed on the point that he had1 absconded, as under:-

It is true that the appellant was concealing himself for nearly a month though he must have known .that he was wanted by the Police and that he left his wife to face the situation alone. But absconding by itself is not conclusive either of the guilt or of a guilty conscience. For, a person may abscond on account of fear of being involved in the offence or for any other allied reason.

22. Therefore, in the face of this dictum of the Hon'ble Supreme Court the conduct of the accused which has been taken as a strong piece of evidence by the learned Sessions Judge and has been strenuously argued by the learned Advocate General that it is quite meaningful, camnot be held to be conclusive in view of the circumstances of the case also.

23. Further, one of the (points that has been argued by the learned Advocate General, is the motive ascribed to the accused for having put her to death. The submission made is that Santosh Kumari wanted the acceleration of the succession. But motive alone, howsoever strong it may be. cannot be made the basis for conviction unless it receives corroboratlon from other sources.

24. It has also been contended that the accused Ram Swamp wanted that the dead body of Jasodlha be cremated very early so that the evidence of murder could be wiped out and he has drawn our attention to the testimony of Sh. Som Datt (PW 21) that the accused was keen to get the dead body cremated early. But this fact by itself will not be sufficient to found conviction.

25. Further, the Advocate General contends that the deceased had disclosed and stated to several persons who had appeared in the witness box also that she apprehended danger at the hands of the accused and it wag Immediately thereafter that she was found dead and these complaints, according to him, about her apprehending danger at the handte of the accused were like dying declaration and this was sufficient for conviction. But we ere sorry that this proposition cannot be accepted unless there is corroborative evidence which is badly wanting in this case. The accused cannot be convicted merely on the basis of suspicion howsoever strong the suspicion might be. There must be legal evidence to connect the accused with the commission of the offence and suspicion cannot take the place of proof and for this we place reliance on Sarwan Sinsh Rattan Singh v. State of Punjab. : 1957CriLJ1014 .

26. In the light of the above, therefore, the judgment and the order of conviction and sentence passed by the learned Additional Sessions Judge, Dharamshala cannot be upheld and must, therefore, be reversed.

27. The result, therefore, is that the appeal is allowed. The judgment is reversed. The conviction and sentence te quashed and the accused are acquitted. The fine, if paid, shall be refunded.

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