KEYWORDS: -DYING DECLARATIONDying declaration Corroboration of the dying declaring statement isn’t required when it inspires the confidence of the court to convict the accused. [Rajendra s/o Ramdas Kolhe v State of Maharashtra, 2024 INSC 422] –
DATE:-17-08-1999-
- There is DISTINCTION between the evaluation of dying declaration under the English lawLaw νόμος: Positive command of sovereign or divine. One can be ruled either by a Statute, a Statue, or a Statement. Legislation is the rule-making process by a political or religious organisation. Physics governs natural law. Logical thinking is a sign of a healthy brain function. Dharma is eternal for Sanatanis. Judiciary > Show me the face, and I will show you the law. Some people know how to bend the law rather than break it. Law Practice. Read a scholarly article and that under the Indian lawIndian Law Basic Indian Laws Indian Ancient Laws Manu Smriti. Under the English law, credence and the relevancy of a dying declaration is only when person making such statement is in hopeless condition and expecting an imminent death. So under the English law for its admissibility, the declarant should have been in actual danger of death at the timeTime χρόνος. Judicial: Where any expression of it occurs in any Rules, or any judgment, order or direction, and whenever the doing or not doing of anything at a certain time of the day or night or during a certain part of the day or night has an effect in law, that time is, unless it is otherwise specifically stated, held to be standard time as used in a particular country or state. (In Physics, time and Space never exist actually-“quantum entanglement”) यमः , पुं, (यमयति नियमयति जीवानां फलाफलमिति । यम् + अच् । विश्वे च कलयत्येव यः सर्व्वायुश्च सन्ततम् । अतीव दुर्निवार्य्यञ्च तं कालं प्रणमाम्यहम् ॥यमैश्च नियमैश्चैव यः करोत्यात्मसंयमम् । स चादृष्ट्वा तु मां याति परं ब्रह्म सनातनम् ॥ when they are made, and that he should have had a full apprehension of his danger and the death should have ensued. Under the Indian law the dying declaration is relevant whether the person who makes it was or was not under expectation of death at the time of declaration. Dying declaration is admissible not only in the case of homicide but also in civil suits. Under the English law, the admissibility rests on the principle that a sense of impending death produces in a man’s mindMind We know nothing about its origin, growth, or demise. Where it lives, can it live without a brain? Possibly, the mind is the soul and spirit. See Consciousness the same feeling as that of a conscientious and virtuous man under oath. The general principle on which this species of evidenceEvidence All the means by which a matter of fact, the truth of which is submitted for investigation, is established or disproved. Bharatiya Sakshya (Second) Adhiniyam 2023 are admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this worldWorld Κόσμος is gone, when every motiveMotive Intending to collect money he started to motivate the people to donate to him. Intention comes first then motive to take the course. Motive is action > Reason, Root, Rationale, Purpose, Excuse. Section 4 BSA (Admission/Confession of Motive-S 22 BSA) to flasehood is silenced, and the mind is induced by the most powerful considerations to speak only the truthTruth Mathematical 'truth' may not be agreeable with the philosophical 'truth.' A question may be asked on propositional 'truth' on the grounds of physics, that space and time actually don't exist. Vedic injunction Satyam Param Dhimahi, technically Satya is none other than Brahman. For Madhymic Buddhists there is nothing as such to be called 'truth', as all the corresponding facts are only mental projections. Apart from Bio-neuroelectricity nothing exists for Biological Cognition. So-called religious truths are nothing more than a marketing strategy.. If evidence in a case reveals that declarant has reached this state while making declaration then within the sphere of the Indian law, while testing the credibility of such dying declaration weightage can be given. Of course depending on other relevant facts and circumstances of case.
AIRAIR All India Reporter 1999 SC 3062 : (1999) 1 Suppl. SCRSupreme Court Reports It is the official Reporter of the reportable decisions delivered by the Supreme Court of India. It is published under the authority of the Supreme Court of India by the Controller of Publications, Government of India. 517 : (2000) 1 SCCSCC Supreme Court Cases 310 : JT 1999 (6) SC 41 : (1999) 5 SCALE 31 : (1999) CriLJ SC 4070
(SUPREME COURT OF INDIAArticle 124 of the Constitution of India Constitution of India > 124. Supreme Court (1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges. (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal and shall hold office until he attains the age of sixty-five years: Provided that-- (a) a Judge may, by writing under his hand addressed to the President, resign his office (b) a Judge may be removed from his office in the manner provided in clause (4). (2A) The age of a Judge of the Supreme Court shall be determined by such authority and in such manner as Parliament may by law provide. (3) A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and-- (a) has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or (b) has been for at least ten years an advocate of a High Court or of two or more such courts in succession; or (c) is, in the opinion of the President, a distinguished jurist. (4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-third of the members of the House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehavior or incapacity. (5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehavior or incapacity of a Judge under clause (4): (6) Every person appointed to be a Judge of the Supreme Court shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule. (7) No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India.)
| Kishan Lal | Appellant |
| Versus | |
| State of Rajasthan | Respondent |
(Before : K. T. Thomas And Ajay Prakash Misra, JJ.)
Criminal AppealCriminal Appeal Shankar Kerba Jadhav and others vs. The State of Maharashtra (AIR 1971 SC 840): "An appeal is a creature of a statute and the powers and jurisdiction of the appellate Court must be circumscribed by the words of the statute. At the same time a Court of appeal is a "Court of error" and its normal function is to correct the decision appealed from and its jurisdiction should be co-extensive with that of the trial Court. It cannot and ought not to do something which the trial Court was not competent to do. There does not seem to be any fetter to its power to do what the trial Court could do." No. 156 of 1998, Decided on : 17-08-1999.
Evidence Act, 1872—Section 32—Dying declaration—Evidentiary value—Principle of DISTINCTION between English law and the Indian law.
Dying declaration—Stage of—The statement given two months after the alleged incident and not under expectation of death—Reliance on such dying declaration is not proper.
Evidence Act, 1872—Section 32—Dying declaration—Stage of—The statement given two months after the alleged incident and not under expectation of death—Reliance on such dying declaration is not proper.
Counsel for the Parties:
U. R. Lalit, Sr. Advocate, Sushil Kr. Jain, A. P. Dhamija, Umesh Bohre, Ms. Anjali Doshi, Advocates with him, for Appellant
Ms. Sandhya Goswami, Advocate, for Respondent.
Judgement
A. P. Misra, J—The appellant-Kishan Lal, husband of deceased-Smt. Sulochana has filed this appeal against his conviction under S. 302 read with S. 34 of the IndianIndia Hind/ hend >hindia. Bharat Varsha (Jambudvipa used in Mahavamsha) is the name of this land mass. The people of this land are Sanatan Dharmin and they always defeated invaders. Indra (10000 yrs) was the oldest deified King of this land. Manu's jurisprudence enlitened this land. Vedas have been the civilizational literature of this land. Guiding principles of this land are : सत्यं वद । धर्मं चर । स्वाध्यायान्मा प्रमदः । The place also been called Hindusthan in Pesia. The word Hendu is mentioned in Avesta. Read more Penal CodePenal Code Indian Penal Code (Naya Samhita-2023), Pakistan Penal code-1960, (hereinafter referred to as “I.P.C.”)
2. The High CourtHigh Court High Court Judges in England and Wales handle complex and tough cases, sitting in London and traveling to court centers around the country. They preside over serious criminal and important civil cases, and support the Lord and Lady Justices in hearing appeals. High Court Judges are commonly referred to as ‘Mr/Mrs/Ms Justice surname’ and are given the prefix ‘The Honourable’. They are assigned to the King’s Bench Division, the Family Division, or the Chancery Division. The King’s Bench Division focuses on civil wrongs and judicial review, the Family Division deals with family law, and the Chancery Division handles various cases including company law and probate. Judges are appointed through a rigorous process overseen by the Judicial Appointments Commission. convicted the appellant on an appeal filed by the State against an order of acquittal passed by the Additional Sessions Judge. The brief facts are that Smt. Sulochana, according to the prosecution case, was sleeping on the intervening night between 11th and 12th September, 1976 with the mother of the appellant on a separate cot when she was burnt by sprinkling keroseneKerosene A liquid oil product mostly used as an aviation fuel, historically also used as fuel for oil lamps. Comprises refined petroleum distillate intermediate in volatility between gasoline and gas/diesel oil. A medium oil distilling between 150 °C and 300 °C. Has a lower heating value of around 43 MJ/kg. As of 2023, the overwhelming majority of kerosene is derived from crude oil distillation, but synthetic kerosene manufactured from hydrogen and CO2 is beginning to enter the market. oil on her chest. She was shifted to the hospital at Pilibanga at 2.00 a.m. Doctor of the hospital sent information to SHO Police Station, Lekhuwali on which investigationInvestigation Purpose of all investigation is to reveal the unvarnished truth. The constitutional courts are duty bound to ensure that the truth is revealed. started. At 4.30 a.m. police recorded the statement of the deceased. The statement recorded by the police was not brought on the record by the prosecution. She was initially treated at Pilibanga hospital and was later shifted to Bikaner Hospital. While in the hospital on the 17th September, 1976, Smt. Sulochana gave birth to a macerated male child. On 28th October, 1976 skin grafting was done on her.
3. The case of the complainant is that deceased-Smt. Sulochana has given an oral dying declaration to her father, grandmother and uncle that she was burnt by the appellant, his mother, father and brother. On 11th November, 1976 complaint was made by the father of the deceased-Smt. Sulochana that her daughter was burnt and on his said complaint a dying declaration was recorded by the Magistrate.
4. On the 15th of November, 1976 all of a sudden the condition of Smt. Sulochana deteriorated and she died in the evening. On the basis of the above complaint dated 11th November, 1976 a case was registered against the accused and investigation was started. The police after investigation could not find any sustainable evidence against the appellant and other family members mentioned in the complaint, hence submitted final report.
5. Thereafter, a complaint was filed by Chandu Lal, father of the deceased before the Court of Judicial Magistrate First Class in which he referred to one dying declaration dated 6th November, 1976 made to him, his wife, grand-mother and other relatives apart from one dated 11-11-1976 before a Magistrate. It also mentions oral extra-judicial confession alleged to have been made by the appellant in a Panchayat. Though complaint was made against four persons, namely, the appellant, his mother Poora, his father Banwari Lal and his brother OmOm सोऽयमात्माध्यक्षरमोङ्कारोऽधिमात्रं पादा मात्रा मात्राश्च पादा अकार उकारो मकार इति ॥ ८ ॥ (Mandukya) Prakash, but the Magistrate took cognizance only against the appellant and his mother Smt. Poora under S. 302 read with S. 34, I.P.C.
6. During trial, complainant produced 11 witnesses which included P.W. 10 Murarilal, Munsif and Judicial Magistrate (who recorded the statement of Smt. Sulochana on 11th November, 1976) and P.W. 11 Dr. Sharad Chand Kalla (who conducted the post-mortem examination on 16th November, 1976). It is significant to note that the complainant did not examine either the Investigating Officer or called for police record which contained the earliest version of the deceased, which is said to have been recorded at 4.30 a.m. on the 12th September, 1976 itself in which police finally submitted final report.
7. The complainant relied strongly on two dying declarations, one oral declaration, as aforesaid, dated 6th November, 1976 and the other 11th November, 1976 recorded by a Judicial Magistrate and extra-judicial confessions made by the appellant before Panchayat on two different occasions.
8. To a question raised for the appellant, when Smt. Sulochana was admitted in the hospital on the 12th September, 1976 why it is only on 6th November, 1976 for the first time oral dying declaration is alleged to have been made by her to her father, grandmother and uncle etc. The answer given is that she remained unconscious during this period. The trial CourtTrial court Court of original Jurisdiction > the court which examines the evidences for the first time. disbelieved this factFact Something तथ्य (In-formation) that truly exists or happens or some-thing that has actual existence. Circumstances: a fact or event that makes a situation the way it is. Indian Evidence Act: It means and includes— (i) anything, state of things, or relation of things, capable of being perceived by the senses; (ii) any mental condition of which any person is conscious. “facts in issue” means and includes any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows. on the basis of the hospitals bed head ticket Ex. D. 11. It held, it reveals that she was not unconscious for all this period rather she was consciousConscience The mind (depending on bio-electricity) can not work without memory and information, but consciousness can. Dreams come from consciousness. Conscience, in its moral sense, is the innate human ability to discern right from wrong and, based on this awareness, to guide, monitor, evaluate, and regulate one’s actions accordingly. Read: Mind is man. from time to time and had regained consciousnessConsciousness The mind’s (Mind) function that receives, processes, and evaluates information through the five senses, imagination, emotion, reason, and memory. The senses gather data, imagination and emotion interpret it, reason judges its value, and memory stores or discards it. In neurophysiology, consciousness is often defined as “subjective awareness” — the state of being aware of oneself and one’s surroundings..
9. Dealing with the oral dying declaration, the trial Court held that the three witnesses had stated differently. This creates doubt. To one she stated that she saw one lady and three gents before she became unconscious. To the second, she stated that she became unconscious on seeing herself on fireFire It was created from stones approximately 400,000 years ago, or possibly much earlier. Researchers have discovered the earliest known instance of human-created fire, which took place in the east of England 400,000 years ago (in the village of Barnham). The Rigveda mentions the use of Agni for Yagna much earlier than 10,000 years ago. and before the third witness she stated that she was sleeping and when she woke up all the four accused set fire to her clothes. For all these reasons the trial Court disbelieved this story and consequently the case that appellant-Kishan Lal poured kerosene oil on her and set her on fire. The trial Court also rejected the extra-judicial confession as alleged by the complainant by disbelieving the statement of witnesses in its support and held them not trustworthy. Thus trial Court acquitted both, the appellant and his mother Smt. Poora. After acquittal, though earlier the police filed final report referring the case and the trial proceeded only on a private complaint the State filed an appeal against this acquittal both against the present appellant and his mother Smt. Poora. The complainant did not file any appeal. Before dealing with how the High Court dealt with this case it is necessary to refer to some basic facts.
10. The marriage of deceased-Smt. Sulochana with the appellant was held on 17th July, 1975. There arose some dispute between her father Chanda Lal and father of the appellant-Banwari Lal regarding the amount paid in the marriage. The prosecution case is that the appellant (Kishan Lal), her mother-in-law (Smt. Poora), her father-in-law (Shri Banwari Lal) and brother-in-law (Om Prakash) continuously pressurised Smt. Sulochana to bring ` 5100/- from her father. On the 12th of September, 1976 she was given beating by her husband. He took all her ornaments and threatened her that she would be killed. After midnight, at about 1 a.m. when Smt. Sulochana was sleeping with her mother-in-law Poora the accused persons poured kerosene oil on her and set her on fire.
11. The High Court with reference to the dying declaration dated 11th November, 1976 before a Magistrate held;
“though in the said statement she did not name the appellant or any accused persons but the tenor of her statement clearly reveals that she indirectly named her husband and mother-in-law as the persons who took part in her burning.”
12. With reference to the alleged earlier dying declaration dated 6-11-1976 made before her father, grand-mother, uncle and other relatives, the High Court believed the statement of Chandu Lal P.W. 1, Shri RamLord Rama A prince of the Solar Dynasty (Ikshaku Vamsa, capital Ayodhya). His victorious story was portrayed by Valmiki in Ramayana. He identified him as the Avatar of Lord Vishnu. When the Brahmins became unethical, cruel, and greedy, he appeared to restore the Sanatan Dharma. He was trained by Rishi Viswamitra. His rule impacted for 10000 years. Ramrajya means good administration. P.W. 3 and Mst. Sajna P.W. 6 viz. the father, uncle and grand-mother of the deceased. The High Court further accepted the extra-judicial confession by believing the statements of Chandu Lal P.W. 1, Ganesh Dutt P.W. 2, Shri Ram P.W. 3. Khubi Ram P.W. 4 and Hans Raj P.W. 5. The High Court recorded that these witnesses have stated before the Panchayat that in the one held in Rai Singh Nagar SchoolSchool Σχολή > such as Σχολή Βυζαντινής Μουσικής, the appellant, Smt. Poora – the mother, Banwari Lal – the father, admitted their guilt and sought for forgiveness. The findings of the trial Court thus were set aside with reference to this extra-judicial confession. Though the High Court recorded that P.W. 1, P.W. 3, P.W. 4 and P.W. 5 were brothers learned Judges believed this extra-judicial confessions on the basis of deposition of Ganesh Dutt P.W. 2 who was Pujari of the family of the deceased-father. The High Court further recorded even if the extra-judicial confession was ignored the evidence of dying declaration leads to the irresistible conclusion that appellant was the person who burnt Smt. Sulochana.
13. It is necessary to point out that during the pendency of the said appeal before the High Court, accused Smt. Poora, the mother of the appellant died. Hence the case against her abated. Aggrieved by this judgmentJudgment The statement given by the Judge on the grounds of a decree or order - CPC 2(9). It contains a concise statement of the case, points for determination, the decision thereon, and the reasons for such decision - Order 20 Rule 4(2). Section 354 of CrPC requires that every judgment shall contain points for determination, the decision thereon and the reasons for the decision. Indian Supreme Court Decisions > Law declared by Supreme Court to be binding on all courts (Art 141 Indian Constitution) Civil and judicial authorities to act in aid of the Supreme Court (Art 144) Supreme Court Network On Judiciary – Portal > Denning: “Judges do not speak, as do actors, to please. They do not speak, as do advocates, to persuade. They do not speak, as do historians, to recount the past. They speak to give Judgment. And in their judgments, you will find passages, which are worthy to rank with the greatest literature….” Law Points on Judgment Writing > The judge must write to provide an easy-to-understand analysis of the issues of law and fact which arise for decision. Judgments are primarily meant for those whose cases are decided by judges (State Bank of India and Another Vs Ajay Kumar Sood SC 2022) of the High Court which set aside the judgment of acquittal, the present appeal has been filed by the appellant. The judgment of High Court reveals that conviction by it is based on two dying declarations and the alleged extra-judicial confession.
14. We have heard learned counsel for the parties. With reference to the dying declaration dated 11th November, 1976 made before the Magistrate, it is not in dispute that the deceased did not name any accused including the appellant. It is also not in dispute that at this point of time she was fully conscious and gave statement before the Magistrate. The relevant portion recorded therein is reproduced hereunder:-
“Then I felt falling of the drops. I got up and started running and at that time I got fire. At the time of getting fire I saw one lady and two/three gents standing there. This incident took place in the house of my in-laws at Pilibanga.”
15. On specific questions being put by the Magistrate as to who were those persons, she could not name any. This part of her statement is also reproduced hereunder:-
“Who were the persons:
Due to the fire darkness came in my eyes, I became unconscious and fell down and I could not recognise the lady and the gents standing there.”
16. This dying declaration does not in any way help the prosecution. When admittedly at this point of time she was fully conscious, still she could not name any of the accused. She states she could not recognise any because of fire darkness coming in her eyes. This dying declaration could in no way be said to implicate the appellant. If at all, it runs counter to the alleged earlier dying declaration. The other oral dying declaration is dated 6th November, 1976, which is said to have been deposed by her to her father P.W. 1, her uncle P.W. 3 and grandmother P.W. 5. The High Court seems to have taken great strain to believe the deposition of these witnesses. We have examined the testimony of these witnesses. There are serious discrepancies in their testimony with reference to this dying declaration, apart from the fact that they are closely related to the deceased being father, grant-mother and uncle. They made different statements with respect to the same declaration made by her to them. The trial Court has in detail rightly recorded such discrepancies and did not believe the story of this other oral dying declaration. Further it is significant that the oral dying declaration is said to have been made five days before the dying declaration made to the Magistrate. It is incredible to note that according to the complaint she regained consciousness on the 6th of November, 1976 and when she gave the first oral dying declaration, she named accused therein. But in the second dying declaration dated 11th November, 1976 made before a Magistrate she did not name any of the accused even on specific question being asked by the Magistrate.
17. Examining these two dying declarations, we find not only that they gave two conflicting versions but there is inter se discrepancies in the depositions of the witnesses given in support of the other dying declaration dated 6-11-1976. Finally, in the dying declaration before a Magistrate on which possibly more reliance could have been placed the deceased did not name any of the accused. Thus, we have no hesitation to hold that these two dying declarations do not bring homeHome Αρχική > the guilt of the appellant. High Court, therefore, erred in placing reliance on it by erroneously evaluating them.
18. Now we proceed to examine the principle of evaluation of any dying declaration. There is DISTINCTION between the evaluation of dying declaration under the English law and that under the Indian law. Under the English law, credence and the relevancy of a dying declaration is only when person making such statement is in hopeless condition and expecting an imminent death. So under the English law for its admissibility, the declarant should have been in actual danger of death at the time when they are made, and that he should have had a full apprehension of his danger and the death should have ensued. Under the Indian law the dying declaration is relevant whether the person who makes it was or was not under expectation of death at the time of declaration. Dying declaration is admissible not only in the case of homicide but also in civil suits. Under the English law, the admissibility rests on the principle that a sense of impending death produces in a man’s mind the same feeling as that of a conscientious and virtuous man under oath. The general principle on which this species of evidence are admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak only the truth. If evidence in a case reveals that declarant has reached this state while making declaration then within the sphere of the Indian law, while testing the credibility of such dying declaration weightage can be given. Of course depending on other relevant facts and circumstances of case.
19. The incident is said to have taken place on the night of 11th and 12th September, 1976. She died on the 15th of November, 1976 and post-mortem was conducted on 16th November, 1976. In other words the date of post-mortem is more than two months after the alleged incidence of burning. In this light we proceed to examine the post-mortem report and the deposition of doctor Mr. Sharad Chand Kala P.W. 11.
20. In the post-mortem report we find the doctor recorded that all her organs to be healthy, namely, skull, brain, the spinal cord, ribs, larynxSpeech 400 million years ago, the larynx was developed and allowed for communication with other animals. 60 million years ago, human beings talked about Dynosure or like animals in India. The vocal tract was in place to support modern human discourse as early as 300,000 years ago in the Indian subcontinent. , trachea, lungs, heart, lever spleen and kidney, etc. The cause of the death according to the doctor is syncope which is attributable to heart. This report does not record even deep burns on the body of the deceased. Thus on its basis no inference could be drawn that she died on account of the alleged burn injuries. In his deposition this doctor, Kala P.W. 11, deposed:
“The superficial burns of the patient had been cured. There were wounds of deep burn which I had not recorded in the post-mortem.”
21. This is the state of medical evidence, which only records, the superficial burns which has been cured and does not record any deep burn. On the basis of this medical evidence how could any inference be drawn that cause of death after more than two months of the incidence was because of the burn injuries. This coupled with the evidence during this period, she gave birth to a dead child and on her person a skin grafting was done. For this additional reason also no reliance can be placed on the said two dying declarations.
22. In the present case, as aforesaid the dying declaration was after two months of the alleged incidence. It was not at a time when the deceased was expecting imminent death. Neither the post-mortem nor deposition of doctor carry any definite inference that the cause of death was on account of burning. There is a conflict between two dying declarations, in one there is inter se inconsistency as revealed in the depositions of witnesses, in the other no naming of any accused, when made before a Magistrate. On such an evidence trial Court rightly declined to base a conviction. The High Court committed manifest error in placing reliance on it.
23. So far as the extra-judicial confession is concerned it is said that the same was made by the accused at Panchayat on two occasions. First Panchayat is alleged to have taken place at Chak 22 P.S. and the other in the school at Raisinghnagar. The father’s testimony in cross-examination when confronted with his statement in Ex. D.2 (made by him during the enquiry made under S. 202 of the Code of Criminal Procedure) wherein he did not name any of the accused persons, he made the usual answer that the name might not have been recorded by mistake. But in the alleged second Panchayat, the names of large numberNumber Αριθμός of persons were referred to as to have confessed their guilt, including the appellant. It includes even the names of those who are not even accused. It is alleged that they sought for the pardon of the local leaders for this guilt. We find even in this alleged confession, there is no mention that the accused had burnt the deceased-Smt. Sulochana. The alleged confession by large number of persons is more in a general and vague term. Before a confession is relied onRelied on Relied to make the decision (ratio decidendi) and not only referred to push an issue. it must be clear and unequivocal, whether it is in a judicial or in an extra-judicial confession.
24. On the facts discussed above we have no hesitation to hold that reliance should not have been placed on the so-called confessions. The trial Court rightly rejected it but unfortunately the High Court very casually accepted it which cannot be sustained.
25. Further the present case is a complaint case. The complainant has not attempted to bring on record the earliest version of the deceased which is said to have been recorded by police at 4.30 a.m. on the date of incident itself. The prosecution has not examined the Investigating Officer. Prosecution has not thus provedProved A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists; the guilt of the appellant by any cogent evidence.
26. In this background, we hold that the High Court has committed an error by setting aside the acquittal of the appellant and convicting him under S. 302, I.P.C. The finding recorded by the trial Court were based on proper evaluation and proper appreciation of evidence on record.
27. Accordingly, the present appeal of the appellant is allowed. His conviction and sentence under S. 302 read with S. 34, I.P.C. are set aside. We restore the order of acquittal. If the accused is in jail he shall be set at liberty unless required in connection with some other case.