Holding

The dying declarations and extra‑judicial confessions were unreliable and could not form the basis of conviction, so the conviction under Section 302 IPC was set aside and the acquittal restored.

Summary

The deceased Smt. Sulochana was allegedly burnt and later died; she gave an oral dying declaration on 6 November naming the appellant and his family, and a later statement before a magistrate on 11 November that did not name any accused. The police investigation found no sustainable evidence, leading the trial court to acquit the appellant. The Rajasthan High Court reversed the acquittal, relying on the two dying declarations and alleged extra‑judicial confessions made before Panchayats. The Supreme Court held that the dying declarations were conflicting, not made at a time of imminent death, and lacked corroboration, while the extra‑judicial confessions were vague and unreliable; moreover, the post‑mortem did not establish death by burns. Consequently, the Court set aside the conviction under Section 302 IPC and restored the acquittal.

Issues considered

Whether the oral dying declaration and the magistrate's dying declaration are admissible and sufficient to sustain a conviction under Section 302 IPC.
Whether the extra‑judicial confessions recorded before Panchayats are reliable and can be used as evidence.
Whether the post‑mortem findings establish that the cause of death was due to the alleged burns.
Whether the High Court erred in convicting the appellant based on the aforesaid evidence.
Whether the trial court's acquittal should be restored.

Legislation cited

Code of Criminal Procedure, 1973s. 173, s. 202
Indian Penal Code, 1860s. 302, s. 34

Subjects

dying declarationextra‑judicial confessionSection 302 IPCconvictionacquittalevidentiary evaluationpost‑mortem evidenceCriminal Procedure CodeIndian Penal Code

Judgment

KISHAN LAL A,
; v.
STA TE OF RAJASTHAN

AUGUST 17, 1999

[K.T. THOMAS AND A.P. MISRA, JJ.] B

Criminal Trial:

Dying declaration-Oral dying declaration made before close relatives
of the deceased and one before a Magistrate-Discrepancies in -Conviction, C
ifsustainable-Police filing final report after investigation that no sustainable
evidence against the accused persons-Complaint filed by father o/the
deceased on the basis of oral dying declaration made before father,
grandmother and uncle and a dying declaration recorded by the Magistrate
after five days of the alleged oral dying declaration-In the dying declaration D
made before the Magistrate, deceased did not name any accused even on a
specific question asked by Magistrate-The dying declaration was after two
months of the alleged evidence-Held, the two dying declarations did not
bring home the guilt of the accused-Criminal Procedure Code, 1973, Section
173-Penal Code, 1860, Section 302.
E
Dying declaration-Principle of evaluation-Distinction between the
English and Indian Law-Discussed

Confession-Extra-judicialconfessions-Made before Panchayat on two
occasions-Confession was of general nature and vague-Reliability of-
Held, before a confes.sion is relied on it must be clear and unequivocal, F
whether it is in a judicial or in an extra judicial confession.

While the deceased was sleeping on the intervening night between 11th
and 12th September she was burnt by sprinkling kerosene oil on her chest.
The mother of the appellant-accused was also sleeping in the same room. At
about 2.00 a.m. the deceased was shifted to hospital and the doctor called the G
police. At 4.30 a.m. police recorded the statement of the deceased, but it was
not brought on record by the prosecution. On 17th September, deceased gave
birth to a macerated child and on 28th October, skin grafting was done on
her. The post-mortem report recorded all her organs to be healthy, and that
there were only superficial burns, which had been cured. It did not record H
517
518 SUPREME COURT REP.ORTS (1999] SUPP. I S.C.R.

A any deep burn. The cause of death according to it was syncope, which was
attributable with heart.

It was alleged that deceased gave an oral dying declaration to her
father, grandmother and uncle that she was burnt by the appellant, his
mother, father and brother. On 1lth November a complaint was made by the
B father of the deceased that his daughter was burnt and on the said complaint
the Magistrate recorded a dying declaration in which the deceased did not
name any accused including the appellant even to specific question asked by
the Magistrate. The police after investigation filed a final report that no
sustainable evidence was found against the appellant and his family members.
C Hence a complaint was filed by the father _of deceased in which he referred
to one dying declaration made to him, his wife, grand-mother and other
relatives apart from the one dated 11th November' before a Magistrate. The
Magistrate took cognizance of the offence against the appellant and his
mother under Section 302/34 IPC. The complainant during the trial relied
strongly on the oral dying declaration of 6th November and the other dying
D declaration of 11th November before a Magistrate and extra judicial
confessions made by the appellant before Panchayat on two different occasions.
On a question during the cross-examination that though the deceased was
admitted in the hospital on 12th September why it was only on 6th November
for the first time oral dying declaration is alleged to have been made by her
.E to her father, the answer given was that deceased remained unconscious
during this period. But the hospital bed head ticket EXT. D-11 revealed that
she was not unconscious for all this period rather she was conscious from
time to time and had regained consciousness. On these facts, the Trial Court
acquitted the accused. But High Court, on appeal, set aside the acquittal and
convicted the appellant for offence committed under Section 302. Hence this
F appeal

Allowing the appeal, the Court

HELD: 1.1 The dying declaration recorded by the Magistrate does not
G in any way help the prosecution. When admittedly at this point of time the
deceased was fully conscious, still she could not name any of the accused.
Sht: states, she could not recognise any one 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,
which is said to have been deposed by the deceased to her father PW-1, her
H uncle PW-3 and grandmother PW-5. The High Court seems to have taken
K. LAL v. ST ATE OF RAJASTHAN 519

great strain to believe the deposition of these witnesses. On examination of A
the testimony of these witnesses, there are serious discrepancies in their
testimony with reference to the dying declaration, apart from the fact that
they are closely related to the deceased being father, grand mother and
uncle. They made different statements with respect to the same declaration
made by the deceased to them. The trial court has in detail rightly recorded
such discrepancies and did not believe the story of other oral dying declaration. B
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, the deceased regained
consciousness on 6th November and when she gave the _first oral dying
declaration and named the accused therein. But in the second dying C
declaration made before the Magistrate she did not name any of the accused
even on specific question being asked by the Magistrate. (525-A-B-C-D-E]

1.2. On examination, these two dying declarations not only give two
conflicting versions but there are inter se discrepancies in the depositions
of the witnesses given in support of the dying declaration dated 6th November. b
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, there is no hesitation to hold that these two dying declarations do not
bring home the guilt of the appellant. High Court, therefore, erred in placing
reliance on it by erroneously evaluating them. [525-E-F[ E
1.3. 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 the dying declaration is only when person
making such statement is in hopeless condition expecting an imminent
death. So under the English Law for its admissibility, the declarant should F
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 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 G
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 H
520 SUPREME COURT REPORTS [1999) SU~P. I S.C.R.

A 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 stage while making declaration then within the sphere of the Indian Law,
while testing the credibility of such dying declarations weightage can be
given of course depending on other relevant facts and circumstances of the
B case. (525-G-H; 526-A-B-C]

1.4. In the present case the dying declaration was after two months of
the alleged incident. It was not at a time when the deceased was expecting
imminent death. Neither the post-mortem nor deposition of doctor carry any
definite infer~nce that the cause of death was on account of burning. There
C is a conflict between two dying declarations, in one there is inter se
inconsistency as revealed in the deposition of witnesses, in the other no
naming of any accused, when made before a Magistrate. On such evidence
the trial court rightly declined to base a conviction. The high Court committed
error in placing reliance on it. (527-A-B]

D 2. Before a confession is relied on, it must be clear and unequivocal,
whether it is in judicial or in a extra judicial confession. 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. The father's testimony in cross-
examination when confronted with his statement in Ex.D-2 (made by him
E during the enquiry made under Section 202 CrPC, 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 number of persons were referred as confessing their guilt,
including the appellant. It included the names of those who are not even
accused. It is alleged that they sought for the pardon of the local leaders for
F this guilt. Even in this alleged confession, there is no m(lntion that the
accused had burnt the deceased. The alleged confession by large number of
persons is more in a general and vague term. In view of these facts, there
is 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
G High Court very casually accepted it which cannot be sustained.
(525-C-D-E-Fl

3.1. 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
H itself. The prosecution has not examined the Investigating Officer. Prosecution
K. LAL v. STATE OF RAJASTHAN [A.P. MISRA, J.] 521
has not thus proved the guilt of the appellant !>y any cogent evidence. A
[527-G-H]

3.2. In this background, the High Court has committed an error by
setting aside the acquittal of the appellant by convicting him under Section
302 IPC, as the findings recorded by the trial court were based on proper
appreciation of evidence on record. [528-A] B
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
156of1998.

From the Judgment and Order dated 29.8.97 of the Rajasthan High Court
in D.B.Crl. A.No.319 of 1993. C
U.R. Lalit, Sushi! Kr. Jain, A.P. Dhamija, Umesh Bohre and Ms.' Anjali
Doshi for the Appellant.

Ms. Sandhya Goswami for the Respondent.

The Judgment of the Court was delivered by D
A.P. MISRA, J. The appellant, Kishan Lal, husband of deceased Smt.
Sulochana has filed this appeal against his conviction under Section 302 read
with Section 34 of the Indian Penal Code (hereinafter referred to as "l.P.C.")

The High Court convicted the appellant on an appeal filed by the State
against an order of acquittal passed by the Additional Sessions Judge. The E
brief facts are that Smt. Sulochana, according to the prosecution case, was
sleeping on the intervening night between I I th and 12th September, 1976 with
the mother of the appellant on a separate cot when she was burnt by sprinkling
kerosene oil on her chest. She was shifted to the hospital at Pilibanga at 2.00
a.m. Doctor of the hospital s~nt information to SHO Police Station Lekhuwali F
on which investigation 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. G
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 H
522 SUPREME COURT REPORTS [1999] SUPP. 1 S.C.R.

A by the Magistrate.
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 .
B not find any sustainable evidence against the appellant and other family
members mentioned in the complaint, hence submitted final report.

Thereafter, a complaint was filed by Chan du 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-
c 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, hi~ mother Poora, his father Banwari Lal and
his brother Om Prakash, but the Magistrate took cognizance only against the
appellant and his mother Smt. Poora under Section 302 read with Section 34,
D l.P.C.

,,- During trial, complainant produced 11 witnesses which included PW. I 0
Murarilal, Munsif and Judicial Magistrate (who recorded the statement of Smt.
Sulochana on 11th November, 1976) and PW. I I Dr. Sharad Chand Kalla (who <;
conducted the post-mortem examination on 16th November, 1976). It is
E 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, l976 itself in which police finally submitted final report.

The complainant relied strongly on two dying declarations, one oral
F
declaration, as aforesaid, dated 6th November, 1976 and the other I Ith
November, l 976 recorded by a Judicial Magistrate and extra judicial confessions
made by the appellant before Panchayat on two different occasions.

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,
G
1976 for the first time oral dying declaration is alleged to have been made by
her to her father, grand mother and uncle etc. The answer given is that she
remained unconscious during this period. The trial court disbelieved this fact
on the basis of the hospitals bed head ticket Ex.D. l l. It held, it reveals that
she was not unconscious for all this per~od rather she was conscious from
H time to time and had regained consciousness. '
K. LAL v. STATE OF RAJASTHAN [A.P. MISRA, J.] 523

Dealing with the oral dying declaration, the trial court held that the three A
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 fire 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 B
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 C
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.
D
The marriage of deceased Smt. Sulochana with. the appellant was held
on 17th July, 1975. There arose some dispute between her father Chandu 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 Rs. 5100 from her E
father. On the I 2th 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 I a.m. when Smt. Sulochna was sleeping with her mother-
in-law-Poora the accused persons poured kerosene oil on her and set her on
~ F
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 G
she indirectly named her husband and mother in law as the persons
who took part in her burning."

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 Chan du Lal PW. l, Shri Ram PW .3 and Mst. H
524 SUPREME COURT REPORTS [1999] SUPP. I S.C.R.

A Sajna PW.6 viz. the father, uncle and grandmother of the deceased. The High
Court further accepted the extra-judicial confession by believing the statements
ofChandu Lal PW.l, Ganesh Dutt PW.2, Shri Ram PW.3, Khubi Ram PW.4 and
Hans Raj PW.5. The High Court recorded that these witnesses have stated
before the Panchayat that in the one held in Rai Singh Nagar School, the
B 1 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.l, 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 PW.2
who was Pujari of the family of the deceased father. The High Court further
C 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.
/
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.
D Hence the case against her abated. Aggrieved by this judgment 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.

We have heard learned counsel for the parties. With reference to the
E 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 hereur~der :-
F
"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".

G 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:

H Due to the fire darkness came in my eyes, I became unconscious and
K. LAL v. STATE OF RAJASTHAN [A.P. MISRA, J.) 525

fell down and I could not recognise the lady and the gents standing A
there.

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 B
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 PW. I, her uncle
! PW.3 and grandmother PW.5. The High Court seems to have taken great
strain to believe the deposition of these witnesses. We have examined the C
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, grand 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 D
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 of E
November, 1976 made before a Magistrate she did not name any of the
accused even on specific question being asked by the Magistrate.

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 F
dated 6. l l. l 976. 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 home the guilt of the appellant. High Court, therefore,
erred in placing reliance on it by erroneously evaluating them. G

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 H
526 SUPREME COURT REPORTS [1999] SUPP. l S.C.R.

A 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
B 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,
C 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.
D
The incident is said to have taken place on the night of l lth 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 incident of burning. In this
light we proceed to examine the post-mortem report and the deposition of
'E
doctor Mr. Sharad Chand Kala P.W.11.

In the post-mortem report we find the doctor recorded that all her
organs to be healthy, namely, skull, brain, the spinal cord, ribs, larynx, trachea,
lungs, heart, liver spleen and kidney, etc. The cause of the death according
F to the doctor is syncope which is attributable to heart. This report does not
record even deep bums 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
G wounds of deep burn which I had not recorded in the post-mortem."

This is the state of medical evidence, which only records, the superficial
bums which had been cured and does not record any deep bum. On the basis
of this medical evidence how could any inference be drawn that cause of
death after more than two months of the incident was because of the bum
H injuries. This coupled with the evidence during this period, she gave birth to
K. LAL v. STATE OF RAJASTHAN [A.P. MISRA, J.] 527
a dead child and on her person a skin grafting was done. For this additional A
reason also no reliance can be placed on the said two dying declarations.

In the present case, as aforesaid the dying declaration was after two
months of the alleged incident. It was not at a time when the deceased was
expecting imminent death. Neither the post-mortem nor deposition of doctor B
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. C
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 D
Section 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 number of persons were referred to as to have confessed their
guilt, including the appellant. It includes even the names of those who are E
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 on, it must be clear aod unequivocal, whether
it is in a judicial or in an extra judicial confession. F

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.
G
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 proved the guilt of the appellant by any cogent evidence. H
528 SUPREME COURT REPORTS [1999] SUPP. 1 S.C.R.

A 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
Section 302 l.P.C. The findings recorded by the trial court were based on
proper evaluation and proper appreciation of evidence on record.

Accordingly, the present appeal of the appellant is allowed. His
B conviction and sentence under Section 302 read with section 34 IPC 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.

RK.S. Appeal allowed.