Sunil Tanti vs The State Of Assam
2022 Latest Caselaw 1590 Gua

                                                                            Page No.# 1/18

GAHC010212102019




                              THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : CRL.A(J)/76/2019

            SUNIL TANTI
            S/O. SRI JAGADISH TANTI, R/O. KHARJAN T.E. 14 NO. LINE, P.S. CHABUA,
            DIST. DIBRUGARH, ASSAM.


            VERSUS


            THE STATE OF ASSAM
            REP. BY PP, ASSAM.



Advocate for the Petitioner   : MR H GUPTA, AMICUS CURIAE

Advocate for the Respondent : PP, ASSAM

BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MRS. JUSTICE MALASRI NANDI

JUDGMENT & ORDER (CAV) Date : 12-05-2022

(Suman Shyam, J)

Heard Mr. H. Gupta, learned amicus curiae appearing for the appellant. We have

also heard Ms. S. Jahan, learned Addl. P.P. Assam appearing on behalf of the State.

2. This appeal is directed against the judgment dated 30-04-2019 passed by the Page No.# 2/18

learned Sessions Judge, Dibrugarh in Sessions Case No. 35/2018 whereby, the sole

appellant was convicted under Section 302 IPC for committing the murder of his wife

Naina Patnaik and sentenced to undergo rigorous imprisonment for life and also to pay

fine of Rs. 1,000/- with default stipulation.

3. The prosecution case, in a nutshell, is that on 20-10-2017, at around 04:00 p.m.

the accused had poured kerosene upon his wife Naina and set her on fire with the

intention to kill her. The victim had sustained 70% burn injury and after 6/7 days, she

succumbed to her injuries while receiving treatment in the hospital. On 20-10-2017, Sri

Satya Patnaik, i.e. the father of the victim had lodged an ejahar before the Officer-in-

Charge (O/C), Chabua Police Station reporting the incident with a request to investigate

the matter. In the said ejahar, it was mentioned that the accused had been torturing the

victim in various ways after a few days of their marriage and at around 04:30 p.m. on 20-

10-2017, following a quarrel between them, the accused had poured kerosene on the

person of his wife Naina and set her ablaze. Having learnt about the incident, they

immediately took Naina to Kharjan T.E. Hospital but the Doctor referred her to the Assam

Medical College & Hospital, Dibrugarh as she had sustained grievous injuries. Naina was

taken to the hospital in a critical condition.

4. On receipt of the ejahar dated 20-10-2017, Chabua P.S. Case No. 272/2017 was

registered under Section 307 IPC and the matter was entrusted to S.I. Tapan Das for

carrying out investigation. After 6/7 days of the occurrence, the victim succumbed to her

burn injuries at the Assam Medical College & Hospital (AMCH), Dibrugarh, as a result of

which, Section 302 IPC was added. After completing the investigation the Investigating Page No.# 3/18

Officer (I/O) had submitted charge-sheet against the accused. Based on the charge-sheet

the learned trial court had framed charge under Section 302 IPC against the accused. The

charge was read over and explained to him but since the accused had claimed innocence,

the matter went for trial.

5. The prosecution case is basically based on the dying declarations of the victim. In

order to bring home the charge, the prosecution has examined as many as 07 witnesses

including the Doctor (PW-7), who had conducted the postmortem examination on the

dead body and the I/O (PW-6), who had conducted the investigation. The prosecution has

also heavily relied upon the oral dying declarations of the victim brought on record by the

PWs- 2 and 5, i.e. the parents of the victim as well as the dying declaration recorded by

the I.O. i.e. PW-6 (Exhibit-4) so as to prove that it was none other than the accused who

had set the victim ablaze with the intention to kill her. After recording the evidence of the

prosecution witnesses the statement of the accused was recorded under Section 313

Cr.P.C. While denying all the incriminating circumstances put to him, the accused had also

stated that he did not set his wife ablaze and also did not know how his wife had caught

fire but when she screamed, he tried to save her. The defense side, however, did not

adduce any evidence. On conclusion of trial and on evaluation of the evidence brought on

record, the learned trial court had convicted the accused/ appellant under Section 302 IPC

and sentenced him as aforesaid.

6. By referring to the materials available on record, Mr. Gupta, learned amicus curiae

has argued that the oral dying declarations were brought on record by the PWs- 2 and 5

for the first time during recording of their evidence and hence, their testimonies on such Page No.# 4/18

count were not believable. Insofar as the dying declaration recorded by PW-6 is

concerned, here also, submits Mr. Gupta, there is no opinion of the Doctor certifying that

the victim was in a fit state of mind to make such a statement. Mr. Gupta has further

argued that neither any doctor nor Magistrate had recorded the dying declaration and

there is no explanation for not doing so. Contending that the dying declaration recorded

by the I/O (Ext-4) is too perfect to be true, the learned amicus curiae has argued that it

will be unsafe for the court to award a conviction only on the dying declarations without

there being any corroborating evidence available on record. In support of his above

arguments, Mr. Gupta has placed reliance on the decision of the Hon'ble Supreme Court

rendered in the case of Paparambaka Rosamma & Ors. Vs. State of A.P. reported in

(1999) 7 SCC 695.

7. As an alternative argument, the learned amicus curiae has submitted that even if it

is held that the accused was responsible for the death of his wife, even then, the

materials available on record clearly indicate that there was a quarrel between the

accused and his wife immediately before the occurrence. As such, it is evident that the

incident had taken place due to grave and sudden provocation and without any pre-

meditation on the part of the accused. He submits that there is nothing on record to show

that the accused had any intention to cause death to the deceased and therefore, his

conviction be converted into one under Section 304 Part-II of the IPC and a lesser

punishment be awarded to the accused. To support the above argument, Mr. Gupta has

placed reliance on two decisions of the Hon'ble Supreme Court rendered in the case of

B.N. Kavatakar & Anr. Vs. State of Karnataka , reported in 1994 Supp (1) SCC Page No.# 5/18

304 and Sayaji Hanmant Bankar Vs. State of Maharashtra , reported in (2011) 14

SCC 477 to contend that since the accused had suffered only 70% burn injury and the

death took place due to septicemia, that too, after 07 days in hospital, the present is a

case which would come within the fold of Exception IV of Section 300 of the IPC.

8. Responding to the above argument, Ms. Jahan, learned Addl. P.P. Assam submits

that the oral dying declaration of PWs- 2 and 5 finds due corroboration from the evidence

of PW-6. The PW-1 has also deposed that he had heard the victim saying that she was

set ablaze. Therefore, it could not be said that there is no corroborating evidence in

support of the dying declarations brought on record by the prosecution. The learned Addl.

P.P. Assam, however, submits that even if the dying declarations are ignored by this Court,

even then, the evidence brought on record clearly establishes all the links in the chain of

circumstances so as to prove that the incident took place inside the house of the accused

and he was present in the house at that point of time. She submits that the explanation

furnished by the accused while recording his statement under Section 313 Cr.P.C. does not

find support from the evidence on record and therefore, it is clear that the accused had

failed to offer any plausible explanation in discharge of his burden under Section 106 of

the Evidence Act. Under the circumstances, submits Ms. Jahan, the charge brought

against the accused under Section 302 IPC stands fully established by circumstantial

evidence. On such ground, the learned Addl. P.P. Assam has prayed for dismissing the

appeal.

9. We have considered the submission made by learned counsel for both the sides

and have also gone through the materials available on record. Let us now refer to the Page No.# 6/18

evidence brought on record by the prosecution.

10. PW-1 Sri Dilip Tanti is a neighbour of the accused and he has deposed that the

incident took place on 20-10-2017. After finishing work, when he went to the house of

Chandana Tanti, he had heard a commotion coming from the house of Sunil Tanti.

Hearing the commotion, people had assembled there and he also rushed to the spot and

saw that the people had broken the door and brought Naina out from the house. Sunil

was also inside and he was also brought out. Naina was burnt. People took her to the

hospital. Naina informed that she was set ablaze. Initially she was taken to the Garden

Hospital and thereafter, she was taken to the Assam Medical College & Hospital,

Dibrugarh. After 5/6 days Naina died. Her father Satya Patnaik had lodged ejahar. The

police had recorded his statement and seized one kerosene lamp from the house of the

accused vide seizure Exhibit- 1, which contains his signature. In his cross-examination,

PW-1 has deposed that he did not know as to how Naina had caught fire and who had set

her ablaze.

11. PW-2 Satya Patnaik is the father of the deceased and also the informant in this

case. PW-2 has deposed that on the day of the incident, he had heard commotion coming

from the house of the accused person. He went there and saw that the victim was in

flames and she was coming out of the house. The victim had informed that the accused

had set her in flames. He had asked the victim about the accused and then she informed

him that the accused was inside the house. PW-2 has stated that they opened the door

and brought the accused and thereafter, confronted him by asking as to why he has set

his daughter on fire, but the accused did not reply. Many people had gathered on the Page No.# 7/18

spot. He took the victim on his motorbike to the garden hospital and from there, she was

taken to the AMCH, Dibrugarh in an ambulance. Meanwhile, police arrived and he had

lodged the ejahar at the Police Station after admitting the victim in the Medical College &

Hospital. PW-2 has also confirmed that Exhibit-2 was the ejahar containing his signature

and the same was written by a lady from Chabua. He has stated that after one week the

victim had succumbed to her injuries. This witness has further deposed that the victim

had informed him that the accused person used to assault her and he did not allow her to

leave the house. On the relevant day, they had a fight and the accused had set her

ablaze. The police had seized one kerosene lamp which was lying in the house vide

seizure list Exhibit- 1, which contains his signature Exhibit-1(2). In his cross-examination,

PW-2 has stated that the incident took place on 20 th and on the same day, he had lodged

the ejahar. He did not know as to how the accused had set ablaze his daughter nor did he

know how his daughter was set in flames. This witness has also admitted that he had not

stated before the police that the accused had set his daughter ablaze.

12. Smti. Sanjana Tanti (PW-3) is a co-worker of the victim Naina Patnaik and she has

deposed that on the day of the occurrence, at about 02:00 p.m. while she was returning

home, she saw people gathering and asked as to what had happened. Then the people

told her that Naina Patnaik had sustained burn injury and she had been taken to the

hospital.

13. PW-4 Sri Mahanta Kumar is a co-villager of the accused. This witness has deposed

that the occurrence took place at about 03:00 p.m. He saw people gathering in a 'chariali'

of their village. He had also seen that people apprehended the accused. He asked them Page No.# 8/18

as to why they had apprehended the accused person and they replied that the accused

had set his wife on fire. Later on, police came and recorded his statement.

14. PW-5 Smti. Anshia Patnayak is the mother of the victim. She has deposed that on

the day of the occurrence, at about 03:00 p.m. she heard from the villagers that there

was a commotion in the house of the accused person. Then, she, along with her husband

went to the house of the accused and saw burn injuries on her daughter. She was outside

the house and the accused was inside the house. She asked her daughter as to how she

had sustained the burn injuries and her daughter told that her husband, i.e. the accused

had set her on fire. According to PW-5 her husband PW-2 was also with her when the

victim had told her so. Then, she along with her husband (PW-2), took the victim to the

garden hospital in a motorbike which belonged to a villager. In the garden hospital, the

doctor had asked her daughter as to how she had sustained burn injuries and the victim

had informed the doctor that her husband had set her on fire. Then the doctor had

informed the police about the incident. The police arrived and recorded her statement in

the garden hospital and thereafter, she was referred to the AMCH, Dibrugarh. The victim

was in AMCH, Dibrugarh for 07 days, where-after she had succumbed to her injuries.

Thereafter, her husband had lodged an ejahar reporting the incident. The police had

recorded her statement. The PW-5 has further stated that the victim has a daughter aged

about 1½ years.

15. PW-6, S.I. Tapan Das was the Police Officer who had conducted investigation in

connection with Chabua P.S. Case No. 272/2017. PW-6 has deposed that on 20-10-2017,

he was posted at Chabua Police Station as Sub-Inspector (S.I.). On that day, one Satya Page No.# 9/18

Patnaik had lodged a FIR in the Chabua Police Station which was registered as Chabua

P.S. Case No. 272/2017 under Section 307 IPC and he was asked to conduct investigation.

During the course of the investigation, he had gone to the place of occurrence, recorded

the statements of the witnesses, prepared a sketch map as shown by the informant. He

had also seized the kerosene lamp made of glass bottle from the house of the accused

vide seizure list Exhibit-1 and material Exhibit-1 is the kerosene lamp. Then he went to

the Kharjan Tea Estate Hospital where the victim was taken immediately after the incident

and recorded the statement of the witnesses present there. He had learnt that the victim

had been sent to the AMCH, Dibrugarh. He had recorded the statement of the victim

Naina at the Kharjan T.E. Hospital and Exhibit-4 is the said statement which he had

recorded on 21-10-2017, wherein, the victim had stated that the accused person had

poured kerosene on her body and set her ablaze. He was informed on 25-10-2017 by the

Borbari Outpost that the victim has succumbed to her injuries at the AMCH. PW-6 has

also deposed that when he went to the place of occurrence on 20-10-2017, he saw that

the accused was apprehended by the local villagers. He then brought the accused to the

Police Station, recorded his statement, arrested him and then forwarded him to the court

for judicial custody. Finding sufficient materials, against the accused, he had submitted

charge-sheet (Exhibit-5), which contains his signature Exhibit- 5(1). In his cross-

examination, PW-6 has admitted that he had not recorded the statement of the persons

named Sri Bipul Nanda and Sri Jyotish Patnayak whose houses had been shown as 'D' and

'E' in the sketch map because they were not present at that time. While recording the

statement of the victim, he had not asked the doctor regarding the state of mind of the Page No.# 10/18

victim and as to whether, she was capable of giving statement since the Doctor was not

present at that time.

16. Dr. Subhajyoti Deka (PW-7) was working as Associate Professor, Department of

Forensic Medicine, AMC, Dibrugarh on 26-10-2017 when the dead body of the deceased

Naina Patnaik was brought for postmortem examination. PW-7 has proved the

Postmortem Report Exhibit-6 as well as the Inquest Report by identifying his signature.

According to the evidence adduced by PW-7, the victim had suffered approximately 70%

burn injury. He has opined that the death of the victim is due to septicemia as a result of

burn comprising 70% of the total body surface area. The time since death was

approximately 18 to 24 hours. In his cross-examination, the PW-7 has stated that he had

detected only burn injury and he did not detect any other injuries.

17. From the evidence adduced by the prosecution side, it appears that the I/O PW-6

had recorded the statement of the victim on the next day of the incident, i.e. on 21-10-

2017.On that day, the victim was admitted as a patient in the AMCH, Dibrugarh. Since the

learned amicus curiae has vociferously assailed the dying declaration (Exhibit-4) recorded

by the I/O, we deem it appropriate to reproduce the statement of the victim recorded in

Exhibit-4 hereunder:

"My name and address are as mentioned above. I, Smti Naina Patnaik, earn my livelihood by working in the Tea Estate. My husband had married earlier and his first wife left him and since after our marriage, quarrel often took place between us and we have a 1 year old daughter. He always used to assault me under the influence of alcohol and on 20/10/2017 in the evening (though I do not remember the time) he assaulted me after consuming alcohol and quarrel took place between us with regard to financial crisis in the family and he beat me up with cane stick suspecting me of having an affair with other person. He set fire to me by pouring kerosene from the open lamp and since I sustained grievous injury, I was taken to Page No.# 11/18

nearby Kharjan Hospital but I was sent to Assam Medical College for treatment and at present, my condition is very critical."

18. The I/O (PW-6) had initially stated that he had recorded the statement of the

victim at the Tea Garden Hospital but later on he has deposed that the dying declaration

of the victim was recorded by him on 21-10-2017. The said position is reflected from

Exhibit- 4 itself. From the evidence available on record, it also transpires that the victim

was shifted to the AMCH, Dibrugarh on 20-10-2017 and therefore, the I/O had recorded

her statement when she was admitted in the AMCH.

19. It is to be noted herein that AMCH is a Medical College Hospital located in a busy

district head quarter of Assam. Therefore, there can hardly be any doubt about the fact

that in a busy hospital of this nature, large number of doctors and medical attendants

would be on duty round the clock. Likewise in a major district head quarter such as

Dibrugarh, it is not possible to believe that there would not be a single Magistrate on duty

at any given point of time. Notwithstanding the same, there were neither any medical

personnel nor any Magistrate present while recording the statement of the victim. There

is also no plausible explanation by the I/O (PW-6) as to why a Magistrate or a doctor

could not have been called while recording the statement of the victim. There is no

doctor's certificate available on record to show that the victim was not only conscious but

also in a fit state of mind at the time of recording the dying declaration. Although, the

victim was alive and receiving treatment at the AMCH for almost six days after the

incident, there is no explanation as to why no attempt was made to record her dying

declaration by a Magistrate after obtaining Medical Certificate. On a careful reading of Ext-

Page No.# 12/18

4 we also find that the same appears to be little too perfect to be true.

20. In the case of Paparambaka Rosamma & Ors. (Supra) relied upon by the

learned amicus it has been held that in the absence of medical certification to show that

the injured was in a fit state of mind at the time of making the declaration, it would be

very risky to accept the subjective satisfaction of a Magistrate who opined that the victim

was in a fit state of mind at the time of making the declaration. That was a case where

the victim had suffered 90% burn injury and the dying declaration was not only recoded

by a Magistrate but the Medical Officer had also certified at the end of the declaration

that the patient was conscious while recording her dying declaration. In that case also the

prosecution story was based on the dying declaration of the victim. However, the Apex

Court had observed that it would be unsafe to convict the accused based on such oral

dying declaration.

21. Insofar as the oral dying declarations brought on record by the PWs- 2 and 5, we

find that they had not stated before the I/O regarding the oral dying declarations.

However, both these witnesses had deposed before the court for the first time mentioning

about the dying declaration of the victim. According to their deposition, PWs- 2 and 5 had

reached the place of occurrence together. However, it appears that there is substantial

variance in their version insofar as the dying declaration is concerned. PW-2 has stated

that on reaching there, he saw that the victim was in flames and she was coming out of

the house. It was at that time the victim had told him that the accused had set her on

fire. PW-5 on the other hand had stated that on reaching the place of occurrence she had

found her daughter outside the house and the accused was inside the house. On being Page No.# 13/18

asked, her daughter had told that the accused had set her on fire.

22. PW- 1 is the only other witness who had projected a dying declaration of the victim

but he did not say so before the I/O while recording his statement under Section 161

Cr.P.C. This witness had also not stated before the court that the victim had named the

accused as the person who had set her on fire. Moreover, according to PW-1, when he

went to the place of occurrence, he had seen that people had assembled in the house of

the accused. They broke open the door and brought Naina and accused out of the house.

Naina was burnt and people took her to the hospital. PW-1, however, did not mention

about the presence of PWs- 2 and 5 at the place of occurrence. If the testimonies of PWs-

1, 2 and 5 are read in conjunction, then substantial doubt would arise as to whether PWs-

2 and 5 had reached the place of occurrence soon after Naina was taken out of the house

in a burnt condition and had actually heard her speak about the accused having set her

on fire.

23. It is to be noted here-in that evidence available on record suggests that hearing

the commotion, a number of people had gathered in the house of the accused soon after

the incident and brought Naina out of the house in a burnt condition and later on they,

took her to the hospital. But none of those persons had heard the victim make any dying

declaration implicating the accused.

24. According to PWs- 2 and 5 the victim had told the T.E. doctor that her husband had

set her on fire. Therefore, the T.E. doctor would have been the best independent witness

to bring on record the dying declaration of the victim. However, for reasons not

discernable from the materials on record, the T.E. doctor was not examined as a witness.

Page No.# 14/18

25. PWs- 2 and 5 being the parents of the victim, they can be seen as interested

witnesses in this case and therefore, their evidence has to scanned by the court very

cautiously. From a careful analysis of the materials available on record, we find that there

is also an element of doubt as regards the voluntariness and truthfulness of the dying

declarations. Therefore, having regard to the facts and circumstances of the case as well

as the nature of evidence brought on record, the dying declarations relied upon by the

prosecution for conviction of the accused does not inspire the confidence of this court.

26. It is no doubt correct that the evidence brought on record by the prosecution

clearly establishes the date, time and place of occurrence. From the evidence brought on

record, it is also established that the victim had caught fire inside her house and at that

time, the accused was also present in the house. There cannot be any quarrel with the

proposition that in a case of this nature, where the incident has happened inside the

house and behind the close doors, there would be a burden upon the accused under

Section 106 of the Evidence Act to offer plausible explanation as to the circumstances

under which the victim had caught fire. However, that by itself would not relieve the

prosecution of the burden to establish the charge brought against the accused beyond

reasonable doubt by adducing cogent evidence.

27. The above issue fell for consideration of the Supreme Court in the case of

Trimukh Maroti Kirkan Vs. State of Maharashtra reported in (2006) 10 SCC 681

wherein, it was observed that the burden of the prosecution to prima facie establish the

charge brought against the accused would never shift even in cases where the crime is

committed in secrecy, inside the confines of a house but in view of Section 106 of the Page No.# 15/18

Evidence Act, it would merely lessen the burden upon the prosecution. The relevant

observations in paragraph 15 of the said decision is reproduced here-in-below for ready

reference:

"15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."

28. In the instant case, there is no doubt about the fact that a burden was cast upon

the accused under Section 106 of the Evidence Act to offer an explanation as to how the

deceased had caught fire. However, it cannot be said that the accused had failed to offer

any plausible explanation. Rather, as noted above, in his statement recorded under

Section 313 Cr.P.C. the accused has not only denied his involvement but has also stated

that when he heard his wife scream, he tried to save her and had also doused the fire but

her clothes had caught fire. In the fact and circumstance of the case it cannot, therefore,

be said that the explanation offered by the accused was totally improbable. The learned

trial court had rejected the defense of the accused by holding that the same was untrue.

However, the reason for arriving at such a conclusion has not been recorded by the

learned trial court in any detail.

29. In the case of Reena Hazarika Vs. The State of Assam reported in (2019) 13 Page No.# 16/18

SCC 289, the Hon'ble Supreme Court has held that Section 313 Cr.P.C. confers a valuable

right upon an accused to establish his innocence. While highlighting the importance of

this right, the Apex Court has observed that the court would have a duty to consider the

defense of the accused and failure to consider the defense taken under Section 313

Cr.P.C., in the facts of a case, may even vitiate the conviction. As noted above, a perusal

of the impugned judgment goes to show that the learned trial court has not recorded

proper and sufficient reason for rejecting the explanation furnished by the accused under

Section 313 Cr.P.C.

30. The Supreme Court has, in a number of judicial pronouncements, cautioned that

the Court must be careful in awarding conviction solely on the basis of dying declaration.

The said issue has been adequately dealt with in Paparambaka Rosamma (Supra). In

the case of Arun Bhanudas Pawar Vs. State of Maharashtra reported in (2008) 11

SCC 232 the Hon'ble Supreme Court has observed that oral dying declaration made the

deceased ought to be treated with care and caution since the maker of the statement

cannot be subjected to any cross-examination. Likewise, in State of Rajasthan Vs.

Lichman & Anr. reported in (2014) 12 SCC 670, it has been observed that oral dying

declaration can form the basis of conviction if the deponent is found to be in a fit

condition to make the declaration and if it is found to be truthful. The court must, as a

matter of prudence, look for corroboration of oral dying declaration.

31. After a careful analysis of the evidence brought on record, we are of the

considered opinion that although it is probable that the accused, in a state of inebriation,

might have had an altercation with his wife, where-after she, in all probability, was set Page No.# 17/18

ablaze by the accused by pouring kerosene oil. However, in criminal law jurisprudence,

suspicion cannot take the place of proof. Unless the prosecution succeeds in establishing

the charge beyond reasonable doubt by adducing cogent evidence, conviction for an

offence punishable under Section 302 of the IPC cannot be sustained in the eye of law.

The failure on the part of the prosecution to examine the relevant witnesses and record a

dying declaration by observing the requirement of law raises a serious doubt on the

prosecution story. We are, therefore, inclined to hold that the prosecution has failed to

establish the chain of circumstances so as to prove the guilt of the accused beyond

reasonable doubt.

32. For the reasons stated hereinabove, we hold that the accused is entitled to

acquittal on benefit of doubt.

Ordered accordingly.

Since we have already held that the charge brought against the appellant under

Section 302 IPC cannot be proved beyond reasonable doubt, it would no longer be

necessary for this Court to consider the alternative argument of conversion of conviction

made by the learned amicus curiae.

We are informed that the accused is presently in jail. As such, he be forthwith

released from jail, if his detention is not required in connection with any other case.

Send back the LCR.

Before parting with the record, we wish to put our appreciation on record as regard

the assistance rendered by the learned amicus curiae Mr. H. Gupta and direct the Registry Page No.# 18/18

to pay just remuneration to him as per the notified rate.

                                   JUDGE                    JUDGE
GS




Comparing Assistant