313. Power to examine the accused.

(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the court (a) May at any stage, without previously warning the accused put such questions to him as the court considers necessary; (b) Shall after the witnesses for the prosecution have been examined and before he is called on for his defence question him generally on the case: Provided that in a summons-case where the court has dispensed with the personal, attendance of the accused, it may also dispense with his examination under clause (b). (2) No oath shall be administered to the accused when he is examined under sub section (1). (3) The accused shall not re nder him self-liable to punishment by refusing to answer such question, or by giving false answers to them. (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he had committed.
281. Record of examination of accused.

(1) Whenever the accused is examined by a Metropolitan Magistrate, the Magistrate shall make a memorandum of the substance of the examination of the accused in the language of the court and such memorandum shall be signed by the Magistrate and shall form part of the record. (2) Whenever the accused is examined by any Magistrate other than a Metropolitan Magistrate, or by a Court of Session, the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full by the or other incapacity, under his direction and superintendence by an officer of the court appointed by him in this behalf. (3) The record shall, if practicable, be in the language in which the accused is examined or, if that is not practicable in the language of the court. (4) The record shall be shown or read to the accused, or, if he does not understand the language in which it is written, shall be interpreted to him in a language, which he understands, and he shall be at liberty to explain or add to his answers. (5) It shall thereafter be signed by the accused and by the Magistrate or presid ing Judge, who shall certify under his own hand that the examination was taken in his

presence and hearing and that the record contains a full and true account of the statement made by the accused. (6) Nothing in this section shall be deemed to apply to the examination of an accused person in the Course of a summary trial.
Judgments: Criminal Appeal No. 4(SH)/2000

THE GAUHATI HIGH COURT (High Court of Assam Nagaland Meghalaya Manipur Tripura Mizoram and Arunachal Pradesh) SHILLONG BENCH CRIMINAL APPEAL No 4(SH)/2000 The th day of March, 2001 PRESENT THE HONBLE MR JUSTICE AK PATNAIK Appellant: Shri Paul Khuma Darlong, Son of (L) Hruma Darlong, Resident of Kanchancherras, PS Fotick Roy, Dist- Kailashar, Tripura. By Advocates: Mr S Sen, Mr B Bhattacharjee, Respondent: The State of Meghalaya By Advocate: Mr BK Debroy, PP, Meghalaya. THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 31ST DAY OF AUGUST, 2000, THE COURT PASSED THE FOLLOWING: JUDGEMENT 1. This is an appeal under section 374 of the Code of Criminal Procedure, 1973 ( for short "the CrPC" ) from the judgment and order dtd 25.4.2000 of the Additional Deputy Commissioner, East Khasi Hills, Shillong in CR Case No 346(A)94 convicting the appellant for the offence of murder under section 302, IPC and sentencing him for ten years simple imprisonment and for a fine of Rs 2,500/ - only. 2. On 5.12.94, Mr AS Pyrbot, residing at Lumbasuk Lawjynriew,Nongthymmai, Shillong, lodged a written report with the Officer-in-charge of Nongthymmai Police Beat House, Shillong alleging the the appellant and his daughter have been residing as husband and wife in his house for the past few months and the appellant committed the crime of killing his daughter by cutting her throat in the early hours of the morning of 5.12.94 in the bed room and that the appellant after committing the crime left the room and escaped from the house. An inquest was carried out over the dead body of the deceased

and a post mortem was done. Some articles were seized. A case was registered under section 302,IPC and SI J Swer was entrusted the investigation of the case by the Officer in-charge of Ryngah PS, Shillong on 5.12.94. A message was sent to Tripura Police for arrest of the appellant and the appellant was arrested from Gurkha Bosti under West Agartala PS and was forwarded to the Court of the learned Chief Judicial Magistrate, Agartala. The appellant was thereafter produced before the Court of the learned Additional Deputy Commissioner, Shillong on 21.12.94 and was kept in police custody for some days. On 2.1.95, he was produced before the Court of Smt D Dyiem, Magistrate for recording his confessional statement, but the learned Magistrate refused to record the confessional statements on 2.1.95 as the appellant had been brought before the Magistrate direct from police custody. The learned Magistrate instead directed that the appellant be produced from judicial custody and the appellant was remanded to judicial custody. On 3.1.95, the appellant was brought before the Magistrate from judicial custody for recording his confessional statement and his statement was recorded. Thereafter, investigation was completed and charge sheet filed by the police. On 20.7.97 the charge of murder under section 302,IPC was framed against the appellant by the Additional Deputy Commissioner, Shillong and at the trial six witnesses were examined on behalf of the prosecution. 3. The informant Mr AS pyrbot was examined as PW - 1. He stated that the appellant and his daughter (deceased) were living together in his residence as husband and wife. On 4.12.94, in the evening the appellant was in house and slept with the deceased in the same room. The deceased used to get up early in the morning, but on 5.12.94, she failed to get up. So he went to the room where she was sleeping and found that the door was bolted by a hook from inside. He knocked the door and when he got no reply he unlocked the door and he and his wife entered the room and found the dead body of the victim. His wife opened the blanket and quilt and found blood all over the bed linens and on the floor and they discovered that the throat of the deceased was cut. They also found a cloth stuffed inside her mouth. They pulled out the cloth from her mouth and discovered one big Khasi knife covered with blood lying undern eath the mattress. The door of the kitchen was unlocked for going outside. His wife fainted when she discovered that their daughter was murdered, but regained consciousness after he poured some water on her . He then went to the house of his brother-in-law to inform about the incident. He also went to report the matter to this elder daughter Risa Marbell Kharkongor. His other brother-in-law who was the headman came to his house and saw the dead body and then they all informed the police. 4. The wife of PW-1 and the mother of the deceased was also examined as PW-3 and she corroborated all that has been stated by PW - 1. PW- 3 stated that on 4.12.94 her daughter (deceased) and the appellant were both in the house. After dinner when PW -1 had not returned the deceased and the appellant entered the bed room. When PW-1 returned the deceased came out of her bed room to serve meal to him. Thereafter, the deceased sat with her and they watched the Television from 9.15 PM to 9.30 PM and then the deceased said that she was tired and retired to her room. On 5.12.94, in the early morning when she went to wake up the deceased and knocked the door, there was no response. She found that the door was bolted from out side. She and her husband opened the room and they found that the deceased was in the bed and was covered under a blanket and quilt. She removed the blanket covering her and found that the deceased was in a pool of blood. She fainted at the sight and her husband rushed and brought water to pour on her face. She rega ined consciousness and looked at her daughter again and found that a piece of cloth was stuffed deep into her mouth and throat. They checked the bed of the deceased again and discovered a Khasi knife under the mattress. PW- 3 further stated that on 3.12.94 in the morning the appellant was sharpening this very particular knife in the compound of the house and that the appellant used this knife frequently for doing various works.

5. The headman of Lawjynriew Nongthymmai, Shillong, has been examined as PW - 2. He stated that on 5.12.94, early in the morning Safty Kharkingeris son -in-law came to his residence and woke him up from bed and informed him that he was immediately needed in the house of his mother-in-law. He proceeded to her residence and when he entered the house of his mother-in-law he came to learn that the deceased was murdered. After seeing the dead body he immediately proceeded to the Officer-in-charge, Police Beat House, Nongthymmai, Shillong and narrated the incident to the police. The ASI at Nongthymmai Beat House who was on duty on 5.12.94 has been examined as PW - 4 and he stated that early in the morning at 6 AM on that day he was informed by PW - 2 that a murder had taken place at Lumbasuk Lawjynriew. He rushed to the spot and held inquest over the dead body. The inquest report is marked as Ext- 2 and his signature is marked as Ext- 2(1). He also stated that after the inquest, he sent the dead body to the Civil Hospital for post mortem. The forwarding report has been marked as Ext- 3 and Ext- 3(1) is his signature. He also stated that he seized some items listed in the seizure list. Ext- 5 is the seizure list and Ext- 5(1) is his signature. The SI who was posted at West Agartala PS in 1994 has been examined as PW - 5 and he has stated that on 14.12.94 a message was received from the Superintendent of Police, DIB, Kailashar, North Tripura, that the appellant was available at Gurkha Bosti under West Agartala PS and the Officer-in-charge of the West Agartala PS endorsed this case to him to arrest the appellant. He raided Gurkha Bosti and arrested the appellant and forwarded him to the Court of the learned Chief Judicial Magistrate, Agartala. The Officer-in-charge of Rynjah PS in the year 1994 has been examined as PW- 6 and he stated that on 5.12.94 he received the written FIR from PW- 1 through the Officer-in-charge, Nongthymmai Beat House, Shillong. Ext- 1 is the said FIR and Ext 1(2) was his signature. He also stated that he endorsed the case to SI JM Swer, i/c Nongthymmai Beat House to investigate the case and he has sent the message to Tripura PS to arrest the appellant on receiving the information that he fled away . 6. In the records of the trial court, I find a letter purportedly written by the appellant to the Chief Judicial Magistrate, Shillong, confessing the commission of the aforesaid crime. In the records of the trial court, I also find the confessional statement of the appellant recorded by the Magistrate on 3.1.95. The trial court held that there was no eye witness to the commission of the offence, but the circumstances unerringly point to the conclusion that the murder was committed by the appellant and none else. These circumstances have been summed up by the trial court as follows: i. ii. iii. an attempt by the accused to escape and his arrest after committing the murder at his home place at Agartala, Tripura, outside the State of Meghalaya. the kitchen from where the accused person escaped being fully corroborated by the prosecution witnesses No 1 and 3, respectively. admittedly, the accused person on his own version by way of the letter of confessional dispatched from his home place, Agartala, Tripura, by way of a speed post, the contents as contained therein fully corroborated by the accused person when his confessional statement recorded by the recording Magistrate under 164, CrPc. the marriage between the accused person and the deceased victim being admittedly confirmed by the accused person himself and the same fully corroborated by the prosecution witnesses more so, the defence counsel never challenged the same at the time of trial. the acts of the accused person of disappearing from Shillong on the 5th morning of 1994 and not returning back till the accused person was apprehended at his home place at Agartala, Tripura on 14.1.95. The occurrence has happened in the woe hours when nobody else could have had ingress at the place( bedroom) where the incident allegedly occurred.

iv.

v.

vi.

vii.

viii.

ix.

the relation between the deceased and the accused started becoming strained. This is evident from the version of the accused person himself when he states: "I saw my wife going around with one man. I asked her and one day she told me that it was the staff from her office.her friend from the bank did not come as arranged." the letter written by the accused person which show the callous and cruel nature on being fully corroborated by the accused in his statement recorded by the recording Magistrate as to how he cut the deceaseds throat, so also, the findings and opinion of the Doctor supported to the fact that the deceased vi ctim did of injuries of the jugular vessels: besides that the total cut wound in the neck of the deceased victim and the positive opinion of the Doctor that the cause of death was due to shock and haemorrhage due to injury of jugular vessels, it was a clear case of murder and not suicidal death.".

7. Mr S Sen and Mr B Bhattacharjee, learned counsel for the appellant, submitted that the letter to the Chief Judicial Magistrate had not been proved to have been written by the appellant nor exhibited in court and trial court took judicial notice of the said letter and treated the same as a confession by the appellant. They argued that the court could not take judicial notice of the said letter under section 57 of the Evidence Act. They further contended that the said letter dated 13.12.94 was also not listed in the list of documents relied on by the prosecution under section 294, CrPC, and in the examination of the appellant under section 313, CrPC, no question was put to the appellant regarding the said letter . Yet, reliance has been placed on the said letter by the trial court for convicting the appellant. Mr BK Debroy, learned PP, Meghalaya, on the other hand, submitted that the said letter was received in the court of the learned Chief Judicial Magistrate , Shillong and was part of the record and for this reason, the trial court has relied on the same and if the case is remanded to the trial court the said letter can be proved and exhibited. 8. On a perusal of the impugned judgement of the trial court, I find that the aforesaid letter purported to have been written by the appellant has been exhibited and has been treated by the trial court as a confession of the crime by the appellant. Sections 24 to 30 of the Evidence Act deal with the admissibility of confession by the accused person in criminal cases, but the expression "confession" is not defined in the Evidence Act. In Narayanswami Vs Emperor, AIR 1939 PC 47, the judicial Committee defined confession as " a statement made by the accused " which must either admit in terms the offence , or at any rate substantially all the facts which constitute the offence. Thus to treat the statements in the letter dated 13.12.94 as confession by the appellant it must be proved that the statements in the letter had been made by the appellant and no one else. There is no evidence whatsoever adduced by the prosecution that the statements in the letter had been made by the appellant. No witness has been examined on behalf of the prosecution to show that the statements in the said letter were made by none other than the appellant. There is also no evidence whatsoever adduced by the prosecution to prove that the signature at the bottom of the statements in the said letter were that of the appellant. Therefore, the trial court could not have treated the statements in the said letter as confession made by the appellant. The said letter though not marked as exhibited is part of the record and on the body of the said letter, the Additional Deputy Commissioner has stated that she has taken judicial notice of the statements in the letter. Judicial notice can be taken by the Court only of the facts stated in section 57 of the Evidence Act and a statement by the accused has not been included in the list of facts given in section 57. The learned trial court committed a grave error of law in taking judicial notice of the confession made by the appellant in the said letter. I am also not inclined to remand the case to the trial court to give opportunity to the prosecution to

lead evidence at this stage to prove that the said letter was written and signed by the accused appellant because I find from the judgement of the trial court that the said letter was sent to the prosecuting Inspector on 16.12.94. If the prosecution wanted to rely on the said letter, it could have examined witnesses and proved in course of trial that the letter was written or signed by none other than the the appellant. 9. It was next submitted by Mr Sen and Mr Bhattacharjee that the trial court has also relied on the confessional statement of the appellant recorded under section 164, CrPC, by the Magistrate on 3.1.95 for convicting the appellant but the Magistrate who recorded the statement has not been examined as a witness nor has the said statement been marked as an exhibit. They cited the decision of the Division Bench of this Court in Tapan Kr Das Vs State of Assam, 1998 (1) GLR 336, in which it has been held that the prosecution is under legal obligation to get the statement under section 164, CrPC, exhibited after summoning the concerned Magistrate and the court of Sessions is also not absolved of its duty to record such a statement of an important witness. Mr Sen and Mr Bhatacharjee submitted that no searching enquiry was made by the Magistrate as to whether the appellant made the statement voluntarily or not. They further argued that the appellant had remained in judicial custody for less than 24 hours before he made the statement and did not have sufficient time for reflection before his statement was recorded. They submitted that the appellant was also left with a police constable before his statement was recorded and thus his statement was not voluntary. Further, no certificate was signed by the Magistrate as required under sub-section (4) of section 164, CrPC. Accordin g to them the confessional statement recorded under section 164, CrPC, suffered from the aforesaid irregularities and could not be relied on by the trial court for convicting the appellant. In support of these submission, they relied on the decisions of the Supreme Court in Shivappa Vs State of Karnataka, AIR 1995 SC 980 and Preetam Vs State pf MP, AIR 1997 SC 445, and the decision the Orissa High Court in Ganesh Prasad Singh Vs State of Orissa, 1989 Crl. LJ 1345. Mr Debroy, on the other hand, submitted that under section 80 of the Evidence Act, the court could presume that the confession was made by the appellant before the Magistrate and the certificate signed by the Magistrate indicated that the confession had been made by the appellant voluntarily. He submitted that it was not necessary for the prosecution to summon the Magistrate recording a statement of confession under section 164, CrPC. He also submitted that the confession of the appellant recorded under section 164, CrPC, by the Magistrate was part of the records of the trial court but the same had not been marked as exhibit nut this formal defect and other irregularities, if any, in the recording of the statement of confession under section 164, CrPC, will not stand in the way of the court relying on such statement of confession if the court finds that such irregularities have not prejudiced the appellant in any manner. In support of this submission Mr Debroy relied on the provisions of sections 463, CrPC. 10. Mr Debroy rightly submitted that it is n ot necessary for the prosecution to examine the Magistrate to prove a confession of an accused recorded under section 164, CrPC, and the Court can presume genuineness of any recording of such confession by a Magistrate under section 80 of the Evidence Act. In Madi Ganga Vs State of Orissa, AIR 1981 SC 1165, a contention was raised that the confessional statement of the accused recorded by the Magistrate should have been excluded from the evidence as the Magistrate was not examined to prove it. But the Supre me Court rejected the said contention and held that section 80 of the Evidence Act makes the examination of a Magistrate unnecessary as it authorizes the court to presume that the document is genuine, that any statement as to the circumstances under which it was taken are true and that such confession was truly taken in accordance with law. But the Supreme Court found in that case that the Magistrate had put to the accused all necessary questions to satisfy himself that the confession was voluntary and he had also appended the necessary certificate and no such situation had been brought in the evidence justifying the examination of the Magistrate as witness. Sub -sections (2) and (4) of section 164,CrPC, are quoted herein below:

"(2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him, and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily. (4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect : "I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that the confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him." . Sub-section (2) of section 164, CrPC, quoted above would show that before recording a confession, the Magistrate has to explain to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him. In the present case , it appears from para- 5 of the ceretificate signed by the Magistrate in respect of the confession of the appellant recorded on 3.1.95 that she had explained to the appellant that he was not bound to make any confession and that if he did so it might be used as evidence against him. Hence the first part of sub-section (2) of section 164, CrPC, had been complied with by the Magistrate. But the second part of sub -section (2) of section 164, CrPC provided that the Magistrate shall not r ecord any such confession unless upon questioning the person making it he has reason to believe that it is being made voluntarily. Thus, the Magistrate is required to put some questions to the person making the confession to find out whether it is being made voluntarily. In the present case, from a reading of the entire confessional statement recorded on 5.1.95 by the Magistrate I find no question was put by the Magistrate to the appellant to satisfy herself that the confession was made by the appellant voluntarily. Hence the second part of sub-ection (2) of section 164, CrPC, has not be complied with by the Magistrate while recording the confession of the appellant on 3.1.95. In Shivappa Vs State of Karnataka (supra), the Supreme Court held that the failure of the Magistrate to put such question from which he could ascertain the voluntary nature of the confession detracts so materially from the value of the evidence that it would not be safe to act upon the same. Similarly, in Preetam Vs State of MP (supra), the Supreme Court found from the confessional statement in that case that the Magistrate had told the person giving confessional statement that he was not bound to make any confession and if he did so it might be used against him but the Magistrate had not put question to him to satisfy himself that the confession was voluntary so as to enabling him to give requisite certificate under sub-section (4) of section 164, CrPC, and the Supreme Court held that the High Court was not at all justified in entertaini ng the evidence as a piece of evidence which was less reliable one. Sub-section (4) of section 164, CrPC, provides that the Magistrate shall sign a certificate at the foot of the confessional statement, inter alia, that he believed the confession was voluntarily made. But second part of sub-section (2) of section 164, CrPC, provided that he will have such reason to believe that the confession has been made voluntarily only upon questioning the person making it. Thus unless the Magistrate puts question to the person making the confession to find out that the confession was being made voluntarily, he cannot sign the certificate under subsection (4) of section 164, CrPC. Since in the present case the Magistrate before recording the confession of the appellant on 3.1.95 has not put questions to the appellant to satisfy herself that the confession was being made voluntarily, she could not have signed the certificate to the effect that she believe that the confession was voluntarily made. As a matter of fact, the Magistrate has also not signed the said

certificate in the confessional statement of the appellant recorded on 5.1.95. These defects which cast serious doubts as to whether the confession made by the appellant on 5.1.95 before the Magistrate was voluntary or not, if it allowed to be rectified at this stage will substantially prejudice the defence of the appellant. Section 463, CrPC, makes it clear that the provisions of this section can be invoked by the court only if it is satisfied that non-compliance of the provisions of section 164, CrPC, or section 281, CrPC, have not injured the defence of the accused on the merits. The said section 463, CrPC will not apply to a case where the non-compliance of the provisions of section 164, CrPC, creates doubts in the mind of the court that the confession recorded under section 164, CrPC, was voluntary in nature. In my considered opinion, therefore, the trial court should have excluded from its consideration the confessional statement of the appellant recorded under section 164, CrPC on 3.1.95. 11. Mr Sen and Mr Bhattacharjee next submitted that the prosecution has failed to establish that the death of the deceased was homicidal in nature inasmuch as neither the post mortem report has been exhibited nor the Doctor who examined the body of the deceased and prepared the post mortem report been examined as witness. They cited the decision of this Court in Jeno Modi Vs State of Assam, 1994 (1) GLR 398, for the proposition that the fact of homicidal death has to be proved by the prosecution to establish the offence of murder. They also relied on the decision of the Division Bench in Dhirai @ Dhirendra Das Vs State of Tripura, 1998 (2) GLR 334, in which it has been held that the opinion of the experts such as the Doctor who has submitted the post mortem report is to be proved orally by examining the Doctor in Court so that the accused person has an opportunity to cross-examine the Doctor. Mr Sen and Mr Bhattacharjee contended that although a Khasi Knife, a piece of cloth and a b ed cover with blood were seized on 5.12.94 soon after the incident, the said seized articles have not been subjected to any expert examination. They relied on the decision of the Division Bench of this Court in Nazir Ahmed Vs State of Assam, 1996 (3) GLR 27, wherein the Division Bench has held that seizure of articles particularly weapons and blood strain clothes is not a mere formality and its importance must be realized by the investigating agency and such articles must be as a rule further be subjected to expert/chemical examination. Mr Debroy, PP, Meghalaya, on the other hand, realizing the weakness of the prosecution case on this point submitted that this is a fit case for retrial in the interest of justice under section 482, CrPc. 12. On a perusal of the records of the trial court as well as the impugned judgement of the trial court, I find that no explanation whatsoever has been furnished as to why the Doctor who prepared the post mortem report has not been examined as witness. Although he was not examined in the court as a prosecution witness, the trial court has relied on the findings and opinion of the Doctor as one of the circumstances establishing the offence of murder by the appellant. As has been held by the Division Bench of this Court in Dhirai @ Dhirendra Das Vs State of Tripura (supra), the criminal justice system requires that no evidence of a witness can be relied upon against an accused person unless he has been given an opportunity of cross-examining the witness. Moreover, the veracity of whatever a witness states can be only tested in cross-examination and this will equally apply to the opinion of a Doctor. Hence findings and opinion of the Doctor who examined the dead body of the deceased and submitted the post mortem report could not have been relied on by the trial court as the Doctor was not at all examined as a witness and the appellant did not get any opportunity to cross -examine him. Further the investigating officer has also not been examined and no explanation at all has been furnished by the prosecution as to why the seized articles and in particular the Khasi knife with which the murder is alleged to have been committed by the appellant was not subjected to expert examination to find out whether it contained any finger prints of t he appellant. It appears that after the confessional statement of the appellant was recorded by the Magistrate on 5.1.95, the investigating agency has not investigated the case seriously and has taken for granted that the appellant had committed the offence and would be successfully prosecuted and punished in the court of law. It was the duty of the

investigating agency to have investigated the case with all seriousness and subjected the seized articles to expert examination irrespective of whether the appellant had confessed the commission of the offence of murder or not. 13. After excluding the confessional statement in the letter to the Chief Judicial Magistrate, Shillong, the confessional statement recorded by the Magistrate on 5.1.95 and the opinion of the Doctor in the post mortem report, the following circumstances appear to have been established by the prosecution through PW -1, PW-3 and PW-5 : i) The appellant and the deceased were living together in the residence of PW1 as husband and wife. ii) On the night of 4.12.94, the appellant and the deceased slept in the same room in the house of the PW- 1. iii) In the morning of 5.12.94, the deceased was found lying dead in her bed in a pool of blood and a piece of cloth stuffed in side her mouth and the linen of the bed was full of blood and the throat of the deceased was cut. iv) One Khasi knife was lying underneath the mattress of the bed in which the deceased was sleeping and the Khasi knife was being used by the appellant to do different work. v) The room in which the deceased was lying dead was bolted from outside and the door of the kitchen was also unhooked for going outside. vi) The appellant was not available in the room and had fled from Shillong and was arrested from Gurkha bosti in Agartala, Tripura. The aforesaid chain of circumstances are not complete so as to rule out the innocence of appellant. There was no evidence of Doctor to show as to how exactly the death of the deceased was caused. There was also no circumstantial evidence to show that the Khasi knife was used by none other than the appellant for cutting the throat of the deceased . To be more precise, there was no evidence to link the appellant with the commission of the offence of murder of the deceased, although there were circumstances to raise a strong suspicion that the appellant had committed the murder of the deceased. 14. In Jaharlal Das Vs State of Orissa, AIR 1991 SC 1388, the Supreme Court considered at length its earlier decisions relating to the cases which rest on purely on circumstantial evidence and held: "It may not be necessary to refer to other decisions of this Court except to bear in mind a caution that in cases depending largely upon circumstantial evidence there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion however so strong cannot be allowed to take the place of proof. The Court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof. The court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused.". In the said case the prosecution had relied on the fo llowing circumstances: (a) the accused and the deceased were last seen together; (b) the accused attempted to flee away when he could be seen at his village by PW-1;

(c) the accused when questioned gave false explanation regarding the whereabouts of the deceased; (d) the accused pointed out the place where the dead body of the deceased was lying in side the paddy field; (e) there was injury on the genital and stains of blood on the wearing apparel and nail clippings of the accused. The Supreme Court considered each of the circumstances at length but finally held that in the absence of link to show the guilt of the accused, chain of circumstances get snapped and the other circumstances cannot in any manner establish the guilt of the accused beyond all reasonable doubts . The Supreme Court cautioned that the court has to be watchful to avoid the danger of allowing suspicion to take place of legal proof for some times unconsciously it may happen to be a short step between moral certainty and legal proof. Having so held, the Supreme Court gave the benefit of doubt to the accused in that case. 15. In Mulak Raj and State of Haryana, AIR 1996 SC 2868, the prosecution relied on the following circumstances to establish its case under section 302 read with 34, IPC, against the accused:- (a) motive, (b) extra-judicial confession of the accused Nos 1 and 2, (c ) subsequent conduct of the accused, (d) situation of the scene of offence. The Supreme Court dealt with each one of the circumstances in details, but finally held that the circumstantial evidence did not connect the accused or any of them with the crime. The Supreme Court in particular observed that howsoever strong the suspicion may be, it cannot take the place of proof and the High Court seems to have been swayed away by the unfortunate and untimely homicidal death of a young girl in the house hold of her father-in-law and the husband on the altar of dowry demand. The Supreme Court further observed that it was impossible on the state of evidence on record to bring home the offence under section 302 read with section 34,IPC, beyond the shadow of reasonable doubt to any of the accused and the High Court seems to have almost rendered a moral conviction against the accused rather than a legal one. 16. In the present case also the death of the deceased particularly in the circumstance in which her dead body was found on the morning of 5.12.94 was undoubtedly a tragic incident and whoever was guilty of having caused the said death was to be severely punished under law. But under our system of justice no one can be punished unless legal proof is adduced in a court of law to establish that he has committed the offence for which he has been charged. Suspicion howsoever strong does not amount to legal proof. In the absence of legal proof that the appellant had committed the offence under section 302 the court has no option but to give the benefit of doubt to the appellant. Accordingly, the conviction and sentence of the appellant under the impugned judgement and order dated 25.4.2000 of the trial court in GR Case No 346(A)/94 are set aside and the appellant shall be set at liberty forthwith, if he is not required in any other case. JUDGE