Judgment

SEN

( 1 ) THESE two appeals by special leave are directed against the judgment and order passed by the High Court of Himachal Pradesh dated 7/12/1976. First of these is filed by Smt. Basanti against the judgment of the High Court upholding the judgment and sentence passed by the Sessions Judge, Solan convicting her under Ss. 302 and 201 both read with S. 34 of the Indian Penal Code, 1860 for having committed the murder of her husband Prabhu Ram in furtherance of the common intention of both i. e. herself and the co-accused Assoo @ Aso Ram, her paramour. The second of these is preferred by the State Government against the judgment of the High Court acquitting the co-accused Assoo @ Aso Ram of both these charges. This is a case of strange infatuation. According to the prosecution case the deceased Prabhu Ram, aged about 40 years was married to the appellant Smt. Basanti, a woman aged about 47 years. It is alleged that the co-accused Assoo @ Aso Ram aged about 70 years, who was a servant of the deceased, was her paramour and having an affair with her. The prosecution has led evidence showing that the deceased Prabhu Ram intended to take a second wife and therefore both the accused conspired to commit his murder by striking a blow on the neck while he was asleep in furtherance of their common intention and caused disappearance of the dead body by concealing it in a maize field behind the cattle shed of the house of the deceased.

( 2 ) AFTER hearing learned counsel for the parties, we are satisfied that the judgment of the High Court does not call for any interference. The High Court was right in coming to the conclusion that there was no reliable and admissible evidence to convict the respondent Assoo @ Aso Ram of the charge under S. 302 read with S. 34 of having committed the murder of the deceased Prabhu Ram in furtherance of the common intention with the accused, or of the charge under S. 201 read with S. 34 of having caused the disappearance of the evidence. There is no direct evidence. The prosecution rests on circumstantial evidence. It relied upon two circumstances, namely, (1) the extra-judicial confession of the appellant Smt. Basanti and (2) the statement (Exh. PX/3) made by her under S. 27 of the Evidence Act, 1872 leading to the recovery of a pair of bloodstained shoes, dupatta etc. The High Court rightly observed that the extra-judicial confession of the co-accused Smt. Basanti could not be used against the respondent Assoo @ Aso Ram. It was also right in observing that the alleged discovery by him of a pair of shoes and a dupatta under S. 27 of the Evidence Act was inconclusive as they were in no way connected with the commission of the alleged offences. There is nothing to show that the incriminating articles belonged to the deceased. Learned counsel for the State Government is unable to explain how the pair of shoes could be stained with human blood, the prosecution case being that the deceased was murdered while he was asleep in bed. He is also unable to explain how the recovery of the dupatta is an incriminating circumstance. We must observe that there strong suspicion that the respondent Assoo @ Aso Ram might have participated in the commission of the alleged offences, but suspicion cannot take the place of proof. According to the prosecution, the appellant Smt. Basanti and the co-accused Assoo @ Aso Ram entered into a criminal conspiracy to commit the murder of the deceased Prabhu Ram as he wanted to take another wife. In view of the fact that there is no evidence to connect the respondent Assoo @ Aso Ram with the commission of the alleged offences, the State appeal against his acquittal must therefore fail and is dismissed.

( 3 ) AS to the appeal preferred by the appellant Smt. Basanti, we have no doubt that no interference with the judgment is warranted. It has been established by the prosecution witnesses beyond all reasonable doubt that the deceased Prabhu Ram was murdered in his bedroom by a blow wi