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2014 (9) TMI 1151 - CALCUTTA HIGH COURTTermination of pregnancy - abortion resulting to death - Rape Offence - legality of evidences - Section 10 of the Evidence Act - Held that: - there must be prima facie evidence to give rise to reasonable believe that conspiracy existed between the accused persons in the first place before any act done or said by a conspirator would bind the other. Secondly, such act must be done or words spoken by the conspirator in the course of conspiracy and not after the same had been snapped, e.g., a conspirator having been caught and is in the custody of the police. No charge of conspiracy has been framed against the appellant. Even if such charge is presumed (as he is charged with the substantive offence while others having been charged with conspiracy to commit such offence) there is absolutely no independent evidence on record (except the purported aforesaid statement of the other accused persons) to show that the appellant had met the other accused persons or there was any agreement halted amongst them and the appellant to commit the crime. In the absence of such evidence it cannot be said that the first condition, namely, there are reasons to believe that there was a conspiracy between the appellant and other accused persons is established. In the instant case as prosecution had failed to establish prima facie existence of conspiracy between the appellant and the other accused persons, namely, Premananda & Jashomati, the statement of such accused persons before villagers after being caught cannot be admissible under Section 10 of the Evidence Act against the appellant. It is settled law that confessions of a co-accused is a corroborative piece of evidence and cannot be the sole basis of conviction - There is no evidence on record connecting the appellant to the abortion of the victim resulting in her death. Hence, he cannot be convicted on the basis of statement of a co-accused which has been retracted by them during trial. The prosecution case has not been proved at all on the basis of legally admissible evidence. No doubt there exists a strong suspicion against the appellant but suspicion howsoever strong cannot take the place of proof - the appellant acquitted of the charges levelled against him due to lack of cogent evidence - appeal allowed.
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