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Anil Kumar vs State Of U.P. on 16 February, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

In Chamber

Case :- CRIMINAL APPEAL No. – 880 of 2016

Appellant :- Anil Kumar

Respondent :- State Of U.P.

Counsel for Appellant :- Suneel Kumar Rai,Ashok Kumar Mishra,Ram Babu Sharma,Shailendra Yadav

Counsel for Respondent :- G.A.

And

Case :- CRIMINAL APPEAL No. – 829 of 2016

Appellant :- Smt. Chandrawati And Anr.

Respondent :- State Of U.P.

Counsel for Appellant :- Suneel Kumar Rai,Ram Babu Sharma

Counsel for Respondent :- G.A.

Hon’ble Amreshwar Pratap Sahi,J.

Hon’ble Abhai Kumar,J.

(Delivered by Hon’ble Abhai Kumar, J.)

Heard Sri Ram Babu Sharma, learned counsel for the appellants in both the appeals and Sri Sagir Ahmad alongwith Sri Virendra Pratap Yadav, learned counsel for the State.

Both the appeals are arising out of the same judgment dated 11.2.2016 passed by Additional Sessions Judge (Fast Track) Court No. 1, Bulandshahar in Session Trial No. 368 of 2015 whereby accused-appellants in Crime No. 217 of 2014, under Sections 498A, 304B IPC and Section 3/4 Dowry Prohibition Act and in alternate Section 306 IPC have been acquitted whereas under Section 302/34 IPC have been convicted and sentenced for rigorous life imprisonment alongwith fine of Rs. 5,000/- each and in default of payment in fine, one month additional simple imprisonment to each of the appellants.

Brief facts of the case are as follows:

Complainant received information from Bhola son of Munshiram regarding the death of his daughter Guddi on 7.9.2014 that she has been killed at 11.00 a.m. on the same day, then he alongwith his brother Kamal Singh and other persons reached to the in-laws’ house of her daughter where he found his daughter dead. On the information received by police station concerned, PW-6 S.I. Megh Singh reached on the spot alongwith Naib Tehsildar and other police personnel including a lady home-guard and prepared the inquest report and also collected a dupatta in two pieces from the place of incident and sent the body for postmortem. At the time of inquest, complainant with his relatives was present and he did accompany the body to the mortuary where postmortem was conducted. From there, complainant came to the police station alongwith his brother Kamal Singh and got the FIR scribed from Kamal Singh. FIR was lodged at 10.45 p.m. in the night showing the incident of 7.9.2014 at 3.00 p.m. whereas as per information received by the complainant, death occurred at 11.00 a.m. on the same day. During the investigation, statements of witnesses were taken by the Investigating Officer. Site plan was also prepared that is Exhibit Ka-3. Affidavits on behalf of complainant as well as his brother, son of the complainant and other persons were filed in support of the prosecution before the Investigating Officer and Investigating Officer after finding the fact that death has been caused due to demand of dowry, chargesheet under Sections 498A, 304B, 302 IPC and Section 3/4 Dowry Prohibition Act, has been filed. Trial court formulated the charge under Sections 498A, 304B IPC and Section 3/4 Dowry Prohibition Act. In the alternate, charge under Section 302 read with 34 of IPC and Section 306 IPC also made, from which denial is being made by the appellants and claimed trial.

Before the trial court, complainant was produced as PW-1 who although supported the prosecution version in his initial statement of examination-in-chief, but later on he resiled from his earlier statement and did not support the prosecution story. This witness has been cross-examined by the appellants side but inspite of not having supported the prosecution case, this witness has not been declared hostile by the prosecution side and cross-examination on behalf of prosecution has not been done. This witness did accept the filing of FIR but asserted that FIR was not read-over to him which was written by his brother Kamal Singh. Witnesses of facts were also produced as PW-2 Smt. Rajwati, mother of the deceased- Guddi and PW-3 Monu Kumar, brother of the deceased and they have been declared hostile by the prosecution side upon being cross-examined and having not supported the case of the prosecution. Then there are following formal witnesses. PW-4 Dr. Pradeep Kumar who conducted the autopsy of the deceased- Guddi next day of the death i.e. 8.9.2014 and recorded two ligature marks upon the body of the deceased measuring 9.5cm x 1cm and 4cm below the left ear and left side of neck and second injury was measuring 8 x 1 cm on the right side of neck, 5 cm below right ear. Hyoid bone its cornu found fractured (broken). On exploration subcutaneous tissue and muscle were echymosed. Underneath larynx trachea found congested. Bleeding was found from the nostril and in the opinion of the doctor, death was due to strangulation and asphyxia, and death was about one day at the time of postmortem. Postmortem report is being proved by PW-4 as Exhibit Ka-2.

PW-5 is Investigating Officer who proved the site plan, exhibit – ka-3. During investigation he perused the memo regarding the dupatta and also took the statement of various witnesses including Dr. Pradeep Kumar and he also submitted the chargesheet against the appellant Kallu Mal @ Kalu Ram which is also being proved by him as Exhibit Ka-4. Inquest report was proved by PW-6 S.I. Megh Singh. He also proved the memo of taking dupatta in custody. He also proved the ‘photolash’ which is Exhibit Ka. 8, relevant for the purposes of this appeal and other relevant papers regarding the inquest. PW-7 is scribe of the check FIR which is Exhibit Ka. 11 and also proved the G.D. Entry regarding the lodging of FIR as Exhibit Ka.12. PW-8 is second Investigating Officer who submitted the chargesheet against the appellants Anil and Smt. Chandrawati, which is Exhibit Ka.13.

After the conclusion of the prosecution evidence, statements of all the appellants under Section 313 Cr.P.C. were taken wherein they have asserted that they have been falsely implicated and deceased was under distress and due to distress and depression, she committed suicide. No oral or documentary evidence was adduced by them.

Trial court after perusing the record and hearing the parties came to the conclusion that, charges under Sections 498A, 304B IPC and Section 3/4 D.P. Act and alternate charge under Section 306 IPC are not made out but the alternate charge under section 302/34 was found to be proved by the trial court and accordingly convicted the appellants.

Trial court did not find the story of the defence correct that deceased was under depression and committed suicide. It is also observed by the trial court that from the postmortem report it can be inferred that deceased was strangulated and was murdered and the opinion of the doctor that the injury could have been that of suicide, and suicide might have been committed by the deceased, is not trustworthy. Taking the help of Section 106 of Indian Evidence Act, trial court reached to an adverse inference against the appellants and also found the deceased, living with all the appellants in the same house and as there was no separate living of the appellants, all the appellants were held to be liable for causing the death of the deceased Guddi.

Learned counsel for the appellants straightway submitted that case of the prosecution was based upon false evidence, the basis of the prosecution allegation was not supported by the witnesses of facts and, accordingly trial court rightly came to the conclusion that charges under Sections 498A, 304B IPC and Section 3/4 D.P. Act were not established.

The contention of the learned counsel is four fold. Firstly, it is submitted by the learned counsel that except the injury on the neck, no mark of injury was found on any other part of the body of the deceased, and as such it can very well be inferred that there was no struggle prior to death of Guddi and had there been forced hanging of the deceased, then in natural course she would have tried to avert the incident and in the process, would have received injuries. Absence of any external injury clearly shows that this is a case of suicide and not of strangulation.

The next contention of the learned counsel is regarding the apparels and jewelleries found on the part of the deceased and in the inquest it has been clearly recorded that the deceased at the time of death was wearing Todia of white metal in both legs, then was also wearing two bichhiyas each in both the legs, six bangles of glass in each of her hands and was also having ornaments in her fingers and ears. The bangles were not found to be broken and had there been any attempt of forceful hanging, then condition would have been otherwise.

The third contention of the learned counsel is regarding the medical evidence and has been asserted by the learned counsel that as per statement of doctor PW-4, injuries could have been caused by self hanging of the deceased.

The last contention of the learned counsel is regarding Section 106 of the Indian Evidence Act, 1872 and it has been submitted by the learned counsel that this section has wrongly been applied by the learned trial court. From the statements of PW-1 to PW-3, it is clearly proved that deceased was mentally ill and at the time of incident she was in the condition of depression as a result whereof she committed suicide and in the circumstances nothing was to be explained by the side of the defence as to how Guddi died and accordingly application of Section 106 of Indian Evidence Act is not there.

Learned AGA vehemently opposed the submissions of the learned counsel for the appellants and it has been submitted by the learned AGA that though no mark of injury except upon the neck was found on the body of the deceased, but from that it cannot be said that deceased hanged herself. Similarly, if several ornaments were found on the body of the deceased at the time of inquest, this also does not mean that the heinous act was not committed by the appellants. So far as medical evidence is concerned, the learned AGA has supported it on the ground that in the postmortem report itself it has been recorded by the doctor that death is due to strangulation and the statement of doctor that injury could also have been caused due to hanging by the deceased herself, is merely an opinion of the doctor and same is not binding upon the court and trial court has rightly not believed the statement of the doctor in this regard.

It was further submitted by the learned AGA that from the inquest report it can be inferred that there was only one injury on the body of the deceased that was round the neck. From the photolash, exhibit Ka-8, it is clear that only one injury is being shown that is around the neck of the deceased and this injury could be caused only by strangulation. It is next contended by the learned AGA that although the doctor has recorded in the postmortem that there are two injuries, but the dimensions of the injuries are such that in case both the injuries are clubbed together, then it can be inferred that the injury is only one covering the full circumference of the neck. Moreover, injuries are below the ears, 4 cm from the left side and 5 cm from the right side and from that also an inference regarding the strangulation can be drawn. Injuries found on exploration, which were found during postmortem are also supportive of strangulation. The trial court has observed it minutely and came to the right conclusion that death was caused by strangulation.

The learned AGA then urged that initially the burden of proof is upon the prosecution and that has been discharged by the prosecution by proving that death was caused due to strangulation, and in the circumstances application of Section 106 of the Indian Evidence Act has rightly been made by the learned trial court. Learned AGA has also dismissed the theory of depression and it has been asserted that this theory is being evolved later on by the defence side when the complainant arrived at a compromise with the defence side. The theory of depression is highly improbable and all the evidence produced in this regard as well as oral evidence, are an afterthought and seeing the statements of the witnesses of fact that is PW-1 to PW-3, the whole story of depression seems to be shaky. As per AGA, it is also noteworthy that the body of the deceased was never found in the hanging position, rather it was found in the drawing room whereas hanging is said to have been shown in another room. It is not made clear by the defence side, why the body was removed from the place where it is said to be hanging from a ceiling fan, then dupatta has also been found in two parts, which has also not been explained by the defence side. It is also clear that from the side of defence, nobody was present at the time of inquest and this conduct of the appellants is also adverse to them.

Certainly, except for the injury on the neck, no mark of injury was found on any other part of the body. No doubt, deceased was wearing so many jewelleries upon her body at the time of inquest, but from that no inference in favour of defence can be drawn merely because there was no sign of resistance. If concrete evidence regarding murder was available and no satisfactory explanation has been put-forward by the appellants, on the basis of these facts it cannot be said that deceased committed suicide.

The main contention of the learned counsel is that the deceased was not mentally stable as a result whereof she was under depression and that is why, she committed suicide. To assess this argument, PW-1 in his initial statement under examination-in-chief supported the case of the prosecution and stated that in-laws of the deceased were not happy with the dowry that was given in marriage and his son-in-law Anil used to threaten his daughter, but in the examination-in-chief itself later on it is stated by this witness that his daughter never complained regarding demand of dowry by the accused-appellants, and FIR was wrongly lodged by his brother Kamal Singh that was not readover to him. Then in his statement in cross-examination, this witness has made a conscious effort to exonerate the appellants.

FIR was scribed by the brother of the complainant. Later on to the SSP, affidavits in support of the prosecution were given by the complainant as well as other witnesses. Role of filing of fake affidavit is assigned to Indrapal by this witness. To justify the naming of appellants in FIR and the presentation of affidavit, this witness has even gone to state that certain altercation took place between his brother Kamal Singh as well as Indrapal prior to the incident and that is why they were having enmity with the brother-in-law of the complainant. He stated that when he reached at the place of incident, his brother-in-law Kallu Mal was waiting for him. Again it is being stated by him that Kallu Mal accompanied upto the place of postmortem. The entire effort of the complainant to exonerate the appellants are evaporated when we see that immediately after the body reached to the place of postmortem, complainant came to the police station and lodged the FIR against the brother-in-law Kallu Mal and other persons and affidavit in support is also given. Reason afforded for that is far from truth and cannot be accepted. In this regard, the contention of the learned AGA that from the side of appellants, nobody was present at the time of inquest sounds correct. Apart from the above two statements of PW-1, there is no evidence upon record that appellants were present when police came for the inquest. At the time of inquest, family members of the complainant were present and were made witnesses to the inquest report and one of them Vijay Kumar seems to be not the family member of the complainant but he is also the resident of the same police station to which the complainant belongs. Neither any member of the appellants side nor any other person of the locality has been made witness. This fact goes to prove that the appellants were not present when the inquest is being undertaken or even when the body sent for the postmortem. The contention of Sri Sharma for the appellants that the words “Maujood Hai” should be inferred as recording the presence of the accused is not established as the scribe of the inquest report does not appear to suggest the presence of the accused at that moment nor does the evidence of concerned police official corroborates the same.

Nobody has seen the body in hanging position and it is also not made clear by the defence side as to how the body reached to the other room from the place where hanging is said to have been done. It is also not made clear by the defence side, as to how dupatta is being found in two pieces. It is also not made clear by the defence side, why body was at all removed from the place of incident and why it was removed from the hanging position. All these facts can be relevant and were liable to be proved by the side of defence, under Section 106 of Indian Evidence Act. Certainly, prior to implication of Section 106 of Indian Evidence Act, prosecution is required to prove the other facts which could have been proved by it by collecting evidence in this regard. Only those facts are required to be explained by the defence side which could not have been visualized by the prosecution or evidence regarding that could not have been gathered by the prosecution. The story of depression or mental instability of the deceased is an afterthought and certainly is being evolved after some compromise arrived at between the parties. It is stated by PW-1 that false affidavits were filed by Indrapal and later on when this fact has come to the knowledge of the witness then correct affidavits were filed in court.

Except for oral evidence, there is no documentary evidence regarding the mental instability of the deceased. It is the statement of the PW-1 as well as other witnesses of the facts that treatment of the deceased went for years and after marriage she was normal and led a normal life till some time before the death. In absence of documentary evidence, the story of mental instability of deceased is not liable to be accepted. Statement of the witnesses is also not very consistent in this regard. PW-1 has stated that six months prior to death, deceased again started behaving abnormally and inspite of the intervention of the complainant, position did not improve. Whereas PW-3 brother of the deceased has stated that three months prior to death, abnormality surfaced to the deceased and that is why, she committed suicide. PW-1 has further stated that abnormal behaviour of the deceased was apprised by the father-in-law of the deceased to the complainant. If the deceased was having any mental problem six months prior to death, certainly she might have received medical attention in this regard but not a whisper was made by the defence side that any treatment was undertaken of the deceased at her in-laws’ house. There is, therefore, no corroboration of the theory of depression of the deceased and the story of suicide is belied by that.

From the medical evidence it can be inferred that two long ligature marks are recorded on either side of the neck and in the postmortem it has been clearly mentioned that death is due to strangulation. If both the ligature marks are reconciled, then the total length comes to around 17 cms and from this fact it can be said that whole neck was covered by the mark. Why the doctor did not mention the gap between two injuries, it is also not made clear. It is also not clear that when he clearly reported that death is due to strangulation, then why he stated before the court that death could also have been caused by hanging by the deceased herself. In this regard the statement of witness PW-6 Megh Singh is relevant. In the inquest report it has been clearly mentioned that only one injury is found upon the body of the deceased, which is around the neck. In the photolash, as already said above, one injury is being shown that it is all around the neck. The injury is also 4cm and 5cm, below the ears, as has been reported in the postmortem. Same also goes to conclude that injury is of strangulation and not of hanging. Observation of the trial court that the skin beneath injury was such, which concludes that injury was of strangulation. From the postmortem, it can be inferred that on exploration, subcutaneous tissue and muscle was echymosed. Hyoid bone its cornu found fractured (broken). Larynx trachea found congested. Bleeding was found from the nostrils. Though hyoid bone can be found fractured even in suicidal cases, blood may be found from the nostrils. Echymosed muscle can be only when there is bleeding beneath and in the given circumstances seeing the nature of the injury it cannot be accepted to be the injury of self hanging and is that of strangulation. The observation of the trial court in this regard is apt and the trial court has very carefully perused the postmortem report and has come to a right conclusion that the deceased has been murdered and has not committed suicide.

It is the submission of the learned counsel that even if it is presumed that deceased was murdered but nobody has seen the occurrence of crime and as such taking the benefit of Section 106 of Indian Evidence Act, they cannot be held responsible for murder. Initial burden to prove any fact is upon the prosecution in which prosecution has failed utterly and in such circumstances, the reliance of the trial court upon Section 106 of Evidence Act was erroneous.

Learned counsel for the appellants fortified his contention on the basis of law propounded by another division bench of this Court in the case of Dr. (Smt.) Nupur Talwar Vs. State of U.P. and another reported in ADJ 2017 (10) 586.

The division bench of this Court in the aforesaid case has discussed the implication of Section 106 of Indian Evidence Act at length. Learned counsel for the appellants referred the following paras of the case:

237. In Ch. Razik Ram versus Ch. J.S. Chouhan reported in AIR 1975 SC 667 it has been held as under:-

“116. In the first place, it may be remembered that the principle underlying Section 106, Evidence Act which is an exception to the general rule governing burden of proof – applies only to such matters of defence which are supposed to be especially within the knowledge of the defendant-respondent. It cannot apply when the fact is such as to be capable of being known also by persons other than the respondent.”

238. In State of West Bengal versus Mir Mohammad Umar reported in 2000 SCC(Cr) 1516 it has been reiterated as under:-

“36. In this context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows : “When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”

37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn 35 regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference.

38. Vivian Bose, J. had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused.”

239. The applicability of Section 106 of the Indian Evidence Act, 1872 has been lucidly explained by the Apex Court in paragraph 23 of its judgement rendered in the case of State of Rajasthan versus Kashi Ram reported in JT 2006 (12) SCC 254 which runs as here under:-

“23. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution.”

242. P. Mani Vs. State of T.N. 2006 (3) SCC 161 the Apex Court held as here under :

10. We do not agree with the High Court. In a criminal case, it was for the prosecution to prove the involvement of an accused beyond all reasonable doubt. It was not a case where both, husband and wife, were last seen together inside a room. The incident might have taken place in a room but the prosecution itself has brought out evidences to the effect that the children who had been witnessing television were asked to go out by the deceased and then she bolted the room from inside. As they saw smoke coming out from the room, they rushed towards the same and broke open the door. Section 106 of the Evidence Act, to which reference was made by the High Court in the aforementioned situation, cannot be said to have any application whatsoever.

245. A Division Bench of this Court in paragraph 24 of the aforesaid judgement rendered in the case of Pawan Kumar versus State of U.P. and reported in 2016 SCC OnLine All 949 held as under:-

“Section 106 of the Evidence Act can not be utilised to make up for the prosecution’s in ability to establish it’s case by leading cogent and reliable evidence, especially when prosecution could have known the crime by due diligence and care. Aid of section 106 Evidence Act can be had only in cases where prosecution could not produce evidence regarding commission of crime but brings all other incriminating circumstances and sufficient material on record to prima facie probablise it’s case against the accused and no plausible explanation is forthcoming from the accused regarding fact within his special knowledge about the incident. That section lays down only this much that if a fact is in the “special knowledge of a person” and other side could not have due knowledge of it in spite of due diligence and care then burden of proving that fact lies on that person in whose special knowledge it is. Section 106 Evidence Act has no application if the fact is in the knowledge of the prosecution or it could have gained it’s knowledge with due care and diligence.”

On the basis of above reference, learned counsel submitted that in the present case, only suspicion is upon the appellants but it cannot be said that any fact is being suppressed by them which were in the special knowledge of theirs. Prosecution is not relieved any of its burden from proving the case and Section 106 of Indian Evidence Act is an exception to the general rule governing the burden of proof, as already held in the case of Ch. Razik Ram (supra).

It is further submitted by the learned counsel that, Section 106 of Indian Evidence Act lays down only this much that if a fact is in the special knowledge of a person and other side could not have due knowledge of it, inspite of due diligence and care, then burden of proof lies on such person in whose special knowledge it is. It is incumbent upon the prosecution to establish by cogent and reliable evidence that certain crime was committed in a particular case at a particular place and to produce evidence in this regard, justifies the application of Section 106 of Evidence Act to the facts and circumstances of the case. Mere failure of explanation for the circumstances under which murder is being committed, the help of Section 106 of Indian Evidence Act, cannot be taken.

Argument of learned counsel is misconceived and is not tenable to contend that the prosecution has not prima facie established the murder of the deceased. As already said above, deceased was murdered by strangulation and theory of suicide could not be established by the defence side. It is admitted fact that death was caused in the house of the appellants. It is also admitted fact that the body was not found in a hanging position rather nobody saw the body in a hanging position. The body was also found in a different room where hanging is said to have occurred and dupatta which was allegedly utilized for hanging was also found in two pieces. It is not claimed by the appellants that they were not present in the house or in the vicinity of the place. It is also not the theory of the appellants that they came to the house, then they found the body on the bed. It is also not the case of the defence that it is not in their knowledge that the body has been removed from the place of hanging and is being shifted to another room.

Once it is established that death has occurred in the house of the appellants and is not due to hanging rather by strangulation, burden of proving the fact upon the prosecution is over. Prosecution could have gathered the evidence, whether anybody saw the body in hanging position or anybody saw the deceased committing suicide or anybody saw the appellants there. Statement of PW-1 is quite apt in the circumstances wherein he has stated that inspite of his queries nobody came forward with the knowledge as to how death is being caused. From the facts it can be inferred that nobody saw the occurrence and in the circumstances it was incumbent upon the appellants to explain the facts regarding the removing of the hanging body from the place of hanging, then taken to another room and the two pieces of dupatta. But the defence has miserably failed in that.

In the case of Dr. (Smt.) Nupur Talwar (supra), division bench of this Court discussed the law propounded by Hon’ble Apex Court in State of Rajasthan versus Thakur Singh reported in (2014) 12 SCC 211 wherein appeal was allowed by the apex court reversing the acquittal order of the High Court of Rajasthan and held as under:

“The High Court did not consider the provisions of Section 106, Evidence Act at all. The law is quite well settled, that burden of proving guilt of the accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused, and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts. In the instant case, since the deceased died an unnatural death in the room occupied by her and the respondent, cause of unnatural death was known to the respondent. There is no evidence that anybody else had entered their room or could have entered their room. The respondent did not set up any case that he was not in their room or not in the vicinity of their room while the incident occurred, nor he did set up any case that some other person entered room and cause to the unnatural death of his wife. The facts relevant to the cause of the death of the deceased being known only to the respondent, yet he chose not to disclose them or to explain them. The principle laid down in Section 106, Evidence Act, is clearly applicable to the facts of the case and there is, therefore, a very strong presumption that the deceased was murdered by the respondent. It is not that the respondent was obliged to prove his innocence or prove that he had not committed any offence. All that was required of the respondent was to explain the unusual situation, namely, of the unnatural death of his wife in their room, but he made no attempt to do this. The High Court has very cursorily dealt with the evidence on record and has upset a finding of guilt by the trial court in a situation where the respondent to failed to give any explanation whatsoever for the death of his wife by asphyxia in his room. In facts of the case, approach taken by the trial court was the correct approach under the law and the High Court was completely in error in a relying primarily on the fact that since most of the material prosecution witnesses (all of whom were relatives of the respondent) had turned hostile, the prosecution was unable to prove its case. The position in law, particularly Section 106, Evidence Act, was completely overlooked by the High Court, making it a rife at a perverse conclusion in law.”

The division bench in the aforementioned case of Dr. (Smt.) Nupur Talwar, discussed the applicability of Section 106 of Indian Evidence Act and referred the apex court’s decision in Shambhu Nath Mehra versus State of Ajmer reported in AIR 1956 SC 404, wherein Hon’ble Apex Court held as under:

11.”This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word “especially” stresses that it means facts that are preeminently or exceptionally within his knowledge.”

As already said above, prosecution has succeeded in proving the fact that a murder was committed in the house of appellants. It is also narrated above that it was not possible for the prosecution to gather evidence regarding the manner in which homicide of deceased took place. The theory of depression and mental instability of the deceased was also not accepted by the trial court nor does it appeal to this Court. The defence ought to have explained the minute complicated facts regarding the death of the deceased. It is also nowhere explained by the defence side as to what was the location of appellants when the incident took place. Although it has come from the side of prosecution that information is given by one Bhola that death is being caused at 11.00 a.m. yet defence side has not come with a clearer picture before this Court as to at what time actually the incident happened, whether it was 11.00 a.m. or not. It is also not being explained by the defence side as to where they were at the time of incident. All these facts can be termed to be in the special knowledge of the appellants and it was incumbent upon them to prove the facts but they have miserably failed. They have not produced either oral or documentary evidence in this regard. Plea of alibi is also not being taken by them and in the circumstances it can be inferred that at the time of incident they were present in the vicinity or in the house itself and as such applicability of Section 106 of Indian Evidence Act is very apt in the present case. Defence cannot keep mum and take benefit of it.

In the inquest report itself when PW-6 Megh Singh reached on the spot, he found the body on the bed in the drawing room and it has been written in the inquest report that body from the hanging place has been removed by the inlaws’ side and body was found lying on the bed. It is also mentioned in the FIR that when complainant reached to the place of incident, he found the body of the deceased lying on the bed. The conduct of the appellants and their non-presence at the time of incident, can be viewed adversely against them.

In the ensuing facts and circumstances of the case and discussion made above, it is proved beyond all reasonable doubt that murder of the deceased is being committed in the house of the appellants and appellants who were required to prove the facts especially in their knowledge, as per Evidence Act under Section 106, has failed to discharge their burden.

The last question which is to be dealt is regarding the culpability of all the appellants in the case. It is submission of the learned counsel for the appellants that as per statement of PW-1 father of the deceased, appellant Anil was living separately with the deceased. Appellant Anil was doing a job in a company at Noida and deceased was also having a son of four years. It is further submission of the learned counsel that even if it is presumed that death occurred in the house of the appellants, even then all the appellants cannot be convicted for the murder of Guddi/deceased as ingredients of Section 34 of IPC are not there. From the statements of PW-1 to PW-3, it cannot be said that relation of the deceased was strained with all the appellants. It is also not being shown by the prosecution that there was common intention on the part of all the appellants to commit murder and there was any premeditation for that. Whereas learned AGA vehemently opposed the contention of the learned counsel for the appellants and submitted that except for one bald statement of PW-1 that appellant Anil was living separately, there is no concrete evidence regarding separate living of appellant Anil. Even in the statement under Section 313 Cr.P.C., it is not being claimed by the appellants that appellant Anil was living separately with the deceased.

Before dealing with the contentions made by the rival counsels, perusal of Section 34 IPC is required, which runs as under:

“34. Acts done by several persons in furtherance of common intention.–When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.”

Appellants were acquitted for the charges under Sections 498A, 304B IPC and Section 3/4 Dowry Prohibition Act. On the basis of acquittal under the aforesaid Sections, it can be said that there was no demand of dowry or cruelty in this regard. Prosecution was required to prove as to what was the common intention between all the appellants for committing the murder of the deceased. Even if the murder is being committed in the house of the appellants, can all the appellants be held liable for the death of Guddi. Whether it was unjust on the part of the trial court to convict all the appellants by invoking Section 106 of the Indian Evidence Act.

In absence of common intention, it is to be seen as to whom culpability of the deceased can be attributed. No doubt , appellant Anil is the husband of the deceased. They were having a four year old son and certainly they must be living in a separate room, may be in the same house where appellants are stated to be living. From the site plan it can be inferred that house of the appellants was a modern house having one drawing room, separate kitchen and separate room where hanging is said to have taken place. From this fact it can be inferred that husband of the deceased, appellant Anil, was having more association with deceased and it can also be presumed in the facts of the case that they were living in the room in which the hanging is said to have occurred.

Here the burden of proving the facts especially in the knowledge of the appellants lies on appellant Anil and it cannot be said that same can also be applied to the rest of the appellants. Here the bald statement of PW- 1 is relevant regarding the separate living of Anil with the deceased. The statement of PW-1 is helpful to reach a conclusion that it is appellant Anil who can be held responsible for the murder when Section 106 of the Indian Evidence Act is taken into consideration. When there is no demand of dowry, no cruelty in this regard and no reason has been put forward by prosecution regarding strained relations of the deceased with the father-in-law and mother-in-law, presumption of their involvement will be unjust. Now it is left to the husband Anil to explain the murder of deceased. Proved murder coupled with Section 106 of Indian Evidence Act, guilt of the appellant Anil is proved beyond all reasonable doubt.

Prosecution has utterly failed to prove the common intention for committing the murder on the part of the appellants Smt. Chandrawati and Kallu Mal alias Kalu Ram and accordingly their conviction for murder of deceased under Section 302 read with Section 34 IPC, is not sustainable.

Consequently, the appeal preferred by appellants Smt. Chandrawati and Kallu Mal alias Kalu Ram is liable to be allowed. Accordingly, the conviction of appellants Smt. Chandrawati and Kallu Mal alias Kalu Ram is hereby set aside and they are acquitted of the charges under Section 302/34 IPC whereas the appeal of appellant Anil is liable to be dismissed. It is, accordingly, dismissed.

Lower court record alongwith a copy of the judgment be sent back immediately to the district court concerned for compliance and further necessary action.

Order Date :- 16.2.2018

Ranjeet Sahu

 

 

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