—
2023INSC879 REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 301 OF 2015
BALVIR SINGH …APPELLANT(S)
VERSUS
STATE OF UTTARAKHAND …RESPONDENT(S)
WITH
CRIMINAL APPEAL NO. 2430 OF 2014
JUDGMENT
J. B. PARDIWALA, J.:
1. Since both the captioned appeals arise from a common judgment and
order passed by the High Court dismissing two criminal appeals of two accused
persons tried in one sessions case those were heard analogously and are being
Signature Not Verified
Digitally signed by
CHETAN KUMAR
Date: 2023.10.06
15:46:48 IST
Reason:
disposed of by this common judgment and order.
Page 1 of 42
2. These appeals are at the instance of two convicts and are directed against
a common judgment and order dated 24.03.2014 passed by the High Court of
Uttarakhand at Nainital in the Criminal Appeal No. 273 of 2013 and Criminal
Appeal No. 274 of 2013 respectively by which the High Court dismissed both
the appeals and thereby affirmed the judgment and order of conviction passed
by the Additional District and Sessions Judge Kotdwar, Garhwal in the Sessions
Trial No. 48 of 2008 holding Balvir Singh (husband) guilty of the offence of
murder punishable under Section 302 of the Indian Penal Code, 1860, (for
short, ‘the IPC’) alongwith the offence punishable under Section 498A of the
IPC and Maheshwari Devi (mother-in-law) guilty of the offence punishable
under Section 498A of the IPC read with Section 34 of the IPC.
CASE OF THE PROSECUTION
3. The deceased, namely, Sudha was married to Balvir Singh. The marriage
of the deceased with Balvir Singh was solemnised on 12.12.1997. In the
wedlock a son was born. On 02.06.2007, father of the deceased, namely,
Virendra Singh (PW1) preferred an application in the court of the Judicial
Magistrate First Class, Kotdwar, Garhwal under Section 156(3) Code of
Criminal Procedure, 1973 (for short, ‘the CrPC’), seeking a direction to the
Police to register an FIR in connection with the death of his daughter in
suspicious circumstances. The Judicial Magistrate First Class, Kotdwar,
Garhwal, passed the following order dated 04.06.2006:
Page 2 of 42
“Order
04.06.2006
Applicant Virendra Singh had filed application under
section 156(3) Cr.P.C. for passing order for registration of First
Information Report against accused persons, wherein, applicant
has mentioned as under that marriage of daughter of applicant
Sudha had been solemnized on 12.12.1997 with Balvir Singh son
of late Mahavir Singh, resident of village Ratanpur,
Kumbhuchau, Halqa-Saneh, Kotdwar, Garhwal at Uttari
Jhandichaur, Police Station Kotdwar and out of their wedlock,
one son was born to them. After sometime from solemnization of
marriage Balvir Singh and Smt. Maheshwari Devi mother of
Balvir Singh connived together and started harassing my
daughter in different ways and started raising demand of Rs. One
lakh cash in dowry. Applicant’s daughter informed applicant
about the same through letters. Balvir Singh has been working in
a Private Nursing Home in Delhi and he is very well acquainted
with medicines. According to the Applicant, Balvir Singh before
committing murder of his daughter managed to arrange fake
prescription slips which he has kept with him. Despite reluctance
of his daughter, on 09.05.07 Balvir left his son at Kotdwar and
forcibly took my daughter Sudha who was in healthy condition to
Mangolpuri, Delhi. Before leaving, Applicant’s daughter
expressed her wish to her uncle over telephone about her
reluctance for going to Delhi. On 13.05.07 at about 1.30 o’clock
in the night Applicant’s younger brother Harender Singh received
information from Delhi over phone that his daughter Sudha has
all of a sudden left for her heavenly abode in Mangolpuri. Balvir
Singh did not give this information to any of the other family
member rather some neighbour gave this information to the
younger brother of Harender Singh; Shivcharan, who resides in
Delhi. Shivcharan visited Mangolpuri in the night itself, where
he came to know that she was in good health on that night and
Balvir Singh after the death of the deceased, took her dead body
to his home at Ratanpur, Kotdwar by private ambulance without
giving information to anyone. When the applicant came to know
about this fact, he informed the police of Police Station Kotdwar.
There were reddish injury marks apparent on the throat of the
applicant’s daughter, due to which the Police initiated inquest
proceedings and arranged postmortem of the dead body.
Page 3 of 42
On calling for the report from Police Station on the
application filed by applicant, Police Station has submitted that
no First Information Report is lying registered at Police Station
on the basis of facts mentioned in the application moved by
applicant under section 156(3) Cr.P.C Applicant has filed
photocopies of letters written by his daughter and photocopies of
applications lodged by him with Inspector Incharge of Police
Station Kotdwar and Deputy District Magistrate, Kotdwar in
court in support of his application filed under section 156(3)
Cr.P.C.
On the basis of documents filed by applicant in support of
his application, prima facie offence seems to be made out.
Therefore, in such circumstances, registration of First
Information Report seems to be essential. Therefore, S.H.O.,
Police Station Kotdwar is ordered that hiving registered First
Information Report in the light of application filed by applicant
under section 156(3) Cr.P.C and to conduct investigation.
Sd/-
Judicial Magistrate”
4. Pursuant to the aforesaid order passed by the learned Judicial Magistrate,
the First Information Report came to be registered at the Kotdwar Police Station
on 09.06.2007 for the offence punishable under Sections 302, 498A read with
Section 34 of the IPC and Sections 3 and 4 respectively of the Dowry
Prohibition Act, 1961 (for short, ‘the Act 1961’). The First Information Report
reads thus:
“Sir, Applicant Virendra Singh, son of late Mohan Singh, resident
of Village Mawasa, Patti –Ajmer Pall, Tehsil Kotdwar Garhwal
respectfully submits as under:-
1. That the marriage of my daughter Sudha had been solemnized
on 12.12.1997 with Balvir Singh, son of late Mahavir Singh,
resident of village Ratanpur, Kumbhuchaur, Halqa-Saneh,
Kotdwar, Garhwal, from the house of my younger brother located
at Uttari Jhandichaur, Police Station Kotdwar and out of the
wedlock, one son was born to them.
Page 4 of 42
2. That sometime after marriage, Balvir Singh and Smt.
Maheshwari Devi who is the mother of Balvir Singh, in
connivance with him, started harassing my daughter in different
ways and raising demand of Rupees One lakh cash in dowry. Smt.
Maheshwari Devi has been getting pension and also owns landed
property. Balvir Singh is a greedy person and under the greed of
pension of his mother, he has been harassing my daughter and
subjecting her to beatings, not providing food to her, and that the
women of the village somehow provided her food by hiding
themselves from these people. My daughter wrote letters to us
complaining about this fact. When Balvir Singh and his mother
came to know about these letters, then they pressurized my
daughter for asking back the said letters and we accordingly
returned those letters, but letter dated 20.05.04 which has been
lodged by us at Police Station, remained with us. In this letter
also my daughter has put her grievances and harassment that she
faced.
3. That on getting knowledge of this incident me, my few relatives,
Panch, and Pradhan Ratanpur visited and tried to convince
Balvir Singh and his mother not to indulge in such acts so that in
future my daughter may stay there properly and I did not lodge
any report. However, Maheshwari Devi and Balvir Singh kept on
hatching conspiracy for eliminating my daughter Sudha. Once
they had made my daughter consumed poison also but my
daughter had not told this fact to anyone.
4. That Balvir Singh has been working in a Private Nursing Home
in Delhi and he is very well acquainted with medicines. Before
committing murder of my daughter, he managed to arrange fake
and forged prescription slips, which has been shown to police
also, and investigation about these slips medicines is required.
Despite reluctance of my daughter on 09.05.07 Balvir left his son
at Kotdwar in healthy condition and took my daughter Sudha at
Mangolpuri, Delhi forcibly. Before leaving, my daughter
expressed her unwillingness to go to Delhi, to my younger
brother Harender over telephone.
5. That on 13.05.07 at about 1.30 o’clock in the night my younger
brother Harender Singh received information from Delhi over
phone that my daughter Sudha has left for her heavenly abode all
of a sudden in Mangolpuri. Balvir Singh did not give this
information to any of our family member rather some neighbour
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gave this information to the younger brother of Harender Singh;
Shivcharan, who resides in Delhi. Shivcharan visited Mangolpuri
in the night, where he came to know that my daughter was in good
health on that night and Balvir Singh after the death of my
daughter, took her dead body to his home at Ratanpur, Kotdwar
by private ambulance without giving information to anyone.
When we came to know about this fact, then we informed the
police of Police Station Kotdwar but we could not provide all
details at that time. As reddish injury marks were apparent on the
neck of my daughter, Police initiated inquest proceedings and
arranged postmortem of her dead body. Sir, I have reason to
believe that the said Maheshwari Devi and her son Balvir Singh
have killed my daughter having hatched a conspiracy and have
also induced her little child also in their favour.
6. That her mother-in law and her husband Balvir Singh caused
inhuman harassment to my daughter which amounts to a heinous
crime. Photocopies of her letters are being annexed herewith. I
had lodged report at Police Station and Deputy District
Magistrate also that she has been killed, but no first information
report has not been registered till now. Therefore, it is prayed to
please order police of Police Station Kotdwar to register First
Information Report and get the offenders punished for the offence
committed by them.
Dated : 02.06.07. Applicant – Sd/- Virendra Singh son of late
Mohan Singh, resident of Village Mawasa, Patti –Ajmer Palla,
Tehsil –Kotdwar, District –Pouri Garhwal.
Note: I, HC 14 Kabool Singh Prajapati do hereby certify that
copy of formal report has been recorded word to word which is
clearly legible.
Sd/-
HC 14 Kabool Singh
Police Station Kotdwar
Dated : 09.06.07”
5. Upon registration of the FIR, the investigation was carried out. The dead
body of the deceased on being brought from Delhi to Kotdwar, was sent for
post mortem. The inquest panchnama was drawn in presence of the independent
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panch witnesses. The statements of various witnesses were recorded by the
investigating officer under Section 161 of the CrPC. The viscera collected
during the course of the post mortem was sent to the forensic science laboratory.
Both the appellants herein were arrested and remanded to judicial custody.
6. Upon conclusion of the investigation, chargesheet was filed for the
offences enumerated above. To the charge framed by the trial court vide order
dated 21.02.2009, the appellants pleaded not guilty and claimed to be tried.
7. The prosecution led the following oral evidence:
a. PW1 Virendra Singh (Father of the deceased)
b. PW2 Dr. Indra Singh Samant, Govt. Hospital (the Doctor who performed
the post mortem)
c. PW3 Harender Singh (Uncle of the deceased)
d. PW4 Balbir Singh (Another uncle of the deceased)
e. PW5 M.M.S. Bisht (Senior Sub Inspector)
f. PW6 Baldev Singh (Panch witness to the inquest proceedings)
h. PW7 Kabool Singh (Head Constable)
8. Prosecution also led documentary evidence as under:
a. Post mortem report Exh.Ka-4
b. Inquest report Exh. Ka-5
c. Two letters written by the deceased to her father i.e., PW1 Exh.Ka-1 and
Ka-2.
Page 7 of 42
9. The appellants herein examined Shivam Rawat the son of the deceased
as a defence witness (DW-1). The appellants also examined one Anoop
Singh cousin brother of the deceased as a defence witness (DW-2).
10. Upon conclusion of the oral evidence, the further statement of both the
appellants was recorded by the trial court. Two specific questions were
put by the trial court to the convict Balvir Singh and the reply to the two
questions were as under:
“Question No. 14:- Do you have anything else to say?
Answer:- I am innocent. Complainant has lodged a false case.
Question No. 15 :- Poison has been found in the examination of
viscera of the deceased. What do you have to say in this regard?
Answer:- I do not have knowledge as to how the poison has been
found, but the deceased was a heart patient and used to consume
medicines.”
11. The mother-in-law of the deceased stated in her further statement
recorded under Section 313 CrPC that she was innocent and had been falsely
implicated.
12. The trial court upon appreciation of the oral as well as documentary
evidence on the record held the husband guilty of the offence of murder
punishable under Section 302 of the IPC and also for causing harassment
punishable under Section 498A of the IPC. The trial court sentenced the
husband to undergo rigorous imprisonment with fine of Rs. 10,000/- The
mother-in-law, namely, Maheshwari Devi came to be acquitted by the trial court
of the offence of murder, however, she stood convicted by the trial court for the
Page 8 of 42
offence punishable under Section 498A of the IPC and was sentenced to
undergo 2½ years of imprisonment.
13. The trial court while holding the appellants guilty of the offence
enumerated above, recorded the following findings:
“21. Deceased died of poison. Although prosecution could not
bring clear evidence that victim was administered poison by
accused, but regarding harassment PW-1 and PW-2 have
produced evidence. This is established by Exhibit A1 and
Exhibit A2 too. Moreover, after her death poison was found in
viscera report. However, nothing has been said by the defence
about how it entered the body of the deceased. Accused
statement was registered under section 313 of Criminal
Procedure Code and he was clearly asked that poison was found
in deceased’s visceral examination report, what you have to say
about it? Regarding this accused Balvir Singh said that “I do
not have knowledge how it was found, but deceased was heart
patient and was on medication”. Regarding this, defence
examined DW-1 who is deceased’s son and who said in his
examination-in-chief that “my mother was undergoing
treatment at Delhi, where she died”. He further said “my
grandmother and father love me a lot and treated my mother
nicely”. He is a child witness. This witness told that the death of
the deceased took place during treatment but, nothing is said
about where she was undergoing treatment, or how she died.
Defence argued that deceased was a heart patient and because
of which death occurred but this argument is negated by viscera
report. DW-2 produced by defence said in his examination-in-
chief that “accused was getting the deceased continuously
treated at Delhi. Deceased Sudha was distressed because of her
illness. Accused use to take care of Sudha. Balvir Singh and his
mother did not harass her, and that she may have done
something to herself because of her illness”. This witness
produced by defence has based his evidence on new facts.
During cross-examination, examination of prosecution witness
by defence, no question regarding such matter was asked as to
whether the deceased was distressed either before her illness or
because of her illness. DW-1 who is deceased’s son and on
whom defence stressed upon, has not stated anything regarding
the deceased being distressed due to her illness. DW-1 has only
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stated that death occurred during treatment, while DW-2 has
based his evidence on new facts which are not concurring with
the facts of defence because they have said that treatment was
given at Escorts Hospital. Regarding this defence has
questioned PW-1 that in year 2006 accused paid a bill of rupees
3,82,500/-at Escorts Hospital which was refuted by him.
Regarding this defence has produced documents. I have
examined those documents. Although defence have not proved
those documents but in file page number 48A/2 a document of
rupees 3,82,500/-is present which was given by Dr. Nitish
Chandra, but said document is not a bill of payment instead it
is an estimate required for complete checkup and operation,
because in the document it is written that –‘Advance payment
may please be made at the time of admission by case/demand
draft in favour of Escorts Heart Institute and Research Centre
Ltd. Payable at New Delhi’. By looking at the document it is
clear that accused and others did not pay any money. Apart from
this there is no document in the file for payment of rupees
3,82,500/-. regarding this there is no statement from defence.
22. Apart from this prosecution witness PW-4’s cross-
examination was conducted. In his cross-examination by
defence the witness has said “it is true that in the inquest report
deceased’s husband stated that my wife after delivery of son,
used to remain ill. Often, she had episodes of unconsciousness.
On the night of 13 May 2007 at 10:00 pm, she had an attack and
did not regain consciousness. I took her to Sanjay Gandhi
Memorial Hospital, where she was declared dead by the
Doctor”. This witness gave statement in his cross-examination
that deceased died at Sanjay Gandhi Memorial Hospital
regarding which no document was filed. Although this witness
in his cross-examination also admitted that he was told this by
Balvir Singh. This witness is supporting defence, but this
witness statement is contrary to the oral and documentary
evidence in the file. If the accused admitted deceased to Sanjay
Gandhi Memorial Hospital after she had an attack on
13.5.2007, then there are no documents regarding this in the file
and the defence has not given any statement as to this.
23. Defence has argued that deceased Sudha died on
13.5.2007. On 13.5.2007 her last rites were performed and
complainant got the case registered under· section 156(3) on
2.6.2007. Application was filed very late and this delay has not
Page 10 of 42
been. explained. I am not in agreement with this argument of
defence. Victim died on 13.5.2007 and it is said that on
13.5.2007 her last rites were performed, but on receiving the
news of death prosecution witness immediately put forward his
doubt. In inquest report it is clearly written that deceased
Sudha’s death is suspicious, and postmortem should be done. In
above said inquest report PW-1 is one of the witnesses, he is
deceased’s father too. and was examined as PW1. During
evidence witness has said that “Balvir lives in Mangolpuri at
Delhi. Shivcharan was informed by neighbours that Sudha had
died and they brought the dead body to Ratanpur. Next day I
came to Kotdwar. I gave this information to Police station. Then
Police and I came to Ratanpur. There police prepared inquest
report. In inquest report I too was made a witness”. As soon as
witness received this information he raised a suspicion on the
incident. Police station was informed. This witness further said
“I wrote a letter to Police station to investigate into her death.
In this regard I made a written complaint to S.D.M., Kotdwar”.
This witness further said “then, with my lawyer’s help I filed a
petition under section156(3) of Criminal Procedure Code on
which court ordered to register a case”. This witness on
receiving information about incident immediately raised
suspicion and asked for a postmortem to be carried out. On
14.5.2007 an application was written to Police station to
investigate into the death of the Deceased. Police made inquest
report and conducted postmortem. In this situation, defence
cannot take benefit of the fact that complaint was registered
under section 156(3) of Criminal Procedure Code, because this
witness had informed Police station and S.D.M. Because of this
information given by him to police, police came to spot and
made inquest report.
24. In viscera report FSL has detected poison, in such
situation the burden was on accused to prove whether deceased
herself consumed poison and whether the deceased was under
mental stress due to which she might have consumed poison, but
defence did not make any statement of such kind during the
whole trial. In the end DW-2 has presented this evidence that
deceased was distressed because of her illness, but during the
whole trial defence argued that deceased was a heart patient
and was on treatment for it. Defence has argued that deceased
was on medication and that because of chemical reaction
medicine can naturally convert into poison, but no evidence was
Page 11 of 42
produced by defence regarding this, and no medical opinion
was taken that deceased was taking medicine of such nature
which due to chemical reaction could convert into poison in the
body. As this was brought up by defence, in such situation
burden was on them to prove it, but no statement was made
about it. According to Indian Evidence Act section 114(g) – that
evidence which could be and is not produced would, if
produced, be unfavourable to the person who withholds it.
25. In the presenting case this is argued by defence that
because of chemical reaction medicine can turn into poison in
deceased’s body, therefore the burden of proof was on defence,
but regarding this no evidence was produced by defence. In such
situation under section 114(g) it is important to presume that if
any evidence was produced by accused then it would have been
against him, because of which no evidence was produced by
defence. But deceased’s death took place at Delhi. Accused
Balvir Singh brought dead body from Delhi to Kotdwar. PW-1
in his examination-in-chief has said that “it is true that my
daughter was living with accused at Delhi”. On the basis of
statement given by PW-1, deceased’s death took place at Delhi,
where she was living with accused Balvir Singh. On the basis of
viscera report deceased died of poison. At the time of death only
accused Balvir Singh was present. Accused Maheshwari Devi
was not in Delhi. Since, deceased died at Delhi, in such situation
charge under, section 302 of Indian Penal Code is not found
against Maheshwari Devi.
26. As far as the question of dowry is concerned, PW-1 and
PW-2 have adduced evidence in this matter against accused
Balvir Singh and Shrimati Maheshwari Devi that they are
demanding dowry. This fact is also proved by document letters
exhibit A-1 and exhibit A-2 present in the file. Charge under
section 498A of Indian Penal Code against accused Balvir
Singh and Shrimati Maheshwari Devi is proved beyond doubt.
27. After above arguments I have reached the conclusion that
prosecution has proved that accused Balvir Singh and
Maheshwari Devi mistreated and harassed deceased for dowry
and demanded rupees 1 lakh from deceased. Therefore accused
Balvir Singh and Maheshwari Devi are fit to be convicted under
section 498A/34 Indian Penal Code. Because in this incident
deceased has died and it has come up in the evidence that
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deceased was living with accused Balvir Singh in Delhi,
therefore charge under section 302 of Indian Penal Code
against accused is proved and he is fit to be convicted for the
said charge. As prosecution could not prove that accused
Shrimati Maheshwari Devi was at Delhi with Balvir Singh
during the time of deceased’s death and no role of Maheshawari
Devi is proved in deceased’s death, therefore no charge under
section 302 of Indian Penal Code is proved against Shrimati
Maheshwari Devi and therefore, she is fit to be discharged of
the above said charge.”
14. The appellants feeling dissatisfied with the judgment and order of
conviction passed by the trial court went in appeal before the High Court. The
High Court dismissed both the appeals and thereby affirmed the judgment and
order of the conviction passed by the trial court. The High Court while
affirming the judgment and order of conviction passed by the trial court held as
under:
“3. In the chargesheet it was clearly held out that the death, in
the instant case, was by poisoning. No sooner, the death was
reported, PW1, looking at the dead body, insisted for an inquest
and the same was done. In course of inquest, he expressed doubt
as to the cause of death and demanded post-mortem.
Accordingly, post-mortem was done. The doctor, who conducted
post-mortem, could not determine the reason for the death. He,
accordingly, preserved a part of the heart and the viscera of the
deceased for the purpose of analysis. Viscera was sent for
analysis and Forensic Science Laboratory, Agra, to whom the
same was sent, reported that the same contained poison known
as “Aluminium Phosphide”. All these facts were in the charge-
sheet. The death, according to the chargesheet, had taken place
at Delhi, when A1 alone was present with the victim. It is A1,
who caused the dead body of the victim to be brought to
Ratanpuri, Kotdwara. It was not the contention of A1 that the
victim, at any point of time, had any suicidal tendency or that
he suspects that the victim committed suicide. It was the
contention of A1, as is evident from the trend of cross-
examination of the prosecution witnesses, and, in particular,
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suggestions given to the prosecution witnesses that the victim
was suffering from heart disease, for that, matter required
frequent treatment and administration of medicine. It was
suggested that such medicine, so administered, turned into the
aforementioned poison. That being an assertion on behalf of A1,
it was he, who was required to establish the same by tendering
adequate evidence, which he miserably failed. A dead person,
whose cause of death was by poisoning, was, accordingly, found
on the lap of A1. A1 had special knowledge pertaining thereto.
He failed to disclose· anything in relation thereto. The Court
below, in the circumstances, has taken adverse inference against
A 1 under Section 114(g) of the Evidence Act. We think that the
Court below was entitled to take such inference in the backdrop
of the case as depicted above.
4. We, accordingly, find no reason for interference. The Appeal
is dismissed. The judgment of the Court below is affirmed. The
Application (CRMA No. 1744 of 2013) filed for examining
applicant as witness for the defence is not pressed. The same is
dismissed. A1 is in Jail. He will serve out the sentence as
awarded by the Court below. A2 is on bail. Her bail bond is
cancelled. She is directed to surrender forthwith to serve out the
sentence awarded against her.”
15. In such circumstances referred to above, the appeals are here before this
Court with the captioned two appeals.
SUBMISSIONS ON BEHALF OF THE APPELLANTS
16. Ms. Manisha Bhandari, the learned counsel appearing for the appellant
vehemently submitted that the trial court as well as the High Court committed
a serious error in holding the appellants guilty of the offence as enumerated
above. It was argued that the case is one of “No Evidence” so far as the charge
of murder is concerned. According to the learned counsel, the husband was
working in Delhi past sometime before the date of incident whereas the
Page 14 of 42
deceased along with her son was staying at their native home town in the State
of Uttarakhand. It was also sought to be argued that the deceased was not
keeping well as she was suffering from a heart ailment. It was pointed out from
the post mortem report as well as from the oral evidence of the doctor that the
deceased had an enlarged heart and the ailment relating to heart could be the
cause of sudden death. The learned counsel in the alternative put forward the
theory of suicide. This theory of suicide was put forward by the defence on the
basis of the fact that poison was detected in the viscera, in the form of
“aluminium phosphide”. An attempt was made to argue that the deceased might
have consumed poison and committed suicide as she was tired of her ailment.
17. It was also argued that the evidence of the two defence witnesses would
suggest that there was no harassment of any nature to the deceased either by
the husband nor by the mother-in-law. It was also argued that no sooner the
deceased passed away than the husband immediately informed the family
members of the deceased about her sudden death. It is the husband who carried
the dead body from Delhi to his village at Uttarakhand.
18. It was argued that the entire case hinges on circumstantial evidence. It is
a primary principle that the accused must be and not merely may be guilty.
19. The learned counsel submitted that the facts which, the prosecution has
so established should be consistent only with the hypothesis of the guilt of the
accused that is to say, they should not be explainable on any other hypothesis
except that the accused is guilty. The circumstances are not of a conclusive
Page 15 of 42
nature and tendency. The circumstances do not exclude every possible
hypothesis except the one to be proved.
20. In the last, the learned counsel submitted that this Court may set aside
the conviction for the offence of murder and substitute the same with the
offence of abetting the commission of suicide punishable under Section 306 of
the IPC. It was pointed out that the convict-husband is undergoing sentence
past more than 9 years.
21. In such circumstances referred to above, the learned counsel prayed that
there being merit in both her appeals, those may be allowed.
SUBMISSIONS ON BEHALF OF THE STATE
22. Mr. Jatinder Kumar Bhatia, the learned counsel appearing for the State
vehemently submitted that no error not to speak of any error of law could be
said to have been committed by the High Court as well as by the trial court in
holding the appellants guilty of the respective offences.
23. It was sought to be vehemently argued that the deceased along with her
son was residing at their village whereas the husband was doing some job in
Delhi. The husband on the pretext of medical treatment of the deceased brought
her from the village to Delhi and within three days of their arrival in Delhi, the
incident occurred. It was argued that if the case put forward by the husband is
to be accepted then it is to be believed that while something went wrong with
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the deceased, the husband was very much present because according to the
husband he had immediately taken the deceased to the Sanjay Gandhi Hospital.
On being declared dead at the hospital, he thereafter brought the dead body to
the village.
24. In such circumstances referred to above, the learned counsel appearing
for the State submitted that in view of Section 106 of the Indian Evidence Act,
1872 (for short, ‘the Evidence Act’ or ‘the Act 1872’), it is for the convict-
husband to explain as to what had actually transpired. It is the convict-husband
who could be said to be in special knowledge of things that might have
transpired at the relevant point of time.
25. It was argued that the presence of poison in the viscera would indicate
that the same had been administered to the deceased in some manner and no
one except the husband could have administered the poison. It was also argued
that there was a strong motive for the husband to commit the crime. The
husband has also been held guilty of causing lot of harassment to his wife and
the same is evident from the two letters written by the deceased to her father
and are exhibited in the evidence.
26. The learned counsel laid much stress on the fact that both the appellants
have maintained complete silence especially of the facts which could be said to
be within their personal knowledge. The failure to explain, the circumstances
in which the death occurred is sufficient to hold the convict-husband guilty of
the offence.
Page 17 of 42
27. In such circumstances referred to above, the learned counsel prayed that
there being no merit in the appeals those may be dismissed.
ANALYSIS
28. Having heard the learned counsel appearing for the parties and having
gone through the materials on record, the only question that falls for our
consideration is whether the High Court committed any error in passing the
impugned judgment and order.
29. We take note of the following circumstances emerging from the facts on
record:
a. The cause of death is due to poisoning. The poison detected in the viscera
was aluminium phosphide. Aluminium phosphide is used as a fumigant to
control the insects and rodents in the foodgrains and fields. It is too much for
the convicts to say that the presence of aluminium phosphide in the viscera
could be due to the medicines which the deceased used to take for her heart
ailment. Such medicines even in high dosage would not lead to formation of
aluminium phosphide in the body. This theory which has been put forward
could be termed as something very absurd. No particular question in this
direction has been put to the expert witness (doctor) while he was in the witness
box. In such circumstances, the only inference that can be drawn is that
aluminium phosphide either in the liquid form or in the form of tablets was
Page 18 of 42
procured by the accused husband and the same was administered to the
deceased.
b. We completely rule out the theory of suicide as sought to be put forward
on behalf of the appellants
c. If it is the case of the convict-husband that he had taken the deceased to
the Sanjay Gandhi Hospital at Delhi then he should have led some evidence to
indicate how she was taken to the hospital, in what type of vehicle and who
attended the deceased at the hospital? In the case of the present type, it is very
difficult to believe that if the deceased had been taken to the hospital and
declared dead on arrival, the hospital authorities would allow the convict-
husband to carry the dead body of his wife back home. It would become a
medico-legal case and the hospital would definitely inform the police.
d. The dubious conduct of the convict-husband of not informing the family
members about the death of their daughter. Though in his further statement, the
convict-husband has said that he had informed the family members of the
deceased yet the evidence of PW3 Harender Singh (uncle of the deceased) is
otherwise. In his oral evidence, he has deposed as under:
“My niece Sudha had died on 13.5.2007. Information thereof
was given to me by my brother Shivcharan over the telephone.
Shivcharan was living in Delhi. Then I told Shivcharan to
inquire into the matter. Shivcharan went to the house of Balvir
but he was not there. Then I gave this information in the Police
Station, Kotdwar at 2 o’clock in the night over the telephone and
also informed my brother Virendra. Thereafter, my brother came
to the Police Station, Kotdwar in the morning. I also went to the
police station. Then I had gone to the village of Balvir. There I
Page 19 of 42
saw the dead body of Sudha. I do not know as to whether Sudha
died in Delhi or in the village.”
30. In the aforesaid context, the oral evidence of the PW1 Virendra Singh
(father of the deceased) is also relevant. In his oral evidence, PW1 has stated as
under:
“Balvir Singh took my daughter to Delhi in the year 2007 and
left his son here in the village itself. At the time of going, she
telephoned my brother Harender, who lives in Jhandi Chaur,
and had told him that she does not want to go to Delhi. She
unwillingly went, but I cannot tell how she had gone.
Two days after going to Delhi, my brother received information
that Sudha had died. My brother Shivcharan informed about it.
Balvir was living in Mangolpuri in Delhi. The neighbours told
Shivcharan that Sudha had died. Then, Balvir came to Ratanpur
with the dead body of Sudha. Then, I came to Kotdwar the next
day and gave this information in the police station. Then the
police came with me to Ratanpur. There the police prepared the
inquest report and I was the panch in the inquest proceedings.
There was a mark of injury on the neck of my daughter. I was
suspicious of her death and so, I asked for a post-mortem. The
witness was shown the inquest report Paper No. 9Ka, upon
which he admitted his signature at the opinion of the Panches.
Thereafter the dead body was sent for the post-mortem.”
31. We shall now look into the two letters addressed by the deceased to her
father (PW1). Both these letters have been proved through the oral evidence of
the PW1 and have been exhibited. The letter dated 20.05.2004, Exh. Ka-1 reads
thus:
Page 20 of 42
“Dated : 20.05.04
Respected mother and father, please accept my pranam with
folded hands. At the moment I am alive and pray before the
Almighty for wellbeing of your whole family. Father Saheb, the
reason behind writing this letter is that I am feeling quite
harassed here. There is no faith of life as to when it may come
to an end, any untoward incident may happen with me at any
time. Father Saheb, since the time my marriage was solemnized,
I have been feeling extremely harassed from the acts of my
mother-in-law and husband but I have not told you about this
till date thinking that good sense will prevail with passage of
time but, both of these intend to eliminate me. They say that your
father has not given anything in dowry. They told me that if you
bring Rs.1 lakh cash from your father then only you can stay
here, otherwise you go to your parents’ home, or else we will
eliminate you. I told them that my father is a labourer, and he
cannot arrange Rs. 1 lakh. On account of this, my mother-in-
law and husband have been beating me. They did not provide
me food for several weeks. I remained hungry thirsty and the
women of village somehow provided me food by hiding
themselves from these people. My mother-in-law even forbade
me from giving milk to my 9-month-old son and forced me to
bring firewood from jungle. Even after that, food was not
provided to me. I have been staying at my matrimonial home
throughout. You invited us several times for various functions
and ceremonies but they neither allowed me to go nor they went
themselves. They say that if you wish to go then bring Rs. One
lakh otherwise you will not be allowed to return here. They say
that your parents and family members should not come here, if
they do then it would not be good for me. My father, I do not
have any support, I am surviving here at mercy of God. I have
been staying here hungry thirsty. On account of the beatings
being given by them, I have not been keeping good health. Till
date I have concealed all these facts. My father if you can
arrange Rs. One lakh then my life can be saved, otherwise I do
not know as to what will happen with me, any untoward incident
may happen with me. Please do not tell anyone about this letter
otherwise they will eliminate me.
Yours daughter
Village Mangolpuri”
Page 21 of 42
32. The second letter, Exh. Ka-2 reads thus:
“Respected mother and father, accept Pranam from your
daughter Sudha with folded hands. Love to Krishna, Manoj,
Mukesh from their sister. I am well here and pray before
Almighty for your well-being. I need my previous letter which I
had written to you. I am not asking for the letter under pressure
from anyone. I am happy at my home. I heard that uncle Anil is
coming here and so I request you to send that letter through him.
My father, if you wish to see me happy then please send the letter
through Anil uncle. I have to stay here only. I am not asking for
it under pressure from anyone, I want that letter. If you do not
send that letter through Anil uncle then treat that your daughter
is no more. I am very well here. Don’t think more, just send the
letter only, I will wait for the same. Your son-in-law has been
behaving properly with me. If he behaves with me properly, then
everything is alright and you should not be concerned. You just
send the letter through uncle, as I need that letter and there is
no benefit in keeping that letter with you. I am alright here; you
should feel happy about it. Sonu is fine.
Your daughter Sudha.”
PRINCIPLES OF LAW GOVERNING THE APPLICABILITY OF
SECTION 106 OF THE EVIDENCE ACT
33. Section 106 of the Evidence Act, states as under:
“106. Burden of proving fact especially within knowledge.—
When any fact is especially within the knowledge of any person,
the burden of proving that fact is upon him.
Illustration
(a) When a person does an act with some intention other than
that which the character and circumstances of the act suggest,
the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket.
The burden of proving that he had a ticket is on him.”Page 22 of 42
34. Section 106 of the Evidence Act referred to above provides that when
any fact is especially within the knowledge of any person, the burden of proving
that fact is upon him. The word “especially” means facts that are pre-eminently
or exceptionally within the knowledge of the accused. The ordinary rule that
applies to the criminal trials that the onus lies on the prosecution to prove the
guilt of the accused is not in any way modified by the rule of facts embodied in
Section 106 of the Evidence Act. Section 106 of the Evidence Act is an
exception to Section 101 of the Evidence Act. Section 101 with its illustration
(a) 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 the facts which are, “especially within the knowledge
of the accused and which, he can prove without difficulty or inconvenience”.
35. In Shambhu Nath Mehra v. The State of Ajmer reported in AIR 1956
SC 404, this Court while considering the word “especially” employed in
Section 106 of the Evidence Act speaking through Vivian Bose, J., observed as
under:
“11. … The word “especially” stresses that. It means facts that
are pre-eminently or exceptionally within his knowledge. If the
section were to be interpreted otherwise, it would lead to the very
startling conclusion that in a murder case the burden lies on the
accused to prove that he did not commit the murder because who
could know better than he whether he did or did not.
Page 23 of 42
It is evident that that cannot be the intention the Privy
Council has twice refused to construe this section, as reproduced
in certain other Acts outside India, to mean that the burden lies
on an accused person to show that he did not commit the crime
for which he is tried. These cases are Attygalle v. The King, 1936
PC 169 (AIR V 23) (A) and Seneviratne v. R, 1936-3 All ER 36 at
p. 49 (B).”
36. The aforesaid decision of Shambhu Nath (supra) has been referred to
and relied upon in Nagendra Sah v. State of Bihar reported in (2021) 10 SCC
725, wherein this Court observed as under:
“22. Thus, Section 106 of the Evidence Act will apply to those
cases where the prosecution has succeeded in establishing the
facts from which a reasonable inference can be drawn regarding
the existence of certain other facts which are within the special
knowledge of the accused. When the accused fails to offer proper
explanation about the existence of said other facts, the court can
always draw an appropriate inference.
23. When a case is resting on circumstantial evidence, if the
accused fails to offer a reasonable explanation in discharge of
burden placed on him by virtue of Section 106 of the Evidence
Act, such a failure may provide an additional link to the chain of
circumstances. In a case governed by circumstantial evidence, if
the chain of circumstances which is required to be established by
the prosecution is not established, the failure of the accused to
discharge the burden under Section 106 of the Evidence Act is
not relevant at all. When the chain is not complete, falsity of the
defence is no ground to convict the accused.”
(Emphasis supplied)
37. In Tulshiram Sahadu Suryawanshi and Another v. State of
Maharashtra reported in (2012) 10 SCC 373, this Court observed as under:
“23. It is settled law that presumption of fact is a rule in law of
evidence that a fact otherwise doubtful may be inferred from
Page 24 of 42
certain other proved facts. When inferring the existence of a fact
from other set of proved facts, the court exercises a process of
reasoning and reaches a logical conclusion as the most probable
position. The above position is strengthened in view of Section
114 of the Evidence Act, 1872. It empowers the court to presume
the existence of any fact which it thinks likely to have happened.
In that process, the courts shall have regard to the common
course of natural events, human conduct, etc. in addition to the
facts of the case. In these circumstances, the principles embodied
in Section 106 of the Evidence Act can also be utilised. We make
it clear that this section is not intended to relieve the prosecution
of its burden to prove the guilt of the accused beyond reasonable
doubt, but it would apply to cases where the prosecution has
succeeded in proving facts from which a reasonable inference
can be drawn 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. It is useful to quote the
following observation in State of W.B. v. Mir Mohammad
Omar [(2000) 8 SCC 382 : 2000 SCC (Cri) 1516]: (SCC p. 393,
para 38)
“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. In Shambu Nath Mehra v. State
of Ajmer [AIR 1956 SC 404 : 1956 Cri LJ 794] the learned
Judge has stated the legal principle thus: (AIR p. 406, para
11)
‘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.
Page 25 of 42
The word “especially” stresses that. It means facts that
are pre-eminently or exceptionally within his
knowledge.’””
(Emphasis supplied)
38. In Trimukh Maroti Kirkan v. State of Maharashtra reported in (2006)
10 SCC 681, this Court was considering a similar case of homicidal death in
the confines of the house. The following observations are considered relevant
in the facts of the present case:
“14. If an offence takes place inside the privacy of a house and
in such circumstances where the assailants have all the
opportunity to plan and commit the offence at the time and in
circumstances of their choice, it will be extremely difficult for
the prosecution to lead evidence to establish the guilt of the
accused if the strict principle of circumstantial evidence, as
noticed above, is insisted upon by the courts. A Judge does not
preside over a criminal trial merely to see that no innocent man
is punished. A judge also presides to see that a guilty man does
not escape. Both are public duties. (See Stirland v. Director of
Public Prosecutions [1944 AC 315 : (1944) 2 All ER 13 (HL)]
— quoted with approval by Arijit Pasayat, J. in State of
Punjab v. Karnail Singh [(2003) 11 SCC 271 : 2004 SCC (Cri)
135].) The law does not enjoin a duty on the prosecution to lead
evidence of such character which is almost impossible to be led
or at any rate extremely difficult to be led. The duty on the
prosecution is to lead such evidence which it is capable of
leading, having regard to the facts and circumstances of the
case. Here it is necessary to keep in mind Section 106 of the
Evidence Act which says that when any fact is especially within
the knowledge of any person, the burden of proving that fact is
upon him. Illustration (b) appended to this section throws some
light on the content and scope of this provision and it reads:
“(b) A is charged with travelling on a railway without
ticket. The burden of proving that he had a ticket is on
him.”Page 26 of 42
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.
xxx xxx xxx
22. Where an accused is alleged to have committed the murder
of his wife and the prosecution succeeds in leading evidence to
show that shortly before the commission of crime they were seen
together or the offence takes place in the dwelling home where
the husband also normally resided, it has been consistently held
that if the accused does not offer any explanation how the wife
received injuries or offers an explanation which is found to be
false, it is a strong circumstance which indicates that he is
responsible for commission of the crime. …”
(Emphasis supplied)
39. The question of burden of proof, where some facts are within the
personal knowledge of the accused, was examined by this Court in the case of
State of W.B. v. Mir Mohammad Omar and Others reported in (2000) 8 SCC
382. In this case, the assailants forcibly dragged the deceased from the house
where he was taking shelter on account of the fear of the accused, and took him
away at about 2:30 in the night. The next day in the morning, his mangled body
was found lying in the hospital. The trial court convicted the accused under
Page 27 of 42
Section 364, read with Section 34 of the IPC, and sentenced them to ten years
rigorous imprisonment. The accused preferred an appeal against their
conviction before the High Court and the State also filed an appeal challenging
the acquittal of the accused for the charge of murder. The accused had not given
any explanation as to what happened to the deceased after he was abducted by
them. The Sessions Judge, after referring to the law on circumstantial evidence,
had observed that there was a missing link in the chain of evidence after the
deceased was last seen together with the accused persons, and the discovery of
the dead body in the hospital, and concluded that the prosecution had failed to
establish the charge of murder against the accused persons beyond any
reasonable doubt. This Court took note of the provisions of Section 106 of the
Evidence Act, and laid down the following principles in paras 31 to 34 of the
report:
“31. The pristine rule that the burden of proof is on the
prosecution to prove the guilt of the accused should not be taken
as a fossilised doctrine as though it admits no process of
intelligent reasoning. The doctrine of presumption is not alien to
the above rule, nor would it impair the temper of the rule. On the
other hand, if the traditional rule relating to burden of proof of
the prosecution is allowed to be wrapped in pedantic coverage,
the offenders in serious offences would be the major beneficiaries
and the society would be the casualty.
32. In this case, when the prosecution succeeded in establishing
the afore-narrated circumstances, the court has to presume the
existence of certain facts. Presumption is a course recognised by
the law for the court to rely on in conditions such as this.
Page 28 of 42
33. Presumption of fact is an inference as to the existence of one
fact from the existence of some other facts, unless the truth of
such inference is disproved. Presumption of fact is a rule in law
of evidence that a fact otherwise doubtful may be inferred from
certain other proved facts. When inferring the existence of a fact
from other set of proved facts, the court exercises a process of
reasoning and reaches a logical conclusion as the most probable
position. The above principle has gained legislative recognition
in India when Section 114 is incorporated in the Evidence Act. It
empowers the court to presume the existence of any fact which it
thinks likely to have happened. In that process the court shall
have regard to the common course of natural events, human
conduct etc. in relation to the facts of the case.
34. When it is proved to the satisfaction of the Court that Mahesh
was abducted by the accused and they took him out of that area,
the accused alone knew what happened to him until he was with
them. If he was found murdered within a short time after the
abduction the permitted reasoning process would enable the
Court to draw the presumption that the accused have murdered
him. Such inference can be disrupted if the accused would tell the
Court what else happened to Mahesh at least until he was in their
custody.”
(Emphasis supplied)
40. Applying the aforesaid principles, this Court while maintaining the
conviction under Section 364 read with Section 34 of the IPC, reversed the
order of acquittal under Section 302 read with Section 34 of the IPC, and
convicted the accused under the said provision and sentenced them to
imprisonment for life.
41. Thus, from the aforesaid decisions of this Court, it is evident that the
court should apply Section 106 of the Evidence Act in criminal cases with care
and caution. It cannot be said that it has no application to criminal cases. The
Page 29 of 42
ordinary rule which applies to criminal trials in this country that the onus lies
on the prosecution to prove the guilt of the accused is not in any way modified
by the provisions contained in Section 106 of the Evidence Act.
42. Section 106 cannot be invoked to make up the inability of the prosecution
to produce evidence of circumstances pointing to the guilt of the accused. This
section cannot be used to support a conviction unless the prosecution has
discharged the onus by proving all the elements necessary to establish the
offence. It does not absolve the prosecution from the duty of proving that a
crime was committed even though it is a matter specifically within the
knowledge of the accused and it does not throw the burden of the accused to
show that no crime was committed. To infer the guilt of the accused from
absence of reasonable explanation in a case where the other circumstances are
not by themselves enough to call for his explanation is to relieve the prosecution
of its legitimate burden. So, until a prima facie case is established by such
evidence, the onus does not shift to the accused.
43. Section 106 obviously refers to cases where the guilt of the accused is
established on the evidence produced by the prosecution unless the accused is
able to prove some other facts especially within his knowledge which would
render the evidence of the prosecution nugatory. If in such a situation, the
accused gives an explanation which may be reasonably true in the proved
circumstances, the accused gets the benefit of reasonable doubt though he may
Page 30 of 42
not be able to prove beyond reasonable doubt the truth of the explanation. But
if the accused in such a case does not give any explanation at all or gives a false
or unacceptable explanation, this by itself is a circumstance which may well
turn the scale against him. In the language of Prof. Glanville Williams:
“All that the shifting of the evidential burden does at the final
stage of the case is to allow the jury (Court) to take into account
the silence of the accused or the absence of satisfactory
explanation appearing from his evidence.”
44. To recapitulate the foregoing : What lies at the bottom of the various
rules shifting the evidential burden or burden of introducing evidence in proof
of one’s case as opposed to the persuasive burden or burden of proof, i.e., of
proving all the issues remaining with the prosecution and which never shift is
the idea that it is impossible for the prosecution to give wholly convincing
evidence on certain issues from its own hand and it is therefore for the accused
to give evidence on them if he wishes to escape. Positive facts must always be
proved by the prosecution. But the same rule cannot always apply to negative
facts. It is not for the prosecution to anticipate and eliminate all possible
defences or circumstances which may exonerate an accused. Again, when a
person does not act with some intention other than that which the character and
circumstances of the act suggest, it is not for the prosecution to eliminate all
the other possible intentions. If the accused had a different intention that is a
fact especially within his knowledge and which he must prove (see Professor
Page 31 of 42
Glanville Williams—Proof of Guilt, Ch. 7, page 127 and following) and the
interesting discussion—para 527 negative averments and para 528—“require
affirmative counter-evidence” at page 438 and foil, of Kenny’s outlines of
Criminal Law, 17th Edn. 1958.
45. But Section 106 has no application to cases where the fact in question
having regard to its nature is such as to be capable of being known not only by
the accused but also by others if they happened to be present when it took place.
From the illustrations appended to the section, it is clear that an intention not
apparent from the character and circumstances of the act must be established as
especially within the knowledge of the person whose act is in question and the
fact that a person found travelling without a ticket was possessed of a ticket at
a stage prior in point of time to his being found without one, must be especially
within the knowledge of the traveller himself : see Section 106 of the Indian
Evidence Act, illustrations (a) and (b).
46. A manifest distinction exists between the burden of proof and the burden
of going forward with the evidence. Generally, the burden of proof upon any
affirmative proposition necessary to be established as the foundation of an issue
does not shift, but the burden of evidence or the burden of explanation may
shift from one side to the other according to the testimony. Thus, if the
prosecution has offered evidence which if believed by the court would convince
them of the accused’s guilt beyond a reasonable doubt, the accused is in a
position where he should go forward with counter-vailing evidence if he has
Page 32 of 42
such evidence. When facts are peculiarly within the knowledge of the accused,
the burden is on him to present evidence of such facts, whether the proposition
is an affirmative or negative one. He is not required to do so even though
a prima facie case has been established, for the court must still find that he is
guilty beyond a reasonable doubt before it can convict. However, the accused’s
failure to present evidence on his behalf may be regarded by the court as
confirming the conclusion indicated by the evidence presented by the
prosecution or as confirming presumptions which might have been rebutted.
Although not legally required to produce evidence on his own behalf, the
accused may therefore as a practical matter find it essential to go forward with
proof. This does not alter the burden of proof resting upon the prosecution
(Wharton’s Criminal Evidence, 12th Edn. 1955, Vol. 1, Ch. 2 p. 37 and
foil). Leland v. State reported in 343 U.S. 79096 L.Ed. 1302, Raffel v. U.S.
reported in 271 U.S. 29470 L.Ed. 1054.
WHAT IS “PRIMA FACIE CASE” IN THE CONTEXT OF SECTION 106
OF THE EVIDENCE ACT?
47. The Latin expression prima facie means “at first sight”, “at first view”,
or “based on first impression”. According, to Webster’s Third International
Dictionary (1961 Edn.), “prima facie case” means a case established by “prima
facie evidence” which in turn means “evi-Ideuce sufficient in law to raise a
presumption of fact or establish the fact in question unless rebutted”. In both
Page 33 of 42
civil and criminal law, the term is used to denote that, upon initial examination,
a legal claim has sufficient evidence to proceed to trial or judgment. In most
legal proceedings, one party (typically, the plaintiff or the prosecutor) has a
burden of proof, which requires them to present prima facie evidence for each
element of the charges against the defendant. If they cannot present prima facie
evidence, or if an opposing party introduces contradictory evidence, the initial
claim may be dismissed without any need for a response by other parties.
48. Section 106 of the Evidence Act would apply to cases where the
prosecution could be said to have succeeded in proving facts from which a
reasonable inference can be drawn regarding death.
49. The presumption of fact is an inference as to the existence of one fact
from the existence of some other facts, unless the truth of such inference is
disproved.
50. To explain what constitutes a prima facie case to make Section 106 of
the Evidence Act applicable, we should refer to the decision of this Court in
Mir Mohammad (supra), wherein this Court has observed in paras 36 and 37
respectively 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 reasonablePage 34 of 42
doubt. But the section would apply to cases where the
prosecution has succeeded in proving facts from which a
reasonable inference can be drawn 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.”
(Emphasis supplied)
51. We should also look into the decision of this Court in the case of Ram
Gulam Chaudhary and Others v. State of Bihar reported in (2001) 8 SCC 311,
wherein this Court made the following observations in para 24 as under:
“24. Even otherwise, in our view, this is a case where Section
106 of the Evidence Act would apply. Krishnanand Chaudhary
was brutally assaulted and then a chhura-blow was given on the
chest. Thus chhura-blow was given after Bijoy Chaudhary had
said “he is still alive and should be killed”. The appellants then
carried away the body. What happened thereafter to
Krishnanand Chaudhary is especially within the knowledge of
the appellants. The appellants have given no explanation as to
what they did after they took away the body. Krishnanand
Chaudhary has not been since seen alive. In the absence of an
explanation, and considering the fact that the appellants were
suspecting the boy to have kidnapped and killed the child of the
family of the appellants, it was for the appellants to have
explained what they did with him after they took him away.
When the abductors withheld that information from the court,
there is every justification for drawing the inference that they
had murdered the boy. Even though Section 106 of the Evidence
Act may not be 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 like the present, where the
prosecution has succeeded in proving facts from which a
reasonable inference can be drawn regarding death. The
appellants by virtue of their special knowledge must offer an
explanation which might lead the Court to draw a different
inference. We, therefore, see no substance in this submission of
Mr Mishra.” (Emphasis supplied)Page 35 of 42
52. In the case on hand it has been established or rather proved to the
satisfaction of the court that the deceased was in company of her husband i.e.,
the appellant-convict at a point of time when something went wrong with her
health and therefore, in such circumstances the appellant-convict alone knew
what happened to her until she was with him.
FAILURE ON THE PART OF THE APPELLANT-CONVICT IN
OFFERING ANY PLAUSIBLE EXPLANATION IN HIS FURTHER
STATEMENT RECORDED UNDER SECTION 313 OF THE CRPC
53. We take notice of the fact that the appellant-convict (husband) has not
explained in any manner as to what had actually happened to his wife more
particularly when it is not in dispute that the appellant-convict was in company
of his wife i.e., deceased. It is important to bear in mind that the deceased died
on account of poisoning. The poison which was detected in the viscera was
found to be “aluminium phosphide”. Although, the appellant-convict tried to
project a picture that no sooner the deceased fell sick than he immediately took
her to the Sanjay Gandhi Hospital at Delhi, yet, there is no evidence worth the
name in this regard. The appellant-convict was expected to lead some evidence
as to what had transpired at the Sanjay Gandhi Hospital. He has maintained a
complete silence. It is only the appellant-convict who could have explained in
what circumstances and in what manner he had taken his wife to the Sanjay
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Gandhi Hospital and who attended his wife at the hospital. If it is his case, that
his wife was declared dead on being brought at the hospital then it is difficult
to believe that the hospital authorities allowed the appellant to carry the dead
body back home without completing the legal formalities.
54. In the aforesaid context, we must look into the decision of this Court in
the case of Deonandan Mishra v. The State of Bihar reported in AIR 1955 SC
801. In the said decision, there is a very important passage in which, the learned
Judges deal with the effect of failure of the accused to offer any explanation for
circumstances appearing in evidence against him in a prosecution based upon
circumstantial evidence. At the cost of repetition, the law is very clear that the
accused is not bound to offer any explanation, that there is no burden cast upon
him to do so and that the onus of proof does not shift in respect of the vital
matter of guilt at any stage of a criminal trial. But as stated by this Court:
“It is true that in a case of circumstantial evidence not only
should the various links in the chain of evidence be clearly
established, but the completed chain must be such as to rule out
a reasonable likelihood of the innocence of the accused. But in a
case where the various links have been satisfactorily made out
and the circumstances point to the accused as the probable
assailant, with reasonable definiteness and in proximity to the
deceased as regards time and situation, and he offers no
explanation, which, if accepted, though not proved, would afford
a reasonable basis for a conclusion on the entire case consistent
with his innocence, such absence of explanation or false
explanation would itself be an additional link which completes
the chain.” (Emphasis supplied)
55. In our view, the aforesaid passage applies with great force to the facts
and circumstances of the present case.
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56. Even where there are facts especially within the knowledge of the
accused, which could throw a light upon his guilt or innocence, as the case may
be, the accused is not bound to allege them or to prove them. But it is not as if
the section is automatically inapplicable to the criminal trials, for, if that had
been the case, the Legislature would certainly have so enacted. We consider the
true rule to be that Section 106 does not cast any burden upon an accused in a
criminal trial, but that, where the accused throws no light at all upon the facts
which ought to be especially within his knowledge, and which could support
any theory of hypothesis compatible with his innocence, the Court can also
consider his failure to adduce any explanation, in consonance with the principle
of the passage in Deonandan Mishra (supra), which we have already set forth.
The matter has been put in this form, with reference to Section 106 of
the Evidence Act, in Smith v. R. reported in 1918 A.I.R. Mad. 111, namely,
that if the accused is in a position to explain the only alternative theory to his
guilt, the absence of explanation could be taken into account. In the present
case, taking the proved facts together, we are unable even to speculate about
any alternative theory which is compatible with the innocence of the accused.
57. In the aforesaid context, we may also refer to and rely on a decision of
this Court in Kalu alias Laxminarayan v. State of Madhya Pradesh reported
in (2019) 10 SCC 211, wherein this Court after referring to its various other
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decisions on the applicability of Section 106 of the Evidence Act observed as
under:
“16. In view of our conclusion that the prosecution has clearly
established a prima facie case, the precedents cited on behalf of
the appellant are not considered relevant in the facts of the
present case. Once the prosecution established a prima facie
case, the appellant was obliged to furnish some explanation
under Section 313 CrPC with regard to the circumstances under
which the deceased met an unnatural death inside the house.
His failure to offer any explanation whatsoever therefore leaves
no doubt for the conclusion of his being the assailant of the
deceased.”
(Emphasis supplied)
58. We should also look into the decision of this Court in the case of Sawal
Das v. State of Bihar reported in (1974) 4 SCC 193. In the said case the trial
court had come to the conclusion that, upon the established circumstances listed
above, no other inference was left open to the Court except that the appellant
and his father and stepmother had conjointly committed the murder of the
deceased Smt. Chanda Devi on the morning of 28.05.1965 and that the
appellant and his father had then hastily and stealthily disposed off the body in
order to conceal the commission of the offence. It had also taken into account,
in coming to this conclusion, the fact that the appellant had unsuccessfully set
up a plea, in his written statement, that, Smt. Chanda Devi, who was alleged by
him to be wearing a nylon Saree said to have caught fire accidentally while she
was using a kerosene stove in her room, died of extensive burns on her body
and collapsed. The appellant had alleged that Smt. Chanda Devi was debilitated
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and kept bad health due to frequent pregnancies and was also suffering from
asthma, a weak heart, and abdominal complaints. She had given birth to six
children.
59. In view of the aforesaid facts, this Court held as under:
“8. We think that the burden of proving the plea that Smt.
Chanda Devi died in the manner alleged by the appellant lay
upon the appellant. This is clear from the provisions of Sections
103 and 106 of the Indian Evidence Act. Both the trial Court
and the High Court had rightly pointed out that the appellant
had miserably failed to give credible or substantial evidence of
any facts or circumstances which could support the pleas that
Smt. Chanda Devi met her death because her Nylon Saree had
accidentally caught fire from a kerosene stove. The trial Court
had rightly observed that the mere fact that some witnesses had
seen some smoke emerging from the room, with a kitchen
nearby at a time when food was likely to be cooked, could not
indicate that Smt. Chanda Devi’s saree had caught fire. Neither
the murdered woman nor the appellant nor any member of his
family was shown to have run about or called for help against
a fire.
9. Learned Counsel for the appellant contended that Section
106 of the Evidence Act could not be called in aid by the
prosecution because that section applies only where a fact
relating to the actual commission of the offence is within the
special knowledge of the accused, such as the circumstances in
which or the intention with which an accused did a particular
act alleged to constitute an offence. The language of Section 106
of the Evidence Act does not, in our opinion, warrant putting
such a narrow construction upon it. This Court held
in Gurcharan Singh v. State of Punjab [AIR 1956 SC 460 :
(1956) Cri LJ 827] that the burden of proving a plea specifically
set up by an accused, which may absolve him from criminal
liability, certainly lies upon him. It is a different matter that the
quantum of evidence by which he may succeed in discharging
his burden of creating a reasonable belief, that circumstance,
absolving him from criminal liability may have existed, is lower
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than the burden resting upon the prosecution to establish the
guilt of an accused beyond reasonable doubt.
10. Neither an application of Section 103 nor of 106 of the
Evidence Act could, however, absolve the prosecution from the
duty of discharging its general or primary burden of proving the
prosecution case beyond reasonable doubt. It is only when the
prosecution has led evidence which, if believed, will sustain a
conviction, or, which makes out a prima facie case, that the
question arises of considering facts of which the burden of proof
may lie upon the accused. The crucial question in the case
before us is : Has the prosecution discharged its initial or
general and primary burden of proving the guilt of the appellant
beyond reasonable doubt?”
(Emphasis supplied)
60. We also pose the very same question like the one posed in Sawal Das
(supra) referred to above, “has the prosecution discharged its initial or general
and primary burden of proving the guilt of the appellants beyond reasonable
doubt?”
61. We are of the view that the circumstances narrated by us in para 28 of
this judgment constitute more than a prima facie case to enable the prosecution
to invoke Section 106 of the Evidence Act and shift the burden on the accused
husband to explain what had actually happened on the date his wife died.
62. These appeals remind us of what this Court observed in the case of
Dharam Das Wadhwani v. State of Uttar Pradesh: “The rule of benefit of
reasonable doubt does not imply a frail willow bending to every whiff of
hesitancy. Judges are made of sterner stuff and must take a practical view of
legitimate inferences flowing from evidence, circumstantial or direct.” The role
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of courts in such circumstances assumes greater importance and it is expected
that the courts would deal with such cases in a more realistic manner and not
allow the criminals to escape on account of procedural technicalities,
perfunctory investigation or insignificant lacunas in the evidence as otherwise
the criminals would receive encouragement and the victims of crime would be
totally discouraged by the crime going unpunished. The courts are expected to
be sensitive in cases involving crime against women.
63. In the result, both the appeals fail and are hereby dismissed.
64. However, as Maheshwari Devi (mother-in-law) appellant of Criminal
Appeal No. 2430 of 2014 has been convicted only for the offence punishable
under Section 498A of the IPC, we reduce her sentence to the period already
undergone. Even otherwise, she is on bail. Maheshwari Devi need not now
surrender. Her bail bonds stand discharged.
65. Pending applications if any shall stand disposed of.
…………………………………..J.
(J.B. Pardiwala)
………………………………….J.
(Prashant Kumar Mishra)
New Delhi;
Date: October 06, 2023.
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