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Gulab Chand vs State on 21 December, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN
JODHPUR

D.B. Criminal Appeal No. 247/2013

Gulab Chand S/o Ramchandra Prajapat, R/o Kumharon Ka
Bhatta, Udaipur (Raj.).
(At present lodged at Central Jail Udaipur)
—-Appellant
Versus
State of Rajasthan.
—-Respondent

For Appellant(s) : Mr. Anuj Sahlot.
For Respondent(s) : Mr. C.S. Ojha, Public Prosecutor.

HON’BLE MR. JUSTICE SANDEEP MEHTA
HON’BLE MR. JUSTICE VINIT KUMAR MATHUR

Judgment

Date of Judgment: 21/12/2018

(BY THE COURT: PER HON’BLE MEHTA, J.)

Through this appeal under Section 374(2) Cr.P.C., the

appellant convict Gulab Chand has approached this Court for

assailing the judgment dated 05.02.2013 passed by the learned

Additional Sessions Judge No.5, Udaipur in Sessions Case

No.147/2012 convicting and sentencing the appellant as below:

Offences Sentences Fine Fine Default
sentences
Under Life Imprisonment Rs.2,000/- 15 Days’ Simple
Section Imprisonment
302 IPC

Under Six Months Simple Rs.500/- 7 Days’ Simple
Section Imprisonment Imprisonment
309 IPC
(2 of 12) [CRLA-247/2013]

Under Two Years’ Rigorous Rs.1,000/- 15 Days’ Simple
Section Imprisonment Imprisonment
498A IPC
Under Two Years’ Rigorous Rs.500/- 15 Days’ Simple
Section Imprisonment Imprisonment
4/25 of the
Arms Act

All the sentences were ordered to run concurrently.

Facts in brief are that Chiranji Lal Prajapat lodged a report

(Ex.P/12) to the SHO, Police Station Bhupalpura, District Udaipur

at the mortuary Udaipur on 27.07.2010 at about 01.00 pm.

alleging inter alia that he was sleeping in his house when his

neighbour Sharda wife of Ramchandra came around and

complained that her son Gulab was beating his wife Smt.

Ranjeeta. On this, Chiranjilal (first informant) and Sharda

alongwith Babulal reached the house of Gulab and saw that Gulab

was assaulting his wife Smt. Ranjeeta with a sword. Her blood was

streaming all around the room. As soon as Gulab saw the first

informant, he tried to kill himself with the sword by striking it on

his own neck. The first informant mustered courage to snatch the

sword from Gulab and in this effort, he himself received injury on

his right hand finger. Gulab’s elder brother Prakash also reached

there. Gulab fell unconscious due to injury received on his neck.

Ranjeeta received grave sword injuries on her neck and face etc.

which were inflicted by Gulab Chand. The first informant, Gulab’s

brother Prakash and Babulal, took Gulab as well as Ranjeeta to

Udaipur Hospital where the lady was declared dead. Gulab Chand,

who tried to commit suicide after killing his wife, was admitted in

the hospital and was undergoing treatment. On the basis of this

report, an FIR No.201/2010 was registered at the Police Station
(3 of 12) [CRLA-247/2013]

Bhupalpura for the offences under Sections 302 and 309 IPC and

investigation commenced.

After completing investigation, charge-sheet was filed

against the appellant for the offences under Sections 302, 309 and

498A IPC and Section 4/25 of the Indian Arms Act in the Court of

the Judicial Magistrate No.2, City (South), Udaipur from where,

the case was committed to the Sessions Judge, Udaipur who

transferred it for trial to the Court of Additional Sessions Judge,

No.5, Udaipur for trial. The trial court framed charges against the

appellant in the above terms. He pleaded not guilty and claimed

trial. The prosecution examined as many as 22 witnesses in

support of its case and exhibited 39 documents. Upon being

questioned under Section 313 Cr.P.C., the accused denied the

prosecution allegations but did not lead any evidence in defence.

Upon conclusion of trial, the trial court convicted and sentenced

the appellant as above. Hence this appeal.

Learned counsel Shri Anuj Sahlot representing the appellant

vehemently and fervently urged that there is no evidence on the

record of the case so as to connect the appellant with the crime.

All the material prosecution witnesses including the first informant

did not support the prosecution story at the trial and were

declared hostile. Even the maternal relatives of the deceased

namely PW-7 Sohanlal (brother-in-law), PW–8 Gurcharan

(father), PW-9 Manoj (uncle), PW-18 Sundar Bai (mother) and

PW-19 Sonu (brother) did not support the allegation that the

accused used to maltreat the deceased. Thus, as per Shri Sahlot,

there was no motive for the appellant to have killed the deceased.

He urged that the prosecution has to stand on its own legs and

merely by latching on to the presumption available under Section
(4 of 12) [CRLA-247/2013]

106 of the Indian Evidence Act, it cannot be absolved from its

duty to prove, the primary evidence required for establishing the

guilt of the accused for such a serious offence. He placed reliance

upon the following judgments:

(i) Murlidhar Ors. vs. State of Rajasthan, reported in (2005)11

SCC 133;

(ii) Mushir Khan @ Badshah Khan Anr. vs. State of M.P.,

reported in 2010(2) CJ(Cri.) (SC) 359;

(iii) Pratap Singh vs. State of Rajasthan, reported in 2010(4) CJ

(Cri.) (Raj.) 1507; and

(iv) Parmal Singh vs. State of Rajasthan through PP, reported in

2013(2) CJ (Cri.) (Raj.) 1038;

and contended that in all these cases, Hon’ble the Apex

Court as well as the Hon’ble Rajasthan High Court, exhaustively

considered Section 106 of the Evidence Act and held that the

general rule in a criminal case is that the burden of proof is on the

prosecution and Section 106 of the Evidence Act is certainly not

intended to absolve it of that duty. On the contrary, this provision

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 upon and

means facts that are pre-eminently or exceptionally within

knowledge of the accused. He contended that in cases where, the

prosecution story is based on ocular testimony and where the eye

witnesses do not support the prosecution case, the presumption

under Section 106 of the Evidence Act cannot come to the aid of

the prosecution and discharge it from its primary duty to prove
(5 of 12) [CRLA-247/2013]

the guilt of the accused by leading positive evidence. He thus

urges that the appellant is entitled to be acquitted of the charges

while setting aside the impugned judgment.

Per contra, learned Public Prosecutor vehemently and

fervently opposed the submissions advanced by the appellant’s

counsel. He urged that the murder of Smt. Ranjeeta was

committed in secrecy of the house in which the appellant and the

deceased resided. The case involves a brutal fatal assault upon

the deceased by a sharp edged weapon viz. sword. The appellant

himself tried to cut his neck on seeing the witnesses which fact

has been deposed by Chiranji Lal (PW-4) in his examination-in-

chief. Chiranji Lal also stated that he tried to snatch the sword

from Gulab but he could not succeed. He also admitted his

signatures on the FIR (Ex.P/12). He further urged that PW-20 Dr.

Manish Kumar Sharma gave evidence regarding the sharp edged

weapon injury existing on the fingers of Chiranji Lal and the sharp

edged weapon injury found on the body of the appellant soon

after the incident. Thus, as per the learned Public Prosecutor, the

relevant admissible excerpts extracted from the evidence of

Chiranji Lal despite his turning hostile at the trial, found sufficient

corroboration from the attending circumstances which are

sufficient to draw an inference that the accused appellant was last

seen in the same room with his wife and that on seeing the

witnesses, he tried to cut his own neck by the sword in an attempt

to commit suicide. Thus, as per the learned Public Prosecutor,

once the prosecution has been successful in establishing these

facts and circumstances, the burden shifted on to the accused

appellant to explain as to how, his wife received the fatal injuries

in the very same room in which he was present and as to how he
(6 of 12) [CRLA-247/2013]

himself received the injuries thereafter. He drew the Court’s

attention to the statement of the appellant recorded by the trial

court under Section 313 Cr.P.C. wherein, the appellant, apart from

stating that he had been falsely implicated, did not set up any

defence nor did he give any explanation whatsoever to the

clinching incriminating circumstances appearing against the

prosecution evidence.

Learned Public Prosecutor also referred to the statement of

the I.O. Manjeet Singh (PW-21) who stated that a day before the

fateful incident, a quarrel took place between the appellant and

Ranjeeta who was injured in the incident. Her medical certificate

was presented by her mother-in-law Smt. Sharda and was proved

as Ex.P/35. Learned Public Prosecutor pointed out that apart from

giving a bald suggestion that the neck of Smt. Ranjeeta was cut,

the appellant did not offer any explanation in this regard and thus,

as per the learned Public Prosecutor, there is sufficient evidence

on record of the case to establish and prove that the appellant

was the only person who could have and did cause the fatal

injuries to Smt. Ranjeeta by the sword and upon being discovered

and on apprehending the consequences of his foul act, he tried to

end his own life. He thus urged that it is a fit case wherein, the

prosecution has discharged the burden cast upon it by leading

sufficient evidence requiring invocation of the presumption under

Section 106 of the Evidence Act so as to raise a presumption

which he failed to discharge the same against the appellant. On

these grounds, he called upon the Court to dismiss the appeal.

We have considered the submissions advanced at bar and

have perused and re-appreciated the evidence of the prosecution
(7 of 12) [CRLA-247/2013]

witnesses, the prosecution exhibits and the statement of the

accused recorded under Section 313 Cr.P.C. thread bare.

We are duly satisfied that the prosecution proved the

following facts by leading cogent and clinching evidence:

(i) that the appellant and his wife Smt. Ranjeeta were residing in

the same premises where the murder took place and nobody else

resided therein,

(ii) that Smt. Ranjeeta received head injury a day before the

incident as is proved from the medical certificate (Ex.P/35).

(iii) that the first informant Chiranji Lal (PW-4) stated that Gulab’s

mother called him. When he reached the place of incident, he saw

that Gulab was trying to cut his own neck. Gulab’s wife was lying

down in the room. Police came and broke the door of the room.

Gulab and Ranjeeta were taken to the hospital.

(iv) that the appellant, upon being questioned under Section 313

Cr.P.C., apart from raising a lame plea of false implication, did not

offer even a shred of explanation as to how his wife received the

fatal sword injuries in his presence and as to why, he tried to kill

himself on seeing the witnesses.

These circumstances are sufficient to satisfy the Court that

the appellant was indeed present in the room where the deceased

Ranjeeta (his wife) was hacked to death by the blows of a sharp

edged weapon. The postmortem report (Ex.P/39) and the

statement of the Medical Jurist (PW-20) establish beyond all

manner of doubt that Smt. Ranjeeta died by sharp edged weapon

blows inflicted on her neck and other parts of the body. The

presence of the appellant in the room and his endeavour to cut his

own neck in an attempt to commit suicide on seeing the first
(8 of 12) [CRLA-247/2013]

informant Chiranji Lal is also virtually undisputed because no

significant cross-examination was conducted from Shri Chiranji Lal

on this aspect.

In the backdrop of these facts, this Court has to consider

whether, despite the eye witnesses having turned hostile, the

prosecution has discharged the burden cast upon it to prove its

case beyond all reasonable doubt or not and if so, whether it can

claim the benefit of the reverse burden of proof provided under

Section 106 of the Evidence Act.

We have given our respectful consideration to the principles

enunciated in the judgments cited by the defence counsel Shri

Sahlot and find that in all these cases, the circumstances

prevailing were that the prosecution could not prove that the

relevant facts were especially within the knowledge of the accused

and thus, the applicability of Section 106 of the Evidence Act was

ruled out. In the case of Murlidhar Ors. (supra), the

prosecution did not proceed on such footing and applicability of

Section 106 was never pleaded. In that backdrop, the accused

was acquitted of the charge under Section 302 IPC while

maintaining the conviction for the offence under Section 364 IPC.

Similar circumstances prevailed in the case of Parmal Singh

(supra). In the case of Pratap Singh (supra), the facts involved

suggested that the accused were found to be in possession of

property belonging to the deceased after 16 months of the

incident and thus, the presumption under Section 106 was not

considered sufficient to hold the accused guilt for the offence.

In the case of Mushir Khan @ Badshah Khan (supra),

Hon’ble the Supreme Court held that when a murder charge is to

be proved solely on circumstantial evidence, presumption of
(9 of 12) [CRLA-247/2013]

innocence of the accused must have a dominant role. The

Supreme Court relied upon a Privy Council Judgment in the case

of Nibaran Chandra Roy vs. King Emperor- (11 CWN 1085)

wherein, it was held that the prosecution under Section 106 of the

Evidence Act may have force in civil or else criminal case.

However, we are not persuaded with the said view of the Hon’ble

Privy Council. In the case of Mushir Khan @ Badshah Khan

(supra), Hon’ble the Supreme Court was not called upon to

consider the prosecution case on the anvil of Section 106 of the

Evidence Act as the conviction of the accused was recorded on

other grounds.

The facts of the case at hand are closer to those considered

by the Hon’ble Supreme Court in the case of State of Rajasthan

vs. Thakur Singh, reported in (2014)12 SCC 211 wherein, it

was held as under:-

“22. The law, therefore, is quite well settled that the burden
of proving the guilt of an 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.

23. Applying this principle to the facts of the case, since
Dhapu Kunwar died an unnatural death in the room occupied
by her and Thakur Singh, the cause of the unnatural death
was known to Thakur Singh. There is no evidence that
anybody else had entered their room or could have entered
their room. Thakur Singh 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 did he set up any case that some other
person entered the room and caused the unnatural death of
his wife. The facts relevant to the cause of Dhapu Kunwar’s
death being known only to Thakur Singh, yet he chose not to
disclose them or to explain them. The principle laid down
in Section 106 of the Evidence Act is clearly applicable to the
facts of the case and there is, therefore, a very strong
presumption that Dhapu Kunwar was murdered by Thakur
Singh.

(10 of 12) [CRLA-247/2013]

24. It is not that Thakur Singh was obliged to prove his
innocence or prove that he had not committed any offence.
All that was required of Thakur Singh 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.

26. In our opinion, 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 Thakur Singh failed to
give any explanation whatsoever for the death of his wife by
asphyxia in his room. Moreover, the very fact that all the
relatives of Thakur Singh turned hostile clearly gives room
for suspicion and an impression that there is much more to
the case than meets the eye. Even the complainant, Himmat
Singh who squarely blamed Thakur Singh (in the FIR) for the
murder of his wife, turned hostile to the extent of denying
his relationship with Thakur Singh.”

While considering these circumstances, Hon’ble the Supreme

Court, accepted the appeal against acquittal and overturned the

acquittal of the accused which discretion is exercised in the rarest

of the rare circumstances. Similar were the facts in the case of

State of Rajasthan vs. Kashi Ram, reported in AIR 2007 SC

144 wherein also, the acquittal of the accused recorded by the

High Court was reversed by taking recourse to Section 106 of the

Evidence Act.

In the backdrop of these facts and after considering the

judgments referred to supra in detail, we are of the firm opinion

that the prosecution discharged its obligatory burden of proving

the significant circumstances viz,

(i) the accused and the deceased lived in the same room.

(ii) the deceased had received a head injury at the hands of the

accused a day prior to the fatal assault made on her.

(iii) The mother of the accused called the first informant Chiranji

Lal saying that the deceased was being assaulted by the accused

appellant.

(11 of 12) [CRLA-247/2013]

(iv) the accused panicked upon seeing the first informant, and

tried to sever his own neck in an attempt to end his own life

(v) the body of Ranjeeta was seen lying in a pool of blood in the

same room.

(vi) Nobody else other than the appellant was present in the room

at that time.

(vii) The accused failed to offer a word of explanation when put to

questioning under Section 313 Cr.P.C.

These circumstances unquestionably establish that Smt.

Ranjeeta was fatally assaulted by a sword and none other than the

accused was present in the room at that time. On being

discovered, the accused tried to sever his own neck with the

sword which he was holding. He fell down unconscious and was

taken to the hospital with Smt. Ranjeeta. Thus, without a doubt,

whatever transpired in the closed confines of the room where the

accused and his wife (the deceased) resided was especially within

his exclusive knowledge. Thus, these facts while were

unquestionably and especially within the knowledge of the accused

had to be explained by him. He miserably failed to discharge this

burden. As such, this Court is of the firm opinion that by failing to

discharge the burden cast upon him, the accused has invited the

invocation of Section 106 of Section of the Evidence Act for raising

a presumption of guilt against him. The trial court was therefore,

perfectly justified in invoking the said provision and holding the

appellant guilty for the charge under Section 302 IPC. The

impugned Judgment dated 05.02.2013 passed by the learned

Additional Sessions Judge No.5, Udaipur does not suffer from any

illegality or infirmity whatsoever warranting interference by this

Court in its appellate jurisdiction.

(12 of 12) [CRLA-247/2013]

Hence, the instant appeal is dismissed as being devoid of

merit.

(VINIT KUMAR MATHUR),J (SANDEEP MEHTA),J

tikam daiya/-

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