REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1677 OF 2010
KALU alias LAXMINARAYAN ……….APPELLANT(S)
VERSUS
STATE OF MADHYA PRADESH ……RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
The appellant, husband of the deceased, is aggrieved by
his conviction under Section 302 of the Indian Penal Code (in short,
‘SectionIPC’) affirmed by the High Court. There is no eye witness and the
case rests only on circumstantial evidence.
2. The deceased was married to the appellant approximately six
to seven years back. Both of them were living alone in the house
Signature Not Verified
Digitally signed by
ARJUN BISHT
Date: 2019.11.07
16:41:27 IST
with their minor child. On 14.10.1994, late in the evening, the
Reason:
family members of the deceased, who resided about 3540 kms.
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away, received a telephone call that their daughter had died. They
came the next morning at 06.00 AM and found the body of the
deceased in the middle room of the house, lying on the ground
covered with a white sheet. The first information report was lodged
at about 07.00 AM, the inquest report was prepared same day as
also the post mortem was done in the afternoon. The police after
completing investigation submitted charge sheet under Section 306
and Section498A, SectionIPC. During the course of the trial, considering the
nature of evidence that emerged, the Sessions Judge also added
Section 302, SectionIPC in the charges. The Sessions Judge held the
charge under Section 302 to be established as the deceased had
been strangulated to death. The High Court in appeal opined that
the deceased had been hanged to death. Both the courts have
unanimously held that the deceased did not commit suicide but
that it was a homicidal death.
3. Learned senior counsel Shri Vinay Navare, appearing for the
appellant, submitted that the deceased had committed suicide. The
conviction of the appellant under Section 302 IPC was not justified.
The appellant has been acquitted of the charge under Section 498A.
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It was impossible for the appellant to have alone forcibly hanged the
deceased from a height of 11 feet. The fact that the body was found
lying on the ground in the house, does not detract from the
appellant’s defence that she was brought down from the noose after
she committed suicide and the body laid on the ground. If the
appellant had strangulated the deceased, nothing prevented him
from concealing the dead body or cremating her in the night itself.
His conduct is not conducive of his guilt. The mere fact that the
deceased died in unnatural circumstances inside the matrimonial
home cannot by itself be sufficient to shift the onus on the
appellant under Section 106 of the Indian Evidence Act, 1872
(hereinafter called as “the Act”). The onus first lies on the
prosecution to establish a prima facie case of a homicidal death
ruling out all possibilities of a suicide. Reliance was placed on
Shambu Nath Mehra vs. The State of Ajmer, 1956 SCR 199;
Sawal Das vs. State of Bihar, (1974) 4 SCC 193 and Jose vs.
The SubInspector of Police, Koyilandy and Ors., (2016) 10 SCC
519.
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4. Shri Sunil Fernandes, learned Addl. Advocate General
appearing on behalf of the respondent State, submitted that all the
circumstances in the case inevitably point towards the guilt of the
appellant. Death was homicidal in nature. The nature of oral,
physical and medical evidence completely rules out the defence of a
suicide by the deceased.
5. We have considered the submissions on behalf of the parties
and have also gone through the evidence and other materials on
record. The deceased lived alone with the appellant and their minor
child. The evidence of the relatives of the deceased, PW 2, PW 4
and her parents PWs.6 and 8 reveal that all was not well between
the appellant and the deceased. Because of the strained relations
between them, the deceased had stayed at her parents’ home for
nearly 10 months prior to the occurrence and had returned barely a
month before the fateful day after her fatherinlaw had come to
take her back. We find no reason to disbelieve this part of evidence
of PWs. 6 and 8.
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6. PW 5 had deposed that he had seen cow dung on the hands of
the deceased indicating that she was working when the homicidal
assault had been made on her. He deposed having said so in his
statement under Section 161, SectionCr.P.C. When the omission was
pointed out to him in cross examination, he reiterated the same.
This omission in his police statement was put to PW 17, the
Investigating Officer, under Section 145, SectionCr.P.C. The witness replied
that he did not remember the statement made to him and not that
PW 5 had not made such a statement. The question was
specifically put to the appellant under Section 313, SectionCr.P.C. also, to
which he only gave a stock denial. The only defence taken by the
appellant under Section 313 Cr.P.C. was that he had been falsely
implicated. The prosecution has therefore sufficiently established
that there was cow dung on the hands of the deceased indicating
that she was engaged in house hold chores when the assault was
made.
7. The inquest report of the deceased noticed that her hair was
open and scattered, both eyes were closed and froth was coming out
of the nose and mouth, the tongue was inside and the teeth visible.
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The right hand was on the stomach and the left hand was on the
floor with the fist half open. There was a ligature mark at the
back. On turning over the body, there was blackening on the back
and in the loin area. The post mortem report estimated the age of
the deceased as 22 years and noticed the following:
a) Froth marks blood is seen at the mouth and nostrils.
The saliva is seen running out from left side of mouth
and neck is tilted to left side. Ante mortem injuries
were present. Abrasions varying in left from ¼” to ½”
and varying in width from 1/8” to 1/4” situated on
dorsum of fingers of right hand are present.
b) Abrasions on right forearm, upper dorsum signs ½”
x ½”.
c) On dissection of the subcutaneous at the ligature
mark, it is dry, and the M.M. of troches is red and
congested and contain forth tinged with blood. The
right chamber of heart contained blood and left
chamber empty. The tongue caught between teeth.
d) There is well defined ligature mark, situated above
the thyroid cartilage between larynx and chin 1” width
and ½” deep directed obliquely upwards following the
line mandible and reaching the mastoid process. The
mark is interrupted at the back. The base of the mark
is pale and hard and the margins are red and
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congested. The wound with crust and scan on left knee
which appears to 7 to 12 days old.
All the injuries were ante mortem in nature opining
that the deceased had died of asphyxia following
hanging.
8. The injuries on the person of the deceased, as noticed in the
inquest report as also in the post mortem report, are clearly
indicative of a struggle or resistance put up by the deceased in the
last hour. It is unusual that if the deceased had committed suicide
by hanging herself, her right hand would be lying on the stomach
and the left hand would be on the ground with both fists half open.
This is more of a probability if the deceased was strangulated when
life ebbed out of her slowly. The fact that the neck of the deceased
was not found stretched and elongated, considering that the body
was still fresh, rules out any possibility of suicide by the deceased.
The tongue was not protruding. Scratches and abrasions would not
be present in case of a suicide. There is no fracture or dislocation
of the bones in the neck area. The saliva was not running down the
face or chest of the deceased but had flowed out at the left of the
mouth.
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9. The High Court opined that the deceased had been hanged to
death. Suicide was ruled out as the wooden log in the room used
for storing grains from which a piece of a rope was found hanging
was 11 ft. 2 inches in height from the floor. The deceased was of
5’4” and assuming that she would stretch out another one foot six
inches it would still leave gap of 4 feet between her and the log,
therefore suicide was an impossibility. We find no reason to differ
with the reasoning. The conclusion of the High Court, to our mind,
also does not help the appellant in the defence of a suicide. The
views taken by the Trial Court and the High Court nonetheless both
point towards a homicidal death clearly. We would rather be
inclined to accept the view of the Sessions Court that the deceased
was strangulated to death as it would not also be possible for the
appellant to hang the deceased alone. The body has also been
found lying on the ground.
10. The aforesaid factors leave us satisfied that the prosecution
has been able to successfully establish a case for a homicidal death
inside the house where the deceased resided with the appellant
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alone. The conduct of the appellant, in the aforesaid background,
now becomes important. If the deceased had committed suicide, we
find it strange that the appellant laid her body on the floor after
bringing her down but did not bother to inform anyone living near
him much less the parents of the deceased. There is no evidence
that the information was conveyed to the family members of the
deceased by the appellant or at the behest of the appellant. The
appellant was also not found to be at home when her family
members came the next morning. The appellant offered no defence
whatsoever with regard to his absence the whole night and on the
contrary PW 3 attempted to build up a case of alibi on behalf of the
appellant, when he himself had taken no such defence under
Section 313, Cr.P.C.
11. The occurrence had taken place in the rural environment in
the middle of the month of October when it gets dark early.
Normally in a rural environment people return home after dusk and
life begins early with dawn. It is strange that the appellant did not
return home the whole night and was taken into custody on
21.10.1994.
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12. In the circumstances, the onus clearly shifted on the appellant
to explain the circumstances and the manner in which the deceased
met a homicidal death in the matrimonial home as it was a fact
specifically and exclusive to his knowledge. It is not the case of the
appellant that there had been an intruder in the house at night. SectionIn
Hanumant and Ors. vs. State of Madhya Pradesh, AIR 1952 SC
343, it was observed
“10. …..It is well to remember that in cases where the
evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to
be drawn should in the first instance be fully
established, and all the facts so established should be
consistent only with the hypothesis of the guilt of the
accused. Again, the circumstances should be of a
conclusive nature and tendency and they should be
such as to exclude every hypothesis but the one
proposed to be proved. In other words, there must be a
chain of evidence so far complete as not to leave any
reasonable ground for a conclusion consistent with the
innocence of the accused and it must be such as to
show that within all human probability the act must
have been done by the accused….”
13. SectionIn Tulshiram Sahadu Suryawanshi and Ors. vs. State of
Maharashtra, (2012) 10 SCC 373, this Court observed:
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“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 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 SectionState of W.B. v. Mir
Mohammad Omar
“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. SectionIn Shambhu Nath Mehra v. State
of Ajmer the learned Judge has stated the
legal principle thus:
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‘11. This lays down the general rule that in
a criminal case the burden of proof is on
the prosecution and Section 106 is certainly
not intended to relieve it of that duty. On
the contrary, it is designed to meet certain
exceptional cases in which it would be
impossible, or at any rate
disproportionately difficult, for the
prosecution to establish facts which are
“especially” within the knowledge of the
accused and which he could prove without
difficulty or inconvenience.
The word “especially” stresses that. It means
facts that are preeminently or exceptionally
within his knowledge.”
14. SectionIn Trimukh Maroti Kirkan vs. State of Maharashtra, 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
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also presides to see that a guilty man does not
escape. Both are public duties. (See Stirland v.
Director of Public Prosecutions — quoted with
approval by Arijit Pasayat, J. in SectionState of Punjab v.
Karnail Singh). 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.”
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
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there is no duty at all on an accused to offer any
explanation.
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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.”
15. 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, SectionCr.P.C. 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.
16. We find no merit in the appeal. It is dismissed. The appellant
is stated to be on bail. His bail bonds are cancelled and he is
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directed to surrender within two weeks for serving out his
remaining period of sentence.
……………………….J.
(NAVIN SINHA)
……….……………..J.
(B.R. GAVAI)
New Delhi,
November 07, 2019
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