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Neyaz Ansari vs The State Of Bihar on 23 October, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.1132 of 2019
Arising Out of PS. Case No.-438 Year-2014 Thana- MAJHAULIA District- West Champaran

NEYAZ ANSARI Son of Laddan Ansari R/o Village- Baswaria, P.S.- Bettiah
Town, present residing at Village- Semra Ghat, P.S.- Majhaulia, District- West
Champaran.

… … Appellant/s
Versus
The State of Bihar

… … Respondent/s

Appearance :

For the Appellant/s : Mr.Md. Anjum Akhter, Adv
For the Respondent/s : Mr.Syed Ashfaque Ahmad, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT

23-10-2019 Sole appellant, Neyaz Ansari being aggrieved by

judgment of conviction dated 18.01.2018 and order of sentence

dated 20.12.2018 passed by Presiding Officer, FTC-2nd, West

Champaran at Bettiah in Sessions Trial No. 584/2016 whereby

and whereunder, has been found guilty for an offence

punishable under Section 306 IPC and sentenced to undergo RI

for four years as well as to pay fine of Rs. 5000/- in default

thereof, to undergo SI for three months additionally, challenged

the same by way of preferring instant appeal.

2. Hasina Khatoon (PW 3) gave her Fardbeyan on

23.12.2014 at about 6:50 AM at her Village-Semra-Ghat before

the concerned police official disclosing therein that Nikah of her

daughter, Nusrat Jahan was performed approximately six years
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ago with Neyaz Ansari son of Laddan Ansari of Village-

Banswaria at present, Barwa, Semra-Ghat. After marriage, the

couple enjoyed congenial atmosphere for some time but, in due

course of time, Neyaz became addictive wine, whereupon, he

used to give frequent assault whenever Nusrat Jahan protested.

Further, also began to raise grievance by way of stating that at

the time of marriage, nothing was given from her Naihar in lieu

of dowry and so, instruct the mother to give cash and kind (she-

buffalo) in lieu of dowry. On account of physical/mental torture

having been exerted upon her, she also had gone to the place of

her daughter and tried to give sermon to her son-in-law but, he

did not pay heed to it. On the other hand, continued with his

lesson. Lastly, in order to save herself, in the night of

22.12.2014, Nusrat and her daughter, Nazia came to the house

of maternal grand-father of Neyaz lying at village-Semra-Ghat

who happens to be her neighbour. At 10:00 PM, after hearing

commotion, when she came out from her house, she had seen

Neyaz as well as her daughter Nusrat. Her daughter, Nusrat was

requesting her husband to go to house. She inquired from her

daughter, whereupon, she disclosed that she is instructing him to

go to house. At that very moment, Khush Mohammad, Ali

Ahmad, Gul Mohammad, Kamrul Haque, Bismillah Khatoon,
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Jamila Khatoon and Usha Ansari were present who have spoken

to Neyaz that they have also their wife but, their wife did not

follow them outside from their house. It is better to kill the lady.

Even then, she anyhow managed to send her daughter to her

house. Again, she heard uproar at about 11:00 PM in the night

whereupon, she immediately, rushed to the house of Nusrat

where she found her daughter, Nusrat in half burnt condition.

She had seen Neyaz and Ali Ahmad untying the string. Khush

Mohammad was digging and found them along with Gul

Mohammad, Kamrul Haque and others in a way to bury. Seeing

her, they all ran therefrom. So, she apprehended that on account

of non fulfillment of demand of dowry, her daughter has been

set ablazed.

3. After registration of Majhaulia PS Case No.

438/2014, investigation commenced and after concluding the

same, charge-sheet has been submitted only against the

appellant exonerating the others, facilitating the trial meeting

with ultimate result, subject matter of instant appeal.

4. Defence case as is evident from the mode of cross-

examination as well as statement recorded under Section 313

CrPC is that of complete denial. It has further been pleaded that

the victim died of accidental fire which, she caught during
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course of cooking. Furthermore, three DWs have been examined

on that very score.

5. In order to substantiate its case, the prosecution

has examined altogether nine PWs who are PW-1, Saheb Alam,

PW-2, Shamshad Alam, PW-3, Hasina Khatoon, PW-4, Khairati

Ansari, PW-5, Naziya Khatoon, PW-6, Naushad Alam, PW-7,

Vinod Das, PW-8, Dr. Ashok Kumar Choudhary, and PW-9,

Sabrul Nesha. Side by side, has also exhibited Ext-1, Inquest

Report, Ext-2, Postmortem Report. Three DWs namely, DW-1,

Md. Imteyaz, DW-2, Md. Nasim Akhtar and DW-3, Bholi

Ansari have been examined. However, no documentary

evidence has been adduced on behalf of defence.

6. Although, appellant was charged for an offence

punishable under Section 304B of the IPC, 498A, 302 SectionIPC but,

during course of consideration of submission having at the end

of rival party and, after going through the judgment impugned,

more particularly, finding recorded by the learned lower court

under para-16 and 17, it has been perceived that learned lower

court had already made up its mind to convict the appellant

under Section 306 of the IPC and, should be inflicted with

lenient punishment otherwise, the learned lower court would

have properly considered evidence, more particularly, whether
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an offence under Section 302 IPC is made out or under Section

306 IPC. The finding of the learned lower court on the score of

non presence of Section 304B of the IPC is found proper as

based upon the materials available on the record.

7. So, a question has arisen whether there happens to

be miscarriage of justice on account of appreciation of the

materials in an inappropriate manner and, as an example, the

relevant passage of the para-17 of the judgment is quoted

below:-

” Similarly, if the entire evidence is
appreciated in the light of the evidence of the
I.O. and doctor, I find that it is also a case which
does not fall within four corners of the definition
of causing murder. Hence, offence under Section
302 IPC has also not been proved against the
accused.”

8. Therefore, apart from arguing the appeal on its

merit, the learned counsel has also been requested to assist the

court how to deal with the situation so prevailing on account of

non application of judicial mind, and further, whether the

approach of the lower court comes within ambit of miscarriage

of justice, justifying de novo trial, or would justify setting aside

the judgment impugned, be allowed by recording acquittal of

the appellant on account of failure of justice, having at the end

of lower court, for which appellant was not responsible.
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9. Learned counsel for the appellant has submitted

that the court has after proper application of the materials

available on record concluded by way of negativating presence

of Section 302 IPC as well as 304B SectionIPC as none of the

ingredients attracting those sections found properly

substantiated, and in likewise manner, should have also

concluded even to the extent of Section 306 of the IPC as the

prosecution failed to substantiate its case, whereupon, would

have acquitted the appellant. It has also been submitted that

there happens to be appreciation of the fact properly by the

lower court while recording finding concerning Section 302 IPC

nor under Section 304B IPC, save and except that the learned

P.O. could not arrange the finding in chronological manner.

From the judgment impugned, it is evident that irrespective of

the fact that no case under Section 306 IPC is made out, the

learned lower court convicted the appellant only because there

happens to be death of deceased.

10. Further, elaborating the issue, it has been

submitted that there happens to be initial prosecution version

that in the house itself a grave was being dug and, there was

preparation for burying the dead body. The persons so named

having engaged therefor, have been exonerated which the
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prosecution had accepted and so, the major portion of the

allegation is found cindered, apart from the fact that the I.O.

harpooned the prosecution version through objective finding

relating to the P.O. Now, so far appellant is concerned, it is

apparent that the version of the prosecution has got no

truthfulness in the background of the fact that Appellant’s

Nani’s house, as disclosed lie adjacent to the house of the

informant and, from the evidence of the I.O., PW-7, it is evident

that the same was not the actual P.O. rather P.O. was the house

of the appellant, having at a distance and manner whereunder

prosecution party shown their appearance is a circumstance,

needs proper consideration, more particularly, in the background

of the absence of an independent person to come forward to

justify. Furthermore, the cause, demand of she-buffalo, having

so alleged suffers from vagueness to such extent that it

completely obviated 304B, and in likewise manner, has its

impact relating to Section 306 IPC, more particularly, in the

background of the fact that prosecution has kept silence over

pointing out any activity at the end of appellant provoking the

deceased to commit suicide. That means to say, the prosecution

as well as the court below failed to identify the appellant to be

abettor, hence no conviction would be for an offence punishable
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under Section 306 IPC.

11. In an alternative, it has also been submitted that

the dead body was found in another house lying in the same

village and so, there should have been positive evidence at the

end of the prosecution regarding shifting of the deceased from

the Nani’s place to her own place whereupon prosecution case is

lacking. The prosecution has no evidence on that very score and

rightly been, because of the fact that deceased had not come to

the place of Nani of the appellant. As is evident by them, the

deceased had died during course of cooking as she caught hold

of fire accidentally and on that very score, three DWs

consistently deposed. So, in any view of the matter, the

judgment of conviction and sentence could not survive.

12. Learned APP has fairly submitted that the learned

lower court had not done proper exercise during course of

scrutinizing the evidence save and except simply copying the

same. Had there been proper mode of evaluation of the

evidence, then in that circumstance, the result would have been

different than the present one, because of the fact that from the

evidence available on the record, the alternative offence is found

duly substantiated and for that, the approach of the learned

lower court happens to be averse to the judicial propriety. That
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being so, it is a fit case whereunder after setting aside the

judgment impugned, the matter be remitted back to the learned

lower court to consider the material available on the record

afresh, in accordance with law, after hearing both sides.

13. From the judgment impugned, it is evident that

from paragraphs 5 to 15, the evidences of the witnesses have

been copied and then at para-16 there happens to be rival

submission and para-17 is the finding of the learned lower court.

After going through para-17, it is evident that not even a word

spoken by the witnesses have been discussed, appreciated,

evaluated in order to trace out why Section 304B IPC is not

made out and in likewise manner why Section 302 IPC is not

made out and how Section 306 of the IPC is made out. Reason

is the life and soul of the judgment and so, the finding should

have well reasoned. Because of the fact that no reason has been

assigned, therefore, the judgment is found deficient one on the

score of non compliance of Sub-Section 1 of Section 354 of the

SectionCrPC.

14. SectionIn State of Maharashtra vs. Salman Salim

Khan and Ors as reported in 2004 CrLJ 920, it has been held as

follows:-

“6. It is the case of the prosecution that on
the night intervening the 27th and 28th
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September, 2002, the respondent drove his car
under the influence of alcohol, in a rash manner
and caused the death of one person and caused
grievous injuries to four others who happened to
be sleeping on the footpath. A few days later the
chargesheet filed as above, came to be modified
based on the additional statement of the
complainant, and instead of Section 304A IPC
Section 304 Part II, SectionIPC was substituted which is
an offence exclusively triable by a Court of
Sessions hence the learned Magistrate who took
cognizance of the offence, committed the said
case to the Court of Sessions for trial.”

15. The same view has also been reiterated in the

case of SectionPrasad @ Hari Prasad Acharya v. State of Karnataka

as reported in AIR 2009 SC 1911.

16. PW-8 is the doctor. He had conducted

postmortem over the dead body of the deceased and found the

following ante-mortem injury:-

(i) Burn injury all over body except both
leg lower part both sole.

(ii) sign of inflammation present in both
leg. Body was looking blackish with sign of
inflammation.

On dissection above mentioned ante
mortem burn was confirmed. Some bleb with fluid
present over affected area. Trachea congested. All
abdominal viscera were found congested. Stomach
empty. Heart-left full and right empty. All injuries
were ante-mortem caused by fire. Cause of death-
Shock due to burn wound. Rigor mortis present in
both limbs.

17. During cross-examination, nothing substantial
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has been elicited at the end of appellant, much less there

happens to be an admission over cause of death. At the present

moment, presence of carbon particles (soot) in the trachea

though has got vital role in deciding whether deceased was alive

during course of burning, whereupon both the parties lost their

attention.

18. PW-7 is the I.O. He has stated that on

23.12.2014, he was posted at Majaulia PS as ASI. He was

entrusted with the investigation of this case by the Officer In-

charge. He had inspected the place of occurrence as pointed out

by the informant which happens to be a thatched house situated

at southern flank of village, Semra Ghat having northern front.

The hut had two rooms. He had not found any incriminating

object there. He shown boundary of the house North- Mango

orchard of Munna Ansari, South-Part of the land of accused,

East-House of Kamruddin and West-Land of Mansoor Ansari.

Recorded statement of the witnesses. Prepared inquest report.

Conducted raid, accused were found absconding, recorded

statement of other witnesses, received supervision note,

received postmortem report and then, after concluding

investigation, submitted charge-sheet. During cross-

examination, he has stated that during course of preparation of
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inquest report, he had not seized the burnt string, chair nor he

mentioned the same in the case diary. He had gone inside the

house and, he had not found any sign of burn inside the house.

He had not found ditch having been dug inside the house. At

para-3, there happens to be contradiction relating to witness,

Shamshad Alam. Para-4 and 5 are that of informant, Hasina

Khatoon, Nazia Khantoon.

19. So, from the evidence of the doctor it has become

abundantly clear that the deceased died of burn injury which has

also not been controverted by the appellant who further tried to

explain by way of proposing that it was an accidental fire which

deceased caught during course of cooking but, from the

evidence of the I.O., it is evident that he had not found any sign

of burn at the place where inquest was prepared, that means to

say, inside the house of the appellant. Furthermore, he had not

found earthen stove nor firewood nay any other kind of stove.

Furthermore, from cross-examination of the I.O., it is evident

that he was not even suggested over presence of sign of flame,

earthen stove, which he intentionally suppressed. That means to

say, the objective finding having at the end of I.O. relating to

P.O. goes out of controversy. It is needless to say, that appellant

has not denied that the house from where the dead body was
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recovered does not belong to him. It is not the case of the

appellant that the dead body was forcibly or in deceitful manner

thrusted upon him rather tried to explain the death of the

deceased by accidental burn while cooking by way of

examining three DWs.

20. DW 1 has stated that Md. Neyaz happens to be

his full brother. His wife was Nusrat Jahan who died four years

ago on account of burn which she sustained during course of

cooking. Children who were present there, raised alarm. Neyaz

at that very time was in the village. He also came and then, they

all extinguished the fire. Neyaz had love marriage and so,

neither at the time of marriage nor subsequently thereof, there

was demand of dowry nor, the victim was ever tortured on that

very pretext. During cross-examination, he has stated that he

reached at the house of his brother after hearing uproar. Naihar

of the deceased lies at a distance of 10 Bigha. He has further

stated that he happens to be Pairvikar of this case and then had

denied the suggestion that in a way to shield his brother, he

deposed falsely.

21. DW-2 has stated that on the alleged date and time

of the occurrence at about 8.30 PM while he was coming from

market, he saw the house of Neyaz on fire and the female folks
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of the surroundings were raising hue and cry. They had gone

there and extinguished the fire. Wife of Neyaz was cooking

through leaves of sugarcane. At that very time, Neyaz was not

present there. He came subsequently. During cross-examination,

he had stated that when he reached at the P.O., he had seen the

female folks including Hasina Khatoon (informant) raising hue

and cry. Non was along with him. He remained for half an hour.

Mukhia, Sheikh Mushtaque came subsequently.

22. DW-3 has stated that on the alleged date and time

of occurrence while he was going towards his Khalihan at about

8:00-9:00 PM, he heard sound of uproar coming from house of

Neyaz whereupon, he rushed and found the house under fire.

Nasim, Imteyaz and others were engaged in extinguishing fire.

At the time of cooking fire had spread over. Neyaz came

subsequently. During cross-examination, he has stated that

within two minutes, fire was extinguished. He has not sustained

any kind of burn. Anybody’s hand was burnt or not, he is unable

to say. He happens to be maternal uncle of Neyaz.

23. When evidence of DWs have been gone through,

it is evident that they have not succeeded to explain the death by

burn, during course of cooking as DW-2 and DW-3 have stated

that house was under fire, is completely controverted by the
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DW-1 coupled with the objective finding of the I.O.. The I.O.

was not even suggested that house was burnt, earthen stove was

there, objective finding happens to be collusive one. These

circumstances have to be seen with the evidence of the

remaining PWs and the most important witness on this very

score happens to be that of the daughter of the deceased as well

as accused, who has been examined as PW-5, namely Nazia

Khatoon, a minor girl. Before her examination, her mental IQ

has properly been tested and then observing that she was fit to

depose, allowed to depose. During her examination-in-chief, she

has stated that her mother had gone to the place of maternal

grand-mother to give meal. She had also accompanied her.

While they were returning and during course thereof, reached

near Darwaza of Noor Mohammad, they saw, Neyaz (her

father), Gul Mohammad, Khush Mohammad, Kamrul Haque,

Usha Ansari, Bismillah and Jamila, whereupon, her mother

inquired from her Papa, ‘what are you doing here?’. ‘accompany

them to the house’. Her father had disclosed that carry the child

to the house. Bismillah and Jamila both escorted to her house.

All of them came at her house and then, they dragged her

mother towards the back of her house and then, they all throttled

her till death. Thereafter, they lifted her mother and put her over
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a chair, tied her down with the chair and then after sprinkling

K.Oil, set her on fire. Gul Mohammad lit the fire. She began to

cry. She tried to rush to the place of her maternal uncle but

Jamila caught hold of her and gagged her mouth. All the

accused were engaged differently during course thereof, Khush

Mohammad began to dig the grave and rest of the accused were

to put the dead body into the grave, anyhow, she got an

opportunity, rushed to her Nani, shouting that ‘her mother has

been murdered.’ whereupon, Nani, Mamu along with other

villagers arrived, seeing whom, the accused persons ran away.

Her mother was taken to the hospital by her Nani. After some

time, the dead body of mother has been brought back. Police

also came before whom, her Nani had given her Fardbeyan. The

police had not recorded her statement. Then had disclosed that

on account of non fulfillment of demand of dowry, she-buffalo,

her mother has been killed. During cross-examination, she has

stated that she is residing at the place of one Khurshid for the

last three years. She has come from that place. In para-2, she has

stated that her Nani has kept her at the place of Wakil Saheb.

She has further stated that her Nani has brought to depose. In

para-3, she has stated that she does not know the original place

of residence of her father. Her father and uncle both reside here.
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Then stated that the place is known as Bhusuk Tola. She used to

visit place of her Nani. Then she denied the suggestion that

there happens to be some sort of strained relationship in

between her father and maternal uncle relating to Gharari land.

Then has stated that her mother met with her father at the

Darwaza of Gul Mohammad. At that very time, they both had

not indulged in an altercation. Bismillah and Jamila after

carrying them to the house, remained there. At the time when

accused persons were taking away her mother to the back of her

house, Bismillah and Jamila had also joined them. She had not

raised alarm. They had committed murder of her mother by

throttling. At that very time also, she could not raise alarm, as

her mouth was gagged. She is unable to say how much time

thereafter, they had kept her mother over chair. At the time when

her mother was under flame, none of the villagers came. She is

unable to say in which hospital they had gone but, Nani had

taken away her mummy over tempo. She had also accompanied.

When police came, she was present at her house. Police had

recorded her statement. Then there happens to be contradiction.

It is not a fact that during course of statement before the police,

she had stated that her father attempted to extinguish the fire.

Then she stated that she had stated before the police (whatever
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been stated) during course of examination-in-chief. Then had

stated that grave was dug behind the back of the house. Then

has said that she is not remembering whether that grave was

shown to the I.O. or not. Then, she denied the suggestion that

her mother had caught fire during course of cooking and, she

has deposed falsely.

24. PW 4 has simply stated that on hearing uproar, he

rushed to the house of appellant where he found the wife of

Neyaz dead on account of burn. Neyaz came subsequently.

During cross-examination, he has stated that the marriage has

been solemnized more than 9-10 years ago. It was love

marriage. There was no demand of dowry.

25. PW-9 has simply stated that the occurrence is of

about three years ago. At that very time, she was sleeping at her

house. Then said that she did not know about the occurrence

whereupon, she was declared hostile.

26. PW-1 is the brother of the deceased. He during

his examination-in-chief has stated that Neyaz is his brother-in-

law. Nusrat Jahan was his sister. Marriage was solemnized about

six years ago from the date of occurrence. After marriage, his

sister had gone to Sasural where Neyaz began to torture her in

the background of non fulfillment of demand of dowry, i.e. one
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she-buffalo. His sister used to inform. His mother had disclosed

that at the present moment, she is unable to provide but in due

course of time, might be given. On account of non fulfillment of

demand, his sister was frequently subjected to torture and

cruelty. On the alleged date of occurrence, maternal uncle of

Neyaz, namely, Gul Mohammad along with Kamrul Haque, Ali

Ahmad, Khush Mohammad, Usha Ansari and two ladies had

assembled at the place of occurrence. Neyaz was also there. His

Bhagini and sister, after preparing meal, had gone to the place of

maternal grand-mother of Neyaz. During course of returning

therefrom, his sister inquired from Neyaz, ‘why is he loitering?,

accompany them to the house.’ Whereupon, all of them said that

how this lady dare to follow her husband. After hearing this, his

brother-in-law began to quarrel with his sister. His house lies

near about the road. After hearing uproar, they came from their

house and got the matter pacified. His mother directed his sister

to go to her house and then, they also returned back. All of them

accompanied his sister. In the night at about 11:00-12:00, there

was outcry that there happens to be fire in the house of Neyaz

Ansari whereupon, they also rushed to the place where they had

seen the dead body of his sister, Nusrat Jahan at the Darwaza.

Save and except legs, whole body was burnt. There was wrapper
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over her dead body. So many persons were there. Identified the

accused. He has also stated that all the accused ran away seeing

them. During cross-examination at para-6, he has stated that the

accused (his brother-in-law) resides at his Nanihal and so,

happens to be his neighbour. His mother is dead but father is

alive. Accused has one more brother but both are separate. In

para-11, he has stated that from the wedlock, his sister had

begotten four children. The eldest one is aged about seven years.

In para-14, he has stated that the spouses were carrying cordial

relationship till birth of all the children. He is unable to disclose

the exact date of demand of dowry. In para-16, he has stated that

he had gone inside the house of his sister. She used to cook by

firewood. In para-18, he has denied the suggestion that during

course of cooking, his sister caught fire, as a result of which, she

died. He denied the suggestion to the effect that accused is

innocent. He has also denied the suggestion that there was no

demand of dowry at the end of accused.

27. PW-2 is another brother of the deceased who

during course of examination-in-chief has reiterated the version

that since after marriage, which took place six years prior the

occurrence, accused persons (named) began to demand dowry

(she-buffalo) which, they failed to give on account of financial
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crunch. He has further stated that they have seen the dead body

of his sister. Her both hands were fixed like cross, whereupon,

they inferred that her hands were tied by the string which might

have burnt. Her hairs were also burnt. Tongue was protruded.

Plastic chair got stuck to her body after having melted on

account of burning. Excreta was there. There was chhura injury

over her thigh. Her whole body was burnt and naked. After

seeing the dead body, it was giving an impression that she had

been murdered by way of burning. Identified the accused.

During cross-examination at para-8, he has stated that the house

of maternal grand-father of accused, Neyaz lies at a distance of

50 yards from his house. In para-11, he has stated that Neyaz

used to reside at his Nani’s place. His marriage was solemnized

from the said place. In para-13, he has stated that house of non

else is in the surrounding of house of Neyaz. In para-16, he

denied the suggestion that Neyaz was married about 15 years

ago and the age of the eldest daughter (Nazia) is nine years.

Then in para-20, he has stated that his sister had not drawn up

any kind of proceeding against anybody relating to demand of

dowry. In para-21, he has stated that he had seen his sister going

inside the house of Nani of Neyaz. She remained there for half

an hour and then thereafter, she came out. At that very time,
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Neyaz was sitting with Khush Mohammad and Gul Mohammad.

At para 29, he has stated that during course of returning an

altercation took place. In para-23, he has stated that after

hearing uproar with regard to breaking of fire, he along with his

brother and mother had gone to the house of Neyaz at about

11:00 PM. When they reached, at that very time, Neyaz was

coming out from his house carrying the dead body of his sister.

Grave was excavated behind the house. Seeing them, accused

persons fled away after throwing the dead body. In para-25, he

has stated that he had not gone inside the house. His sister was

dead. She was naked. Police came. Grave was shown to the

police. In para-28, 29 there happens to be contradiction. In para-

30, he has stated that police had seen the chair. Then has denied

the suggestion that during course of cooking, the victim

sustained burn accidentally as a result of which, she died. Story

of demand of dowry followed with murder of the deceased are

false.

28. PW-3 is the informant. During her examination-

in-chief, she has reiterated her earlier version. She has further

stated that when they reached at the house of Neyaz on hearing

uproar, they had seen accused persons coming out from the

house carrying the dead body of her daughter who, after seeing
Patna High Court CR. APP (SJ) No.1132 of 2019
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them, ran away after throwing the dead body. Dead body of her

daughter was naked. Her hands and legs were tied. There was

string around her neck. Tongue was protruded. Her eyes and

hairs were completely burnt. Excreta was also there. She has

identified the accused. She has further stated that about six years

ago from the date of occurrence, deceased was married to

Neyaz. Identified the accused. During cross-examination at

para-6, she has shown her ignorance with regard to institution of

Majhaulia PS Case No. 226/2013 against the accused. In para-8,

she has disclosed that the house of Neyaz lies in Mohalla-

Baswari while his Nanihal lies in her village. In para-9, she has

stated that it was not a love marriage rather settled one. At the

time of Nikah, Tajuddin was the Maulvi. In para-10, she has

stated that Neyaz was residing at his Mamhar. His marriage was

solemnized at the instance of his Nana, Nani and Mamu. Then at

para-11, 12, there happens to be disclosure with regard to

children having been begotten to her daughter. The eldest child

was aged about 7 years and the youngest one was about a year

at the time of occurrence. Then has denied the suggestion that

the deceased was married about 15 years ago. In para-17, she

has stated that Neyaz advanced the demand of a she-buffalo just

one year after the marriage. Neither she nor her daughter
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instituted any case against Neyaz on that very score. In para-18,

she has stated that when there was uproar regarding breaking of

fire in the house of Neyaz, at the very time, she was sitting at

her Darwaza. Maternal grand-mother of Neyaz shouted. Rushed.

She along with other co-villagers rushed to the house of Neyaz.

When they arrived, till then, none others have come. When they

arrived, they had seen the accused persons taking out the dead

body of her daughter from the house and, just after seeing them

they threw the dead body and ran away. At that very time, her

daughter was naked. She was dead. She had not untied her

hands, legs. She began to weep. She shouted. Police came and

during course thereof, a large number of villagers also came. In

the night, none had come even on her shout. In para-19, she has

stated that house of Neyaz is a thatched house. In para-21, she

has stated that she had not gone inside the house of Neyaz.

Earthen stove lies in the court-yard. Police had come at about

5:00 AM. Police had not untied the string and in same condition,

dead body was taken away. She had also accompanied. In para-

22, she has stated that police had taken her statement in the

village itself. Dead body was taken away for postmortem in

same condition. When the dead body was handed over to her,

string was not there. She is unable to say whether any document
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was prepared by the police or not with regard to presence of

string. In para-24, she has stated that the police had gone inside

the house and seen the same. Then there happens to be

contradiction over her further statement at para-25, 26, 27, 28.

Then has denied the suggestion that at the time of cooking food,

her daughter got burnt and died.

29. From the evidence as stated above, it is crystal

clear that two kinds of evidence has been admitted at the end of

prosecution. The first one, is that of PW-5, daughter, a minor,

who claimed herself to be an eye witness and as per whose

evidence, deceased was firstly throttled and then, put on fire

after tying with a chair is not found duly supported by the

medical evidence and further, the matter has not been duly

explained at the end of both the parties. However, it is apparent

that deceased died at her Sasural and on that very score, there

happens to be no disputation much less after examination of

DWs. Though the defence has tried to explain but, the same has

to be perceived in the background of totality of the version in

consonance with the obligation having over the appellant as

required under the law.

30. The basic principle of criminal jurisprudence is

based upon a proverb “accused is innocent till he is found
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guilty” and that is based upon the principle of fundamental right

so enshrined under Chapter III of the Constitution, more

particularly, SectionArticle 21 of the Constitution of India takes care of

whereunder it has been incorporated that the fundamental right

of a citizen is subject to infringement only in accordance with

law. And, the procedure has been prescribed for conduction of

trial. In likewise manner, procedure has also been prescribed

identifying the prosecution sharing the burden to prove its case

beyond all reasonable doubut but, in certain circumstances, it

happens to be mere a guess or expectation because of inability

of the prosecution to support its case on account of its inability

due to inaccessability on the other hand, being under exclusive

knowledge of the accused as, the circumstances so suggests and,

such circumstances, is found duly cared under Section 106 of

the Evidence Act which speaks that a person who has got

exclusive knowledge is bound to divulge the same.

31. SectionIn Ranji Kumar Haldar v. State of Sikkim as

reported in 2019(3) PLJR 358 (SC), it has been held as follows:

“13. Before we examine respective
contentions of the learned Counsel for the
parties, it would be appropriate to extract Section
106 of the Act, which reads 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.

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14. The general Rule is that the burden of
proof is on the prosecution. Section 106 of the
Act was introduced not to relieve the prosecution
of their duty but it is designed to meet the
situation in which it would be impossible or
difficult for the prosecution to establish facts
which are especially within the knowledge of the
Accused.

15. SectionIn Shambu Nath Mehra v. State of
Ajmer : AIR 1956 SC 404, the Court held as
under:

8. Section 106 is an exception to Section

101. Section 101 lays down the general Rule
about the burden of proof.

“Whoever desires any court to give
judgment as to any legal right or liability
dependent on the existence of facts which he
asserts, must prove that those facts exist.”

Illustration (a) says–

“A desires a court to give judgment that
B shall be punished for a crime which A says B
has committed.

A must prove that B has committed the
crime.

9. 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
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. It is evident that
that cannot be the intention and the Privy
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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
SectionAttygalle v. Emperor : AIR 1936 PC 169] and
Seneviratne v. R. [(1936) 3 All ER 36, 49].

xx xx xx

11. We recognise that an illustration does
not exhaust the full content of the Section which
it illustrates but equally it can neither curtail nor
expand its ambit; and if knowledge of certain
facts is as much available to the prosecution,
should it choose to exercise due diligence, as to
the Accused, the facts cannot be said to be
“especially” within the knowledge of the
Accused. This is a Section which must be
considered in a commonsense way; and the
balance of convenience and the disproportion of
the labour that would be involved in finding out
and proving certain facts balanced against the
triviality of the issue at stake and the ease with
which the Accused could prove them, are all
matters that must be taken into consideration.
The Section cannot be used to undermine the
well established Rule of law that, save in a very
exceptional class of case, the burden is on the
prosecution and never shifts.

16. In another judgment reported as
SectionTrimukh Maroti Kirkan v. State of Maharashtra :
(2006) 10 SCC 681, the Court considered a
situation wherein Accused is alleged to have
committed the murder of his wife. The
prosecution succeeded in leading evidence to
show that shortly before the commission of the
crime, they were seen together or the offence
takes place in the dwelling house where the
Appellant normally resided. The Court held as
under:

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
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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. SectionIn Nika Ram v. State of H.P. : (1972) 2
SCC 80: 1972 SCC (Cri.) 635: AIR 1972 SC
2077] it was observed that the fact that the
Accused alone was with his wife in the house
when she was murdered there with “khukhri” and
the fact that the relations of the Accused with her
were strained would, in the absence of any
cogent explanation by him, point to his guilt. SectionIn
Ganeshlal v. State of Maharashtra : (1992) 3
SCC 106: 1993 SCC (Cri.) 435] the Appellant
was prosecuted for the murder of his wife which
took place inside his house. It was observed that
when the death had occurred in his custody, the
Appellant is under an obligation to give a
plausible explanation for the cause of her death
in his statement Under Section 313 Code of
Criminal Procedure The mere denial of the
prosecution case coupled with absence of any
explanation was held to be inconsistent with the
innocence of the Accused, but consistent with the
hypothesis that the Appellant is a prime Accused
in the commission of murder of his wife. SectionIn State
of U.P. v. Dr. Ravindra Prakash Mittal : (1992) 3
SCC 300: 1992 SCC (Cri.) 642: AIR 1992 SC
2045] the medical evidence disclosed that the
wife died of strangulation during late night hours
or early morning and her body was set on fire
after sprinkling kerosene. The defence of the
husband was that the wife had committed suicide
by burning herself and that he was not at home at
that time. The letters written by the wife to her
relatives showed that the husband ill-treated her
and their relations were strained and further the
evidence showed that both of them were in one
room in the night. It was held that the chain of
circumstances was complete and it was the
husband who committed the murder of his wife
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by strangulation and accordingly this Court
reversed the judgment of the High Court
acquitting the Accused and convicted him Under
Section 302 Indian Penal Code. SectionIn State of T.N.
v. Rajendran : (1999) 8 SCC 679: 2000 SCC
(Cri.) 40] the wife was found dead in a hut which
had caught fire. The evidence showed that the
Accused and his wife were seen together in the
hut at about 9.00 p.m. and the Accused came out
in the morning through the roof when the hut had
caught fire. His explanation was that it was a
case of accidental fire which resulted in the death
of his wife and a daughter. The medical evidence
showed that the wife died due to asphyxia as a
result of strangulation and not on account of burn
injuries. It was held that there cannot be any
hesitation to come to the conclusion that it was
the Accused (husband) who was the perpetrator
of the crime.

17. In another Judgment reported as SectionNika
Ram v. State of Himachal Pradesh : (1972) 2
SCC 80, it was held that the absence of any
cogent explanation by the Accused would
indicate that the Accused is responsible for
commission of the crime. The Court held as
under:

“16. It is in the evidence of Girju PW that
only the Accused and Churi deceased resided in
the house of the Accused. To similar effect are
the statements of Mani Ram (PW 8), who is the
uncle of the Accused, and Bhagat Ram school
teacher (PW 16). According to Bhagat Ram, he
saw the Accused and the deceased together at
their house on the day of occurrence. Mani Ram
(PW 8) saw the Accused at his house at 3 p.m.,
while Poshu Ram (PW 7) saw the Accused and
the deceased at their house on the evening of the
day of occurrence. The Accused also does not
deny that he was with the deceased at his house
on the day of occurrence. The house of the
Accused, according to plan PM, consists of one
residential room, one other small room and a
verandah. The correctness of that plan is proved
by A.R. Verma overseer (PW 5). The fact that the
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Accused alone was with Churi deceased in the
house when she was murdered there with the
khokhri and the fact that the relations of the
Accused with the deceased, as would be shown
hereafter, were strained would, in the absence of
any cogent explanation by him, point to his guilt.

18. SectionIn State of Rajasthan v. Thakur Singh :
(2014) 12 SCC 211, this Court reiterated the
principle that burden of proving guilt of the
Accused is on the prosecution but there may be
certain facts pertaining to a crime that can be
known only to the Accused. The Court 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.

19. SectionIn Dnyaneshwar v. State of Maharashtra
: (2007) 10 SCC 445, this Court held as under:

“10. It has not been disputed before us
that the deceased was murdered in her
matrimonial home. It is not the case of the
Appellant that the offence was committed by
somebody else. It is also not his case that there
was a possibility of an outsider to commit the
said offence. One of the circumstances which is
relevant is that when the couple was last seen in
a premises to which an outsider may not have
any access, it is for the husband to explain the
ground for unnatural death of his wife. SectionIn Raj
Kumar Prasad Tamarkar v. State of Bihar :
(2007) 10 SCC 433: (2007) 3 SCC (Cri.) 716:
(2007) 1 Scale 19] this Court held: (SCC p. 440,
paras 22-23)

22. The conspectus of the events which
had been noticed by the learned Sessions Judge
as also by the High Court categorically goes to
show that at the time when the occurrence took
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place, the deceased and the Respondent only
were in the bedroom and the terrace connecting
the same. There was no other person. The cause
of death of the deceased Usha Devi i.e. by a
gunshot injury is not disputed. The fact that the
terrace and the bedroom are adjoining each other
is not in dispute.

23. The autopsy report shows that ‘a
blackening and charring’ existed so far as Injury

(i) is concerned. The blackening and charring
keeping in view the nature of the firearm, which
is said to have been used clearly go to show that
a shot was fired from a short distance.

Blackening or charring is possible when a shot is
fired from a distance of about 2 feet to 3 feet. It,
therefore cannot be a case where the death might
have been caused by somebody by firing a shot
at the deceased from a distance of more than 6
feet. The place of injury is also important. The
lacerated wound was found over glabella (middle
of forehead). It goes a long way to show that the
same must have been done by a person who
wanted to kill the deceased from a short distance.
There was, thus, a remote possibility of causation
of such type of injury by any other person, who
was not on the terrace. Once the prosecution has
been able to show that at the relevant time, the
room and terrace were in exclusive occupation of
the couple, the burden of proof lay upon the
Respondent to show under what circumstances
death was caused to his wife. The onus was on
him. He failed to discharge the same.

20. In Ram Gulab Chaudhary and Ors. v.

State of Bihar : (2001) 8 SCC 311, this Court
held 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
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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.

32. SectionIn Nika Ram v. State of Himachal Pradesh as

reported in AIR 1972 SC 2077, it has been held:-

“16. It is in the evidence of Girju PW that
only the accused and Churi deceased resided in
the house of the accused. To similar effect are the
statements of Mani Ram (PW 8),”who is the
uncle of the accused, and Bhagat Ram school
teacher (PW 16). According to Bhagat Ram, he
saw the accused and the deceased together at
their house on the day of occurrence. Mani Ram
(PW 8) saw the accused at his house at 3 p.m.,
while Poshu Ram, (PW 7) saw the accused and
the deceased at their house on the evening of the
day of occurrence . The accused also does not
deny that he was with the deceased at his house
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on the day of occurrence. The house of the
accused, according to plan PM, consists of one
residential room one other small room and a
varandah. The correctness of that plan is proved
by A. R. Verma overseer (PW 5). The fact that the
accused alone was with Churi deceased in the
house when she was murdered there with the
Khokhri and the fact that the relations of the
accused with the deceased, as would be shown
hereafter, were strained would, in the absence of
any cogent explanation by him, point to his guilt.

33. SectionIn Ganeshlal v. State of Maharashtra as

reported in (1992) 3 SCC 106, it has been held as :-

“11. From this evidence it is clear that the
accused appellant and his family members were
present in the house at the time when the
deceased was bring due to fire lit after pouring
kerosene on her and they made no attempt to
save her. The contention that the Doctor had
stated that the death was instantaneous and
nothing was left for the appellant and the other
family members to save her, is unacceptable. The
normal ordinary human conduct would be that
when one of their inmates, namely Kanchana
was in flames, they would have made every
endeavour to save her life, if it were a case of
suicide, and call the people to come to their
rescue to save her life or at least would have
sought first aid from PW-6, who is next door
neighbour, to save the life of the deceased. No
such attempt was made nor even attempted. On
the other hand the appellant’s earliest attempt
was to misguide that Kanchana died due to short
circuit. This attempt was burned fathom deep
from the evidence of PW.10, Elect. Engr. Then
they set up the plea of suicide. We have Ex. 73,
the first information report, immediately lodged
by A-6 with the police. We need not go into the
question as to what extent the admission by a co-
accused would be used against the appellant.

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Suffice it to state that in his examination under
Section 313 Cr. PC. , the appellant admitted that
A-6 went to the police station and gave FIR Ex-
73, to the Head Constable, PW-11 and that A-6
stated that the deceased caught fire while she was
handling the wet clothes for drying, due to short
circuit. In Ex-73, it was also stated that this
information was conveyed by the appellant
himself. This admission is not only a relevant
fact under Section 8 of Evidence Act as res
gestae but a most important circumstance against
the appellant. The indifferent and hard hearted
conduct are also important circumstances. It was
also admitted that the walls in the room became
blackish due to smoke. It is settled law that the
conduct of an accused in an offence previous and
subsequent to the crime are relevant facts.
Absence of any attempt to save the life of the
deceased Kanchana while she was burning and
was charred to death, their conduct in not
attempting to give any medical aid, the conduct
of the appellant immediately after the deceased
was soaked with kerosene and letting fire after
closing the door A.6 obviously opened it after
ensuring that she had died, the appellant’s
coming down and standing at the grill gate on
ground floor; the appellant shouted that uncle
A.6 should close down falsely proclaimed that
there was short circuit; implying to scare away
the people from attempting to save Kanchana.
These are most telling and relevant crucial facts
apart from repulsive inhuman conduct. The false
plea of suicide is yet another relevant fact. When
the death had occurred in their custody the
appellant is under an obligation in Section 313
Cr. PC. statement at least to give a plausible
explanation for the cause of her death. No such
attempt was even made excepting denying the
prosecution case. These facts completely are
inconsistent with the innocence, but consistent
with the hypothesis that the appellant is a prime
accused in the commission of gruesome murder
of his wife. The circumstantial evidence thus
discussed is complete and consistent with the
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only conclusion that the inmates alone
committed the crime and the appellant was one
among them.

34. SectionIn State of U.P. v. Dr. Ravindra Prakash Mittal

as reported in AIR 1992 SC 2045, It has been held:-

” 20. As pointed out supra, there is no direct
evidence to connect the respondent with this
offence of murder and the prosecution entirely
rests its case only on circumstantial evidence.
There is a series of decisions of this Court so
eloquently and ardently propounding the cardinal
principle to be followed in cases in which the
evidence is purely of circumstantial nature. We
think, it is not necessary to recapitulate all those
decisions except stating that the essential
ingredients to prove guilt of an accused person
by circumstantial evidence are:

(1) The circumstances from which the
conclusion is drawn should be fully proved;

(2) the circumstances should be
conclusive in nature.

(3) all the facts so established should be
consistent only with the hypothesis of guilt and
inconsistent with innocence;

(4) the circumstances should, to a moral
certainty, exclude the possibility of guilt of any
person other than the accused.

21. SectionVide Rama Nand v. State of Himachal
Pradesh : 1981CriLJ298 ; Gambir v. State of
Maharashtra : 1982CriLJ1243 ; SectionEarabhadrappa v.
State of Karnataka : 1983CriLJ846 and SectionRam
Avtar v. State of Delhi Administration :
1985CriLJ1865 .

22. Now let us formulate the impelling
circumstances attending the case and examine
whether the cumulative effect of those
circumstances negatives the innocence of the
respondent and serves as a definite pointer
towards his guilt and unerringly leads to the
conclusion that within all human probability the
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offence was committed by the respondent alone
and none else.

23. The circumstances which are established
as having closely linked up with one another are
as follows:

(1) The motive for the occurrence.

(2) The room in which this tragic and
pathetic incident took place was in the exclusive
possession and occupation of the respondent and
the deceased.

(3) The occurrence had happened in the
wee hours of 12th October 1971 when no body
would have got an ingress into the room wherein
the husband and wife admittedly slept.

(4) The evidence of PW-2, swearing that the
respondent was found in the scene house at 7.15
a.m.

(5) The presence of the respondent inside
the room wearing nightgown when PW-4 went to
the scene room.

(6) The position of the dead body lying on
the ground within a cot frame with extensive
burns except on the back and lumbar regions.

(7) The presence of the traditional external
visible features of strangulation as well as the
internal injuries establish the use of violence.

(8) The positive opinion of PW-1 who
conducted the autopsy on the dead body of the
deceased, stating that the death was due to
strangulation and the burns were post-mortem.

(9) False plea of alibi and the conduct of the
respondent feigning innocence.

(10) The intrinsic value of the inviolable and
impregnable evidence let in by the prosecution
completely and conclusively establishing the
links of the entire chain of circumstances as a
whole and not in fragments proving the guilt of
the respondent/accused.”

35. SectionIn State of Tamil Nadu v. Rajendran as reported

in (1999) 8 SCC 679, it has been held

“6. Coming now to the second question, the
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law is fairly well settled that in a case of
circumstantial evidence, the cumulative effect of
all the circumstances proved, must be such as to
negative the innocence of the accused and to
bring home the charge beyond reasonable doubt.
It has been held by a series of decisions of this
Court that the circumstances proved must lead to
no other inference except that of guilt of accused.
(SectionSee Ram Avtar v. State (Delhi Administration) :
1985CriLJ1865 and SectionPrem Thakur v. State of
Punjab : 1983CriLJ155 . The law relating to
circumstantial evidence no longer remains res
integra and we do not think it necessary to
multiply authorities on this point. The
circumstances which can be said be have been
established by unimpeachable evidence are that
the husband and wife namely the accused and the
deceased were frequently quarreling and even on
the date of incident they quarreled with each
other from 7 P.M. to 9 P.M., as has been deposed
to by PWs 1, 3 and 4. The incident namely the
death of the deceased and her two children
occurred inside the house of the accused and
accused had been seen inside the house at 9 P.M.
On the date of incident, which has been
established through the evidence of PWs 1, 3 and
4 and PW 1 happens to be a neighbour. In course
of incident, the accused himself was seen coming
out of the house through the roof as deposed to
by PWs 1 and 3 and the accused has also
admitted in his statement under Section 313 of
the CrPC. The very conduct of the accused in not
raising any alarm even on seeing the fire,
knowing fully well that his wife and two
daughters are inside the house and no attempt
had been made by the accused to save anyone of
the deceased persons. On the other hand the
prosecution evidence indicates that after coming
out the accused was standing as a silent
spectator. The opinion of the doctor indicating
that the wife of the accused died of asphyxia due
to strangulation and not on account of burn
injuries and several findings indicated in the
post-mortem report undoubtedly supports the
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conclusion about the death on account of
asphyxia. If the accused and his wife were seen
together in the house at 9 P.M. and accused came
out in the morning through the roof, leaving the
wife and two children and the death of the wife
was found to be not on account of burn injuries
but on account of strangulation and on being
asked, the accused offers and explanation about
the accidental fire which is found to be untrue,
then in such a case, there cannot be any
hesitation to come to the conclusion that it is the
accused who is the perpetrator of the crime. In a
case of circumstantial evidence when an
incriminating circumstance is put to the accused
and the said accused either offers no explanation
or offers an explanation which is found to be
untrue, then the same becomes an additional link
in the chain of circumstances to make it
complete. This proposition fully applies to the
circumstances of the present case. On the
circumstances enumerated above which have
been established by the prosecution, we have no
hesitation to come to the conclusion that the
charge of murder has been proved beyond
reasonable doubt as against the accused
respondent and the High Court erroneously
acquitted him of the said charge. We, therefore,
set aside the impugned order of acquittal and
convict the respondent Rajendran of the offence
under Section 302 I.P.C. So far as the sentence is
concerned, we are not in a position to hold that
the case represents one of the rarest of the rare
cases, justifying a penalty of death. We,
therefore, sentence respondent Rajendran to the
imprisonment for life. Coming to the charge
under Section 436 IPC, the aforesaid
circumstances together with the evidence of PW
5 to whom the accused is said to have stated
about his setting fire to the house, fully
establishes the said charge. The High Court in
our opinion was in error in interfering with the
conviction and sentence passed by the learned
Sessions Judge under Section 436 IPC. We,
accordingly, set aside the order of acquittal of the
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High Court, so far as this charge is concerned
and confirm the conviction and sentence
recorded by the learned Sessions Judge. Needless
to mention, sentences would run concurrently.”

36. SectionIn Trimukh Maroti Kirkan v. State of

Maharashtra as reported in (2006) 10 SCC 681, It has been

held as:-

“12. In the case in hand there is no eye-
witness of the occurrence and the case of the
prosecution rests on circumstantial evidence. The
normal principle in a case based on
circumstantial evidence is that the circumstances
from which an inference of guilt is sought to be
drawn must be cogently and firmly established;
that those circumstances should be of a definite
tendency unerringly pointing towards the guilt of
the accused; that the circumstances taken
cumulatively should form a chain so complete
that there is no escape from the conclusion that
within all human probability the crime was
committed by the accused and they should be
incapable of explanation on any hypothesis other
than that of the guilt of the accused and
inconsistent with his innocence.

13. The demand for dowry or money from
the parents of the bride has shown a phenomenal
increase in last few years. Cases are frequently
coming before the Courts, where the husband or
in-laws have gone to the extent of killing the
bride if the demand is not met. These crimes are
generally committed in complete secrecy inside
the house and it becomes very difficult for the
prosecution to lead evidence. No member of the
family, even if he is a witness of the crime,
would come forward to depose against another
family member. The neighbours, whose evidence
may be of some assistance, are generally
reluctant to depose in Court as they want to keep
aloof and do not want to antagonize a
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neighbourhood family. The parents or other
family members of the bride being away from
the scene of commission of crime are not in a
position to give direct evidence which may
inculpate the real accused except regarding the
demand of money or dowry and harassment
caused to the bride. But, it does not mean that a
crime committed in secrecy or inside the house
should go unpunished.

37. SectionIn Ravindra Laxmaiah v. State of Andhra

Pradesh as reported in 2013 CrLJ 3147, it has been held as

follows:-

“15. It is a settled legal proposition that in a
case based on circumstantial evidence, where no
eye-witness’s account is available, the principle
is that when an incriminating circumstance is put
to the accused and the said accused either offers
no explanation for the same, or offers an
explanation which is found to be untrue, then the
same becomes an additional link in the chain of
circumstances to make it complete. (Vide: State
of U.P. v. Dr. Ravindra Prakash Mittal : AIR
1992 SC 2045; Gulab Chand v. State of M.P. :
AIR 1995 SC 1598; State of Tamil Nadu v.
Rajendran : AIR 1999 SC 3535; State of
Maharashtra v. Suresh : (2000) 1 SCC 471; and
Ganesh Lal v. State of Rajasthan : (2002) 1 SCC

731).”

38. In Neel Kumar v . State of Haryana as reported

in (2012) 5 SCC 766, it has been held:-

“30. It is the duty of the accused to explain
the incriminating circumstance proved against
him while making a statement under Section 313
Code of Criminal Procedure. Keeping silent and
not furnishing any explanation for such
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circumstance is an additional link in the chain of
circumstances to sustain the charges against him.
Recovery of incriminating material at his
disclosure statement duly proved is a very
positive circumstance against him. (See also:
SectionAftab Ahmad Anasari v. State of Uttaranchal :
AIR 2010 SC 773).”

39. SectionIn Sunil Mahadeo Jadhav v. State of

Maharashtra as reported in (2013) 15 SCC 177, It has been

held:-

“36. Section 106 of the Indian Evidence Act
states that when any fact is especially within the
knowledge of any person, the burden of proving
that fact is upon him. Since it was accused No. 1
who had arrested the deceased at 00.45 a.m. on
17.12.1985 and kept the deceased in police lock
up after his arrest was complete, it was for the
accused No. 1 to explain the injuries on the body
of the deceased other than those which were
noticed in Ex. 76. Accused No. 1 has not stated
anything in this regard in his statement under
Section 313 of the Code of Criminal Procedure,
1973 (for short ‘Code of Criminal Procedure’) nor
adduced any evidence in defence to explain these
injuries. In the absence of any explanation by
accused No. 1 or any evidence adduced on behalf
of accused No. 1 to explain on these injuries on
the body of the deceased, there can be no escape
from the conclusion that these injuries have been
caused on the body of the deceased by accused
No. 1 and no one else.

40. SectionIn Anjanappa vs. State of Karnataka as reported

in (2014) 2 SCC 776, it has been held:-

“30. Besides, the conduct of the Appellant
speaks volumes. He was absconding and could
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be arrested only on 19/02/1992. Moreover, in his
statement recorded under Section 313 of the
Code he has not explained how the deceased
received burn injuries. He did not set up the
defence of alibi. It was obligatory on him to
explain how the deceased received burn injuries
in his house. His silence on this aspect gives rise
to an adverse inference against him. It forms a
link in the chain of circumstances which point to
his guilt.

41. SectionIn State of Jammu and Kashmir v. Vijay Kumar

as reported in (2018) 13 SCC 655, it has been held

“13. It is obvious from the medical
evidence that the death was homicidal and the
body was thrown in the Nallah after killing. The
body had torture marks including the burn marks.
This is further established on record that
immediately before the death, the deceased was
living with her husband. In the light of evidence
on record, it could be held that the burden would
be on the husband Under Section 106 of the
Evidence Act to explain the circumstances in
which the deceased living with him was killed
and her body was thrown in the Nallah”.

42. In Surdu v. State of Chhattisgarh reported in

(2019) 8 SCC 333, it has been held as follows:-

7. From the evidence of PW 1 Janki Bai it
would reveal, that insofar as that part of the
evidence wherein, she has stated that there was a
quarrel between her husband and her, she left the
room with the other two children and the
deceased and the appellant were alone in the
room and that when she reached the house in the
morning, she saw her son Ajit covered with the
blanket and after opening the said blanket seeing
Ajit to be dead is concerned, the same has remain
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unshattered. It could thus be seen that, from the
evidence of PW 1 Janki Bai, it can be safely held
that there was a quarrel between PW 1 Janki Bai
and appellant and after the quarrel, she went to
the house of her brother-in-law with two younger
children and that the deceased was left alone in
the company of appellant and on the next day
morning the deceased was found to be dead.

8. In this view of the matter, after the
prosecution has established the aforesaid fact, the
burden would shift upon the appellant under
Section 106 of the Evidence Act. Once the
prosecution proves, that it is the deceased and the
appellant, who were alone in that room and on
the next day morning the dead body of the
deceased was found, the onus shifts on the
appellant to explain, as to what has happened in
that night and as to how the death of the
deceased has occurred.

9. In this respect reference can be made to
the following observation of this Court in
Trimukh Maroti Kirkan v. State of Maharashtra
[Trimukh Maroti Kirkan v. State of Maharashtra,
(2006) 10 SCC 681 : (2007) 1 SCC (Cri) 80] :
(SCC p. 694, para 21)
“21. In a case based on circumstantial
evidence where no eyewitness account is
available, there is another principle of law which
must be kept in mind. The principle is that when
an incriminating circumstance is put to the
accused and the said accused either offers no
explanation or offers an explanation which is
found to be untrue, then the same becomes an
additional link in the chain of circumstances to
make it complete.”

10. The appellant has utterly failed to
discharge such burden. The appellant has taken
defence in his statement under Section 313
CrPC, that the deceased has died due to an
ailment. However, this is falsified by the medical
evidence of PW 2 Dr B.K. Tirki. In his evidence
he has stated that, there was a fracture on the
head of the deceased and the death of the
deceased might have occurred due to
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strangulation. There were marks of fingers on the
neck of the deceased. No doubt, that non-
explanation or false explanation by appellant
cannot be taken as a circumstance to complete
the chain of circumstances to establish the guilt
of the appellant. However, the false explanation
can always be taken into consideration to fortify
the finding of guilt already recorded on the basis
of other circumstances.

11. In this respect apart from referring to the
observations of this Court in SectionTrimukh Maroti
Kirkan [Trimukh Maroti Kirkan v. State of
Maharashtra, (2006) 10 SCC 681 : (2007) 1 SCC
(Cri) 80] , it will be apposite to refer to the
following observation of this Court in Sharad
Birdhichand Sarda v. State of Maharashtra
[Sharad Birdhichand Sarda v. State of
Maharashtra, (1984) 4 SCC 116 : 1984 SCC
(Cri) 487] , which reads thus: (Sharad
Birdhichand Sarda case [SectionSharad Birdhichand
Sarda v. State of Maharashtra, (1984) 4 SCC 116
: 1984 SCC (Cri) 487] , SCC p. 184, para 151).

“151. It is well settled that the prosecution
must stand or fall on its own legs and it cannot
derive any strength from the weakness of the
defence. This is trite law and no decision has
taken a contrary view. What some cases have
held is only this: where various links in a chain
are in themselves complete, then a false plea or a
false defence may be called into aid only to lend
assurance to the court.”

43. SectionIn Mahesh Kumar vs. State of Haryana as

reported in (2019)8 SCC 128, it has been held:-

9. The first and foremost question that
arises in this case, and in respect of the necessary
ingredients of Section 304-B Indian Penal Code,
is whether there is a proximate nexus between
the death of the deceased with the cruelty or
harassment inflicted upon her in respect of the
demand of dowry. Section 304-B reads as under:

“304-B. Dowry death.–(1) Where the
death of a woman is caused by any burns or
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bodily injury or occurs otherwise than under
normal circumstances within seven years of her
marriage and it is shown that soon before her
death she was subjected to cruelty or harassment
by her husband or any relative of her husband
for, or in connection with, any demand for
dowry, such death shall be called ‘dowry death’,
and such husband or relative shall be deemed to
have caused her death.

Explanation.–For the purpose of this
Sub-section, ‘dowry’ shall have the same
meaning as in Section 2 of the Dowry
Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be
punished with imprisonment for a term which
shall not be less than seven years but which may
extend to imprisonment for life.

10. This Court in SectionSatvir Singh and Ors. v.
State of Punjab and Anr. : (2001) 8 SCC 633
examining the significance and implication of the
use of the words ‘soon before her death’ in
Section 304-B, has held as under:

20. Prosecution, in a case of offence
Under Section 304-B Indian Penal Code cannot
escape from the burden of proof that the
harassment or cruelty was related to the demand
for dowry and also that such cruelty or
harassment was caused “soon before her death”.
The word “dowry” in Section 304-B has to be
understood as it is defined in Section 2 of the
Dowry Prohibition Act, 1961. That definition
reads thus:

2. Definition of “dowry”.–In this Act,
‘dowry’ means any property or valuable security
given or agreed to be given either directly or
indirectly–

(a) by one party to a marriage to the other
party to the marriage; or

(b) by the parents of either party to a
marriage or by any other person, to either party
to the marriage or to any other person;

at or before or any time after the marriage in
connection with the marriage of the said parties,
but does not include dower or mahr in the case of
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persons to whom the Muslim personal law
(Shariat) applies.

* * *

22. It is not enough that harassment or
cruelty was caused to the woman with a demand
for dowry at some time, if Section 304-B is to be
invoked. But it should have happened “soon
before her death”. The said phrase, no doubt, is
an elastic expression and can refer to a period
either immediately before her death or within a
few days or even a few weeks before it. But the
proximity to her death is the pivot indicated by
that expression. The legislative object in
providing such a radius of time by employing the
words “soon before her death” is to emphasise
the idea that her death should, in all probabilities,
have been the aftermath of such cruelty or
harassment. In other words, there should be a
perceptible nexus between her death and the
dowry-related harassment or cruelty inflicted on
her. If the interval elapsed between the infliction
of such harassment or cruelty and her death is
wide the court would be in a position to gauge
that in all probabilities the harassment or cruelty
would not have been the immediate cause of her
death. It is hence for the court to decide, on the
facts and circumstances of each case, whether the
said interval in that particular case was sufficient
to snuff its cord from the concept “soon before
her death”.

11. SectionIn Hira Lal and Ors. v. State (Govt. of
NCT), Delhi : (2003) 8 SCC 80, this Court held
that there must be material to show that soon
before her death the victim was subjected to
cruelty or harassment. The prosecution has to
Rule out the possibility of a natural or accidental
death so as to bring it within the purview of
death occurring otherwise than in normal
circumstances. It was held as under:

9. A conjoint reading of Section 113-B of
the Evidence Act and Section 304-B Indian Penal
Code shows that there must be material to show
that soon before her death the victim was
subjected to cruelty or harassment. The
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prosecution has to Rule out the possibility of a
natural or accidental death so as to bring it within
the purview of “death occurring otherwise than
in normal circumstances”. The expression “soon
before” is very relevant where Section 113-B of
the Evidence Act and Section 304-B Indian Penal
Code are pressed into service. The prosecution is
obliged to show that soon before the occurrence
there was cruelty or harassment and only in that
case presumption operates. Evidence in that
regard has to be led by the prosecution. “Soon
before” is a relative term and it would depend
upon the circumstances of each case and no
straitjacket formula can be laid down as to what
would constitute a period of soon before the
occurrence. It would be hazardous to indicate
any fixed period, and that brings in the
importance of a proximity test both for the proof
of an offence of dowry death as well as for
raising a presumption Under Section 113-B of
the Evidence Act. The expression “soon before
her death” used in the substantive Section 304-B
Indian Penal Code and Section 113-B of the
Evidence Act is present with the idea of
proximity test. No definite period has been
indicated and the expression “soon before” is not
defined. A reference to the expression “soon
before” used in Section 114 Illustration (a) of the
SectionEvidence Act is relevant. It lays down that a
court may presume that a man who is in the
possession of goods “soon after the theft, is
either the thief or has received the goods
knowing them to be stolen, unless he can account
for their possession”. The determination of the
period which can come within the term “soon
before” is left to be determined by the courts,
depending upon facts and circumstances of each
case. Suffice, however, to indicate that the
expression “soon before” would normally imply
that the interval should not be much between the
cruelty or harassment concerned and the death in
question. There must be existence of a proximate
and live link between the effect of cruelty based
on dowry demand and the death concerned. If the
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alleged incident of cruelty is remote in time and
has become stale enough not to disturb the
mental equilibrium of the woman concerned, it
would be of no consequence.

44. SectionIn Rajesh v. State of Haryana as reported in

2019 CrLJ 2432, it has been held

7. It is necessary to refer to Section 306
Indian Penal Code and Section 107 Indian Penal
Code which reads as under:

306. Abetment of suicide.–If any person
commits suicide, whoever abets the commission
of such suicide, shall be punished with
imprisonment of either description for a term
which may extend to ten years, and shall also be
liable to fine.

107. Abetment of a thing.–A person abets
the doing of a thing, who–

First.–Instigates any person to do that
thing; or
Secondly.–Engages with one or more other
person or persons in any conspiracy for the doing
of that thing, if an act or illegal omission takes
place in pursuance of that conspiracy, and in
order to the doing of that thing; or
Thirdly.–Intentionally aids, by any act or
illegal omission, the doing of that thing.

Explanation 1.–A person who, by wilful
misrepresentation, or by wilful concealment of a
material fact which he is bound to disclose,
voluntarily causes or procures, or attempts to
cause or procure, a thing to be done, is said to
instigate the doing of that thing.

8. Conviction Under Section 306 Indian
Penal Code is not sustainable on the allegation of
harassment without there being any positive
action proximate to the time of occurrence on the
part of the Accused, which led or compelled the
person to commit suicide. In order to bring a case
within the purview of Section 306 Indian Penal
Code, there must be a case of suicide and in the
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commission of the said offence, the person who
is said to have abetted the commission of suicide
must have played an active role by an act of
instigation or by doing certain act to facilitate the
commission of suicide. Therefore, the act of
abetment by the person charged with the said
offence must be proved and established by the
prosecution before he could be convicted Under
Section 306 Indian Penal Code. (See Amalendu
Pal alias SectionJhantu v. State of West Bengal : (2010)
1 SCC 707).

9. The term instigation Under Section 107
Indian Penal Code has been explained in
Chitresh Kumar Chopra v. State (Govt. of NCT
of Delhi : (2009) 16 SCC 605: (2010) 3 SCC
(Crl.) 367) as follows:

16. Speaking for the three-Judge Bench in
Ramesh Kumar case [: (2001) 9 SCC 618: 2002
SCC (Cri.) 1088], R.C. Lahoti, J. (as His
Lordship then was) said that instigation is to
goad, urge forward, provoke, incite or encourage
to do “an act”. To satisfy the requirement of
“instigation”, though it is not necessary that
actual words must be used to that effect or what
constitutes “instigation” must necessarily and
specifically be suggestive of the consequence.
Yet a reasonable certainty to incite the
consequence must be capable of being spelt out.
Where the Accused had, by his acts or omission
or by a continued course of conduct, created such
circumstances that the deceased was left with no
other option except to commit suicide, in which
case, an “instigation” may have to be inferred. A
word uttered in a fit of anger or emotion without
intending the consequences to actually follow,
cannot be said to be instigation.

17. Thus, to constitute “instigation”, a
person who instigates another has to provoke,
incite, urge or encourage the doing of an act by
the other by “goading” or “urging forward”. The
dictionary meaning of the word “goad” is “a
thing that stimulates someone into action;
provoke to action or reaction” (see Concise
Oxford English Dictionary); “to keep irritating or
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annoying somebody until he reacts” (see Oxford
Advanced Learner’s Dictionary, 7th Edn.).

10. Words uttered in a fit of anger or
omission without any intention cannot be termed
as instigation.

(See Praveen Pradhan v. State of Uttaranchal
: (2012) 9 SCC 734).

45. The term miscarriage of justice refers to a legal

act or verdict that is clearly mistaken, unfair or improper. A

miscarriage of justice is declared only when the court after

examination of entire cause including the evidence is of the

opinion that is reasonably probable, that a result more

favourable to the appealing party would have been reached in

the absence of error.

46. A court will set aside a judgment or grant a new

trial, any cause on the ground of misdirection or the court, or of

the improper admission or rejection of the evidence, or for any

error as to any matter of pleading, or for any error as to any

matter of procedure, only if the court is of the opinion that the

error complaint of or of has resulted in a miscarriage of justice.

However, the court will examine the entire cause including the

evidence, before setting aside the judgment and granting a new

trial.

47. SectionIn Ukha Kolhe v. State of Maharashtra as

reported in (1964) 1 SCR 926, it has been held:-
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“15. An order for retrial of a criminal case is
made in exceptional cases, and not unless the
appellate Court is satisfied that the Court trying
the proceeding had no jurisdiction to try it or that
the trial was vitiated by serious illegalities or
irregularities or on account of misconception of
the nature of the proceedings and on that account
in substance there had been no real trial or that
the Prosecutor or an accused was, for reasons
over which he had no control, prevented from
leading or tendering evidence material to the
charge, and in the interests of justice the appellate
Court deems it appropriate, having regard to the
circumstances of the case, that the accused should
be put on his trial again. An order of re-trial
wipes out from the record the earlier proceeding,
and exposes the person accused to another trial
which affords the prosecutor an opportunity to
rectify the infirmities disclosed in the earlier trial,
and will not ordinarily be countenanced when it
is made merely to enable the prosecutor to lead
evidence which he could but has not cared to lead
either on account of insufficient appreciation of
the nature of the case or for other reasons.

Harries, C.J., in SectionRamanlal Rathi v. The State
: AIR1951Cal305 , observed :

“If at the end of a criminal prosecution the
evidence leaves the Court in doubt as to the guilt
of the accused the latter is entitled to a verdict of
not guilty. A retrial may be ordered when the
original trial has not been satisfactory for
particular reasons, for example, if evidence had
been wrongly rejected which should have been
admitted, or admitted when it should have been
rejected, or the Court had refused to hear certain
witness who should have been heard. But retrial
cannot be ordered on the ground that the
prosecution did not produce the proper evidence
and did not know how to prove their case.”

48. Aforesaid view has been founded in SectionAtma Ram

v. State of Rajasthan as reported in AIR 2019 SC 1961.
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49. SectionIn P. Ramesh vs. State as reported in AIR 2019

SC 3559, it has been held:-

“17. We are mindful of the fact that the
decision of the High Court was in an appeal
preferred by the Accused. In such a situation it is
necessary to discuss the scope of the High
Court’s powers in an appeal filed against
conviction. Section 374 of the Code of Criminal
Procedure provides for appeals against
convictions and allows any person convicted by
a Sessions Judge or an Additional Sessions Judge
to appeal before the High Court. Section 386 of
the Code of Criminal Procedure10 defines the
powers of the Appellate Court while disposing of
an appeal against an order of conviction or
acquittal. The power under this Section is not
unlimited. The provision is to be taken as giving
the power to do only that which the lower court
could and should have done in a criminal case.

18. A three judge Bench decision of this
Court in SectionMohd. Hussain v. State (Govt. of NCT
of Delhi) : (2012) 9 SCC 408 while dealing with
the powers of the Appellate Court to order a
retrial Under Section 386(b) of the Code of
Criminal Procedure, held thus:

41. The appellate court hearing a criminal
appeal from a judgment of conviction has power
to order the retrial of the Accused Under Section
386 of the Code. That is clear from the bare
language of Section 386(b). Though such power
exists, it should not be exercised in a routine
manner. A de novo trial or retrial of the Accused
should be ordered by the appellate court in
exceptional and rare cases and only when in the
opinion of the appellate court such course
becomes indispensable to avert failure of justice.

Surely this power cannot be used to allow the
prosecution to improve upon its case or fill up
the lacuna. A retrial is not the second trial; it is
continuation of the same trial and same
prosecution. The guiding factor for retrial must
always be demand of justice. Obviously, the
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exercise of power of retrial Under Section 386(b)
of the Code, will depend on the facts and
circumstances of each case for which no
straitjacket formula can be formulated but the
appeal court must closely keep in view that while
protecting the right of an Accused to fair trial and
due process, the people who seek protection of
law do not lose hope in legal system and the
interests of the society are not altogether
overlooked.

A similar position was adopted by this
Court in SectionAjay Kumar Ghoshal v. State of Bihar :
(2017) 12 SCC 699, where it was held thus:

11. Though the word “retrial” is used Under
Section 386(b)(i) Code of Criminal Procedure,
the powers conferred by this Clause is to be
exercised only in exceptional cases, where the
appellate court is satisfied that the omission or
irregularity has occasioned in failure of justice.
The circumstances that should exist for
warranting a retrial must be such that where the
trial was undertaken by the court having no
jurisdiction, or trial was vitiated by serious
illegality or irregularity on account of the
misconception of nature of proceedings. An
order for retrial may be passed in cases where the
original trial has not been satisfactory for some
particular reasons such as wrong admission or
wrong rejection of evidences or the court refused
to hear certain witnesses who were supposed to
be heard.”

50. Thus, after analyzing the facts and circumstances

of the case as well as in the background of the principle laid

down by the Apex Court as referred hereinabove, it is crystal

clear that the finding so recorded by the learned lower court and

its prevalence is non sustainable in the eye of law, whereupon,

the same is set aside. The appeal is allowed. The matter is
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remitted back to the learned lower court to proceed afresh at the

stage of hearing of argument and will decide the appeal in

accordance with law.

51. The appellant is under custody, is directed to be

produced before the learned lower court. Considering the fact

that the appellant is under custody, hence, the learned lower

court will decide the appeal within three months after receipt of

the lower court record. Office to transmit the lower court record

at once.

(Aditya Kumar Trivedi, J)

perwez
AFR/NAFR AFR
CAV DATE 03.09.2019
Uploading Date 23-10-2019
Transmission Date 23-10-2019

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