HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Judgement HIGH COURT OF JUDICATURE AT ALLAHABAD **** Case :- CRIMINAL APPEAL No. - 5372 of 2006 Appellant :- Smt. Premvati Respondent :- State Of U.P. Counsel for Appellant :- Ravindra Sharma Counsel for Respondent :- Govt. Adovcate Along with Case :- CRIMINAL APPEAL No. - 4815 of 2006 Appellant :- Smt. Mamta @ Mamuni Respondent :- State Of U.P. Counsel for Appellant :- R.P.S. Chauhan,Apul Mishra,B.L. Jha,M.P. Singh Gaur Counsel for Respondent :- Govt. Advocate Hon'ble Surendra Vikram Singh Rathore,J.
Hon'ble Brijesh Kumar Srivastava-II,J.
(Per Surendra Vikram Singh Rathore, J.)
1.Since both these appeals arise out of a common judgement, hence these are being disposed of together.
2.Under challenge in the aforesaid criminal appeals is the judgment and order dated 19.08.2006 passed by Additional Sessions Judge, Court No.2, Badaun, in Sessions Trial No. 625 of 2005, arising out of Case Crime No.276 of 2005, Police Station Gunnaur, District Badaun, whereby both the appellants namely Smt. Mamta @ Mamuni and Smt. Premvati were convicted for the offence under Section 302 IPC read with Section 34 IPC and were sentenced to undergo imprisonment for life and also with fine of Rs.5,000/- each with default stipulation of four months' simple imprisonment. They were further convicted for the offence under Section 307 IPC read with Section 34 IPC and were sentenced to undergo rigorous imprisonment for a period of 10 years each and also with fine of Rs.5,000/- each with default stipulation of four months' additional simple imprisonment. Both the sentences were directed to run concurrently.
3.Abridged facts of this case are that the complainant Satya Narain @ Pappu, who happens to be the husband of Smt. Mamta @ Mamuni (appellant), lodged a first information report on 12.05.2005 at 1930 hours at Police Station Gunnaur, District Badaun, alleging therein that his first wife Vineeta had died about 4-5 years prior to the incident. Out of his wedlock with Vineeta, three children namely Dimpal aged about 11 years, Mohit aged about 9 years and Prince aged about 6 years, were born and they were living with him and his second wife Smt. Mamta @ Mamuni. On 12.05.2005, the complainant, leaving his second wife Smt. Mamta @ Mamuni, who was also having his son aged about five months, and his other three children born from his first wife, went to attend the marriage of the daughter of his cousin Suresh at about 12.00 O' clock in the noon. His father was left in the house. When in the evening at about 05.30 PM when he came back to his house then he saw that his wife Smt. Mamta @ Mamuni was sitting on the floor and after pouring her fingers in the blood she was drawing some figures. There were blood stains on the wall also. Her clothes were also stained with blood and all three children, who were born from Vineeta, were lying on the floor. Prince was lying in verandah and one blood stained 'Daab' was also there in the room. The complainant went near his son Prince and found that he was dead. Dimpal and Mohit were seriously injured. The complainant immediately took Dimpal and Mohit to the Police Station leaving the dead body of his son Prince and his wife Mamta @ Mamuni on the place of occurrence. On the basis of this first information report, the case was registered. Smt. Mamta @ Mamuni (appellant) was taken into custody by the police from the place of occurrence by the Investigating Officer.
4.After registration of the case, inquest proceedings of dead body of Prince were conducted and his body was sent for postmortem.
5.Injured Dimpal was medically examined on 12.05.2005 at 10.55 PM at J.N. Medical College Hospital Aligarh Muslim University, Aligarh, and following injuries were found on her person:-
(i)Incised wound 5 cm long x 0.3 cm x S.C. tissue deep;
(ii)Abrasion 2.5 x 0.3 cm right side of neck;
(iii)Incised wound 2.5 x 0.3 x 0.2 cm right side of chin;
(iv)Incised wound 3 x 0.3 cm x S.C. Tissue deep only only on the middle of chin (oblique);
(v)Incised wound 2 cm x 0.3 cm x S.C. Tissue deep on the left side of upper neck, and
(vi)Incised wound 2 x 0.3 cm x S.C. Tissue deep, 2 cm lateral to wound no.5.
All the injuries were reported to be simple. In the medical examination report in the remark column, it was mentioned as under:-
"Alleged h/o of assault by her step mother by a sharp knife."
Injured Dimpal was conscious at the time of her medical examination and she was admitted in the hospital for her treatment.
6.Postmortem on the body of deceased Prince took place on 13.05.2005 at 03.30 PM and the following injuries were found on his person:-
Incised wound 3 cm x ½ cm muscle deep on right top of right shoulder joint;
Incised wound 8 cm x 2 ½ cm up to trachea on middle of right side neck, underneath injury nerve, muscle, vessels found cut and about 10 ml of blood present in wound, and Incised wound 6 x 1 ½ cm muscle deep on lower part of right side neck.
In the opinion of the doctor, the cause of death was shock and haemorrhage as a result of ante-mortem injuries. Duration of death was about one day.
7.During the course of investigation, blood stained cement plaster of room, Gandasa (Daab), clothes of the deceased and the clothes of appellant Smt. Mamta @ Mamuni were taken into custody and their separate memos were prepared. The said recovered articles were sent to Forensic Science Laboratory for examination. As per report of Forensic Science Laboratory dated 26.12.2005, all the clothes were found to be stained with human blood.
8.During investigation, the complainant moved an application to the Senior Superintendent of Police, Badaun, on 26.05.2005 alleging therein that when his daughter Dimpal regained her consciousness after her treatment then she told him that it was Premvati and her mother, who got their mouth gagged with cloth and thereafter Premvati caused injuries with knife and his brother was given blows with Gandasa. At that time, doors of the room were closed. It transpires from record that the said application was forwarded to the Investigating Officer and thereafter in support of the said application, the complainant also gave an affidavit dated 21.06.2005 addressed to Circle Officer, Gunnaur. On the basis of this application and affidavit, for the first time, complicity of co-appellant Smt. Premvati came into light.
9. After completing the investigation, charge sheet was filed against both the appellants.
10.In order to prove its case, the prosecution has examined PW-1 Satya Narain - the complainant, PW-2 Km. Dimpal - injured witness, PW-3 Mohit - another injured witness, PW-4 Dr. Harpal Singh, who has conducted the postmortem on the dead body of deceased Prince, PW-5 SI Vijay Singh Tyagi- Investigating Officer of this case, who has filed charge sheet, PW-6 Dr. S.A.H. Zaidi, who has conducted the medical examination of PW-2 Km. Dimpal, and PW-7 Yogendra Singh - initial Investigating Officer of this case.
11.No evidence in defence was adduced on behalf of the appellants.
12.The case of appellant Premvati was that she was an old lady aged about 70 years at the time of occurrence and simply in order to grab her landed property, the complainant has falsely implicated her to save her wife keeping in view the welfare of his surviving children. Appellant Premvati has also taken defence that she has no son and her all the four daughters are married. So the complainant wanted to grab her property and that is the reason, she has been falsely implicated.
13. Virtually appellant Smt. Mamta @ Mamuni has neither come forward with any specific defence nor any explanation could be furnished on her behalf as to why she has been falsely implicated. Even in her statement under Section 313 Cr.P.C., neither she has made any specific defence nor has explained any circumstance under which, in her own house, the incident has taken place. However, in her statement under Section 313 Cr.P.C. in reply to question no.4 which was regarding the evidence of three eyewitnesses, she has stated that they have given correct statement so far as it relates to her.
14.Learned trial court after appreciating the evidence on record has convicted the appellants, as above, hence these criminal appeals.
15.Submission of learned counsel for appellant Premvati was that there was no allegation against Premvati in the first information report. It is submitted that it has come in the evidence that the statement of two injured witnesses was recorded by the Investigating Officer on the date on which the first information report was lodged but even in the earlier statement, they have not named appellant Premvati. It has also been submitted that the injured Dimpal has received simple injuries. So, it cannot be said that she was not in a position to give statement but in spite of that for the first time the version of the prosecution regarding involvement of appellant Premvati came into light by means of an application dated 26.05.2005 addressed to the Senior Superintendent of Police, Badaun. Subsequently, the complainant in his affidavit dated 21.06.2005 has also supported the version given in the said application.
16.Learned counsel for appellant Premvati has submitted that PW-1 was not an eyewitness of the incident and the evidence of PW-2 and PW-3, who were child witnesses, shows that they were tutored witnesses and their evidence was not the least reliable. Complainant side has changed the story only to save their step mother as they were tutored by the complainant.
17.Learned counsel for appellant Smt. Mamta @ Mamuni has drawn our attention towards the statement of PW-2 and has submitted that her evidence shows that appellant Mamta @ Mamuni was made unconscious and thereafter it was Premvati, who has committed the offence.
18.Per contra, learned AGA, appearing for the State, has submitted that there is evidence against both the appellants and so far as appellant Smt. Mamta @ Mamuni is concerned, submission of learned AGA was that admittedly she was present in the house. Her own step son was murdered. Two other children were injured in the house. Her clothes were stained with human blood. She was found present in the house sketching some figures with her blood stained fingers. She has not furnished any explanation nor she has come with any definite defence as to how the incident has taken place. She was admittedly present in house, therefore, non explanation of the circumstances as to how the incident took place inside her house and the fact that she sustained blood stains on her clothes gives rise to the only conclusion that she was the preperator of this crime and virtually she has no case for her own defence.
19.In view of the rival submissions the prosecution evidence has to be appreciated. In the instant case, in the first information report there was no allegation against appellant Premvati. The case as disclosed by the complainant in the first information report was that he left his house on 12.05.2005 at about 12.00 O'clock and he came back in the same evening at 05.30 PM. There was no whisper in the first information report that he got the information of this incident on telephone and thereafter he came back to his house. During investigation, for the first time, the complainant made an allegation against appellant Premvati by means of an application dated 26.05.2005 addressed to the Senior Superintendent of Police, Badaun, wherein he has stated that Premvati along with his wife Smt. Mamta @ Mamuni has committed this offence because appellant Premvati was of the view that the first wife of the complainant namely Vineeta, who died 4-5 years prior to this incident, after becoming a ghost was responsible for the death of her Dhevata (son of her daughter). The story as disclosed in this application was that after treatment when Dimpal regained her senses then she told him that her mother and Premvati gagged their mouth with a piece of cloth and thereafter both caused injuries with knife and Prince was given blows of Gandasa. The incident had taken place inside the room after closing the doors. The complainant has mentioned that these facts were disclosed to him by her daughter after she recovered from her injuries. He has mentioned in his application that on 14.05.2005 in the morning he informed the Circle Officer Gunnaur on his mobile and told him that her daughter has regained her senses and requested him to come and record her statement. Again on 15.05.2005 he made similar request to the Circle Officer. In the application dated 26.05.2005 it was also mentioned that till date neither the police has visited the place of occurrence nor has made any investigation. After the discharge of his children from the Medical College, he from 21.05.2005 to 24.05.2005 took his children to Kotwali Gunnaur but he was turned out from there saying that he has tutored his children. After a gap of about 25 days, an affidavit addressed to the Circle Officer, Gunnaur, was filed by the complainant Satya Narain wherein he has stated that his first wife Vineeta died about 3 years' ago and for the proper look after of his children, he solemnized second marriage. His second wife was also blessed with a child, who was aged about six months at the time of incident. On 12.05.2005 at about 07.00 AM, he had gone to attend a marriage to Village Junamai and at about 5.00 PM, he received a phone call from Lala Ram regarding the incident. So he immediately came to his house and found that there was large crowd in the house and his children were lying injured. His wife Mamta @ Mamuni was also lying in an unconscious condition. It was also narrated in the said affidavit that the information about this incident was also given to the police of Police Station Gunnaur and the police had reached the place of occurrence and thereafter the complainant along with his injured son and daughter went to the police station and lodged the first information report against his wife. He took his injured children to Primary Health Centre, Gunnaur wherefrom they were referred to Aligarh. After about four days of treatment when his children regained their senses then her daughter Dimpal told him in the presence of one Mahesh and Saheb that when they (brothers and sister) came back from their school then Premvati served yellow Khichadi to their mother. Thereafter, all three children were taken inside the room and after gagging their mouth with cloth the incident was committed. Her mother was armed with Gandasa and Premvati was armed with knife. First both of them murdered Prince and thereafter injuries were caused to her and to Mohit. Thereafter, she became unconscious. It was also mentioned in the affidavit that after this incident Premvati said at several places that she has taken her revenge.
20.Before proceeding further, it is pertinent to mention here that in the instant case there is no medical examination of PW-3 Mohit Kumar on record. Perusal of case diary reveals that in order to obtain medical examination reports of Km. Dimpal and Mohit Kumar a Constable was sent to Medical College Aligarh wherefrom medical examination report of Km. Dimpal was provided. However, regarding Mohit Kumar, it was reported that no such person was medically examined nor was admitted in the hospital, hence, it is not possible to provide the medical examination report of Mohit Kumar. The said report is the part of case diary.
21.The complainant in his application dated 26.05.2005 has specifically stated that he was compelled to move this application because police had not taken any action nor had inspected the place of occurrence. But this part of the application is absolutely false because the Investigating Officer in the instant case had inspected the place of occurrence on that very day on the pointing out of the complainant and, arrested appellant Mamta @ Mamuni from the place of occurrence, blood stained clothes of appellant Mamta @ Mamuni and clothes of Prince were also taken into custody, blood stained plaster of the room was also taken, inquest proceedings were conducted and after sealing the dead body, the same was sent for postmortem. Thus, the averment of the complainant that the police had not taken any action till date, therefore, he was compelled to move this application was absolutely false. The complainant in the said application has also mentioned that on 14.05.2005 i.e. only after two days of the incident, he informed the police to record statement of his daughter. But he himself has mentioned in the subsequent affidavit that her daughter Km. Dimpal regained her senses after about 4-5 days. Thus, according to his own statement, Dimpal regained her senses on 16.05.2005 or 17.05.2005. So there was absolutely no occasion to inform the police to come to Aligarh and record the statement of her daughter on 14.05.2005. Apart from it, the version in the affidavit is that Premvati administered yellow Khichadi to appellant Mamta @ Mamuni and thereafter both of them took all three children inside the room. Their mouths were gagged and both of them have committed this offence. Thus, according to the version of the affidavit the entire incident had taken place inside the room. But according to the version of the first information report and also according to the site plan which was prepared on the pointing out of the complainant himself, the dead body of Prince was found in the verandah of the house. Admittedly, not even a single piece of cloth which was used for gagging the mouths of the children was recovered from the place of occurrence nor any blood stained knife was found in the house.
22.Now coming to the evidence recorded during trial. PW-1 himself is not a witness of this incident. In his statement before the court he has not stated the time at which he left his house to attend the marriage and went to village Junamai. On the phone of one Lala Ram, he came back to his house at 05.30 PM and found that appellant Mamta @ Mamuni was present in the house. She was behaving in a strange manner. Her fingers were stained with blood and she was trying to stand up but was unable to do so. Her clothes and walls of the room were also stained with blood and all three children were lying on the floor. Prince was lying dead in the verandah of the house. A blood stained Gandasa was also lying there. He has stated that on the basis of the circumstances he had lodged the first information report but when his daughter Dimpal regained her senses after her treatment then he gave an application on 26.05.2005 addressed to the Senior Superintendent of Police, Badaun, stating therein the version of the incident as disclosed by his daughter Dimpal. In his cross examination, he has stated that the injured children regained their senses after about 5-6 days. Thus, the complainant, for the first time, made allegations against appellant Premvati in the application dated 26.05.2005. The story set up by the complainant himself appears to be a concocted story because according to the complainant PW-2 Km. Dimpal regained her senses after 5-6 days. So there was absolutely no occasion to make a phone call to Circle Officer to record the statement of PW-2 Km. Dimpal on 14.05.2005 and 15.05.2005. Apart from it, PW-3 Mohit Kumar was not injured. There is no medical examination report on record. Neither his injuries were recorded in the G.D. while registering the case nor any reference slip issued by Primary Health Centre Gunnaur has been proved by the prosecution. Perusal of the case diary also shows that neither Mohit Kumar was medically examined at Medical College, Aligarh, nor he was admitted for treatment. Thus, in this background, the Court can presume that Mohit Kumar never became unconscious because we cannot presume, in absence of any injury report, that Mohit Kumar was also injured keeping in view the statement of the complainant that PW-3 was also medically examined and admitted in the hospital. So there was no question of his being unconscious. If he was not unconscious then he would have narrated the story before lodging the first information report or immediately thereafter to his father. Apart from it, in the medical examination report of PW-2 Dimpal doctor has reported that she was conscious. So the story that when they regained their senses then they told the story to the complainant does not inspire the least confidence.
23.Appellant Premvati has come with a definite defence case that she was not the least involved in this incident and she has four daughters only and in order to grab her property, she has been falsely implicated. At one place, the complainant himself has admitted that appellant Premvati is wife of his grandfather's brother. The motive as alleged against appellant Premvati was that she was under belief that Vineeta, the first wife of the complainant Satya Narain, after becoming a ghost, was responsible for the death of her Dhevata. It has also come in evidence that Vineeta died about 4-5 years' prior to this incident and Dhevata of appellant Premvati died about 15 days' prior to this incident after his treatment which continued for about 1 ½ - 2 months. In his cross examination the complainant has stated that he had given the affidavit on 21.06.2006 and before 21.06.2005, he made several efforts to move a written report but he was not heard but there is an application of the complainant dated 26.05.2005 addressed to the Senior Superintendent of Police, Badaun, which has been proved during trial by the complainant himself and also the affidavit. Apart from it, in the affidavit complainant has made specific allegation that Premvati has said at several places that she has taken her revenge but no such person was found during investigation nor could be produced during trial.
24.PW-2 Km. Dimpal and PW-3 Mohit Kumar, both, are child witnesses.
25.Before appreciating their evidence, we would like to discuss the law on the point as to what value should be attached to the child witnesses. On this point, Hon'ble the Apex Court in the case of State of M.P. v. Ramesh and another reported in (2011) 4 SCC 786, has held as under:-
"In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition."
26.In view of the aforementioned case law, if the Court reaches to the conclusion that the evidence of a child witness was natural and reliable then there would not be any illegality in recording conviction on the basis of the same but the Court should ensure that such statement ought not to be the outcome of tutoring and must be natural and reliable statement of the witness. PW-2 Km. Dimpal has stated that when she came back to her house from the school then Mamta @ Mamuni and Premvati were present in the house. There was no food in the house. So, she took out some rice and was going to wash the same. In the meantime, appellant Premvati came out from the room and gagged her mouth with a piece of cloth and also tied her hands with a Gamcha and took her inside the room. She saw that her youngest brother Prince was lying dead and her mother was lying unconscious and thereafter Premvati sat on her and after giving knife in the hands of Mamta @ Mamuni gave blows of knife on her neck. Thereafter, Premvati went in the verandah and gagged the mouth of Mohit, brought him inside the room, tied his hands and thereafter a Gandasa was given in the hands of her mother and by holding the hands of her mother, blows of Gandasa were given by Premvati and thereafter she became unconscious. Thus, this version of the incident was totally inconsistent with the version given by the complainant in his application and affidavit which were moved on the basis of the information furnished to him by this witness namely Dimple. According to the evidence of this witness, Prince was murdered inside the room and his body was lying there but how the dead body of Prince reached in the verandah has nowhere been explained. Apart from it, in the instant case, no knife was recovered from the place of occurrence. There is absolutely no evidence that any person of the village saw Premvati entering into the house or coming out of the house of the complainant after the incident. In the cross examination of PW-2, she, for the first time, has stated that she had disclosed this incident to her father that Premvati was having a knife. She was not armed with Gandasa. Her brother Prince was given blows of Gandasa. She received injuries of knife. Premvati was armed with knife and Gandasa, who gave these weapons in the hands of her mother and thereafter blows were given and all the injuries were caused in such manner. Her brother Prince was killed by Premvati only. But according to her own evidence, she had not witnessed the incident of murder of Prince because she has stated that when she was taken inside the room then Prince was lying dead. She has also admitted in her cross examination that Prince was not murdered in her presence. Thus, this conduct of the witness shows that she has been tutored to assign each and every role to appellant Premvati.
27.Now, coming to the evidence of PW-3 Mohit Kumar. Before appreciating his evidence, it is pertinent to mention here that this witness was produced by the prosecution on 07.03.2006. He was a student of Kindergarten. On the said date, several questions were put to this witness but regarding incident, he utterly failed to reply any question. Therefore, his statement was not recorded. Again he was produced by the prosecution on 22.03.2006 and on the said date, he has stated that on the date of incident he was sleeping in the verandah and he was caused injuries by appellant Premvati. He was given blow of knife on his hand and not on his neck. He could not cry as his mouth was gagged with a cloth of piece. He has stated that her mother Mamta @ Mamuni has not caused injuries and he had not seen his mother and Premvati causing any injury to Prince and Dimpal. He became unconscious because of injury. At that time his mother was lying unconscious. In his cross examination, he has stated that injuries to him were not caused by his mother. But he has also stated that when on the last date his statement was not recorded then the Public Prosecutor and his father reminded him about the incident. This statement shows that he is a tutored witness. None of these two witnesses have stated that yellow Khichdi was administered by Premvati to Mamta @ Mamuni as was the case in the affidavit filed by the complainant on the basis of information furnished by these two witnesses.
28.On the strength of this statement of the witness the submission of learned counsel for appellant Premvati was that both of them are tutored witnesses and we are also of the opinion that they are tutored witnesses.
29.PW-4 is Dr. Harpal Singh, who has proved the postmortem report, details of which have already been mentioned in the earlier part of the judgment.
30.PW-6 Dr. S.A.H. Zaidi has described the injuries of Km. Dimpal. All the injuries were reported to be simple in nature. In the medical examination report, it was also mentioned that she was conscious. Thus, the version of the prosecution that she regained her senses after treatment and thereafter she disclosed the story to her father also does not find any support from her medical examination.
31.Thus, the evidences of PW-2 and PW-3 clearly show that they are tutored witnesses. The prosecution version, as narrated by the complainant on the information furnished by PW-2 Dimpal, and as disclosed by him in his application dated 26.05.2005, were altogether different from the statement which has come before this Court during trial. The manner in which the incident had taken place, as stated by PW-2 and PW-3, was nowhere the case of the prosecution either in the application or in the affidavit filed by the complainant or during investigation in the statements recorded by the Investigating Officer. Such a story has come forward for the first time before the trial court. The evidence of two witnesses i.e. PW-2 and PW-3 was contrary to each other and clearly gives rise to the only inference that they are tutored witnesses. It appears that subsequently the complainant made up the mind to save his wife to look after his family and therefore a somersault was taken by the complainant and the witnesses. Apart from the evidence of these two witnesses, there was nothing against appellant Premvati to connect her with the instant offence. Nothing incriminating is alleged to have been recovered from her possession nor there is any evidence that she went into the house of the complainant or came back after the incident or she has said to any person that she has taken her revenge.
32.So far as the appellant Premvati is concerned, the finding recorded by the learned trial court was not in accordance with law. Learned trial court has failed to appreciate the evidence in correct perspective. Smt. Premvati has come with a definite defence which was suggested to the witnesses and also she has stated in her statement under Section 313 Cr.P.C.
33.So far as appellant Mamta @ Mamuni is concerned, it is true that once the evidence of PW-2 and PW-3 is disbelieved, the only evidence that remains available against her is the circumstantial evidence.
34.Now the point to be considered is if the prosecution proposes to prove its case on the basis of direct evidence and fails to establish its case but the circumstances available on record unerringly point towards the guilt of the accused then in such condition whether it would be justified to convict the accused on the basis of circumstantial evidence only. Our reply to this question is in affirmative.
35.The evidence tendered in a court of law is either direct or circumstantial. Evidence is said to be direct if it consists of an eye-witness account of the facts in issue in a criminal case. On the other hand, circumstantial evidence is evidence of relevant facts from which, one can, by process of intuitive reasoning, infer about the existence of facts in issue or factum probandum.
36.In dealing with circumstantial evidence there is always a danger that conjecture or suspicion lingering on mind may take place of proof. Suspicion, however, strong cannot be allowed to take place of proof and, therefore, the Court has to be watchful and ensure that conjectures and suspicions do not take place of legal proof. However, it is not derogation of evidence to say that it is circumstantial. Human agency may be faulty in expressing picturisation of actual incident, but the circumstances cannot fail. Therefore, many a times it is aptly said that "men may tell lies, but circumstances do not.
37.On this point, reference may be made to the pronouncement of Hon'ble the Apex Court in the case of G. Parshwanath v. State of Karnataka reported in (2010) 8 SCC 593.
38.Reference may also be made to the pronouncement of Hon'ble the Apex Court in the case of Jagjit Singh v. State of H.P. reported in 1994 SCC (Crl.) 176, wherein in paragraph 5, Hon'ble Court has held as under:-
"It is contended that the prosecution having put forward a case based on the direct testimony of Kulwant Singh cannot later make it appear a case based on circumstantial evidence. We wee no force in this submission. Obviously the presence of Kulwant Singh cannot be secured at all but that does not prevent the prosecution from relying on the evidence though circumstantial in nature and if such evidence is sufficient to bring home the guilt, the conviction should follow."
39.In the first information report the complainant has narrated as to what he saw on the place of occurrence to that extent he was a witness of fact. He has stated that the dead body of his son Prince was lying in the verandah and two other children were lying injured in the room. The clothes of appellant Mamta @ Mamuni were stained with blood. Blood stained "Daab" was also lying there. Subsequently she was arrested by the Investigating Officer from the place of occurrence and it has been so stated by the Investigating Officer during trial. Neither there is any evidence nor even there is a suggestion from the side of appellant Mamta @ Mamuni that any other person was present in the house at the relevant time. It is really strange to note that Smt. Mamta @ Mamuni has stated in her statement under Section 313 Cr.P.C. that the evidence of PW-1, PW-2 and PW-3 is correct so far as it relates to her but she has absolutely not furnished any explanation as to how this incident occurred. According to the evidence of PW-1 Satya Narain, she was the only person in the house when he left the house to attend the marriage and went to village Junamai. The incident had taken place inside the house, which was, at the relevant point of time, in the possession of the present appellant Mamta @ Mamuni. It is no body's case that the father of the complainant was also present in the house at the relevant time. So whatever occurred inside the house was exclusively within her knowledge, therefore, Section 106 of the Indian Evidence Act shall come into play. Section 106 of the Indian Evidence Act 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."
40. At this juncture, we would like to quote the pronouncement of Hon'ble the Apex Court in the case of State of Rajasthan Vs. Kashi Ram reported in [(2006) 12 SCC 254], wherein Hon'ble the Apex Court in paragraph-23 has considered the legal position regarding Section 106 of the Indian Evidence Act as under:-
"23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain." (emphasis added by us)
41. The circumstances which stand fully proved against appellant Mamta @ Mamuni are that she was present in the house where this incident had taken place. She was the step mother of the three victims. Prince was lying dead in the verandah. The other two children were also lying injured in the room. Clothes of appellant Mamta @ Mamuni were stained with blood. Blood stains were also present on the wall. It is really surprising to note that not even a single explanation during entire trial in the form of any suggestion or in the form of any defence was put on behalf of appellant Mamta @ Mamuni. She has only denied the incident in her statement under Section 313 Cr.P.C. and has stated that she has been falsely implicated. She has also denied to give any evidence in defence and she has also stated that she does not want to say anything else. Several incriminating circumstances regarding the recovery of blood stained cloths and other incriminating articles were put to her but she has stated that it is wrong but the said recoveries stand established by the evidence of PW-1 and the Investigating Officer. Even PW-2 and PW-3 have nowhere stated that their mother Mamta @ Mamuni was not present in the house. It is true that no motive has been suggested as to why such an offence has been committed by Smt. Mamta @ Mamuni but she has utterly failed to furnish any explanation as to how this incident has occurred. Apart from it, she has given false answers regarding the recovery of blood stained clothes and the weapons of offence from her house.
42. False replies completes the missing link. It is submitted that the prosecution has not come forward with any specific motive that appellant Mamta @ Mamuni has committed this offence. Motive remains embeded in the heart of the accused. Prosecution can only make a guess of it. Though motive plays an important role in cases of circumstantial evidence but its contrary is not correct the absence of motive itself would be fatal for the prosecution. Reference on this point may be made to the pronouncement of Hon'ble the Apex Court in the case of Raj Kumar Singh alias Raju alias Batya v. State of Rajasthan reported in (2013) 5 SCC 722 in paragraph 30 of the judgement has held as under:-
"In a criminal trial, the purpose of examining the accused person under Section 313 Cr.P.C., is to meet the requirement of the principles of natural justice i.e. audi alterum partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the court must take note of such explanation. In a case of circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete. No matter how weak the evidence of the prosecution may be, it is the duty of the court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him."
43. In the case of Ramnaresh v. State of Chhattishgarh reported in (2012) 4 SCC 257, Hon'ble the Apex Court had taken the view that if an accused is given the freedom to remain silent during the investigation, as well as before the Court, then the accused may choose to maintain silence or even remain in complete denial, even at the time when his statement under Section 313 Cr.P.C. is being recorded. However, in such an event, the Court would be entitled to draw an inference, including such adverse inference against the accused, as may be permissible in accordance with law.
44. Thus, the circumstances which are proved in this case coupled with the failure of appellant Mamta @ Mamuni to explain any circumstance unerringly point towards her guilt. On the basis of these circumstances no other conclusion is possible. Chain of circumstances is complete against appellant Mamta @ Mamuni. No other conclusion, except the guilt of appellant Mamta @ Mamuni, can be drawn on the basis of the circumstances proved by the prosecution.
45. In view of discussions made above, we are of the considered view that Criminal Appeal No.5372 of 2006 preferred by Smt. Premvati deserves to be allowed and is hereby allowed. She is acquitted of all the charges levelled against her. She be set at liberty. She is on bail. Her bail bonds are cancelled and sureties discharged.
46. Criminal Appeal No.4815 of 2006 preferred by Smt. Mamta @ Mamuni deserves to be dismissed and is hereby dismissed. She is in custody. She shall serve out her sentence imposed by the learned trial court.
47. Office is directed to communicate this order to the court concerned for immediate compliance and also to send back lower court record.
Order Date :-11th Sept., 2015 (B.K. Srivastava-II, J.) (S.V.S. Rathore, J.)
A. Katiyar