Sanogi Yadav vs State Of U.P.
2012 Latest Caselaw 3161 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved.
 

 
Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 2603 of 2005
 

 
Petitioner :- Sanogi Yadav
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- Rajeev Chaddha,Ashwani Kumar Mishra
 
Respondent Counsel :- Govt.Advocate
 
				
 
	Connected with
 

 
Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 2611 of 2005
 

 
Petitioner :- Shiv Murti And Others
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- Vinod Kumar Sharma,H.P.Gupta,V.M.Zaidi
 
Respondent Counsel :- Govt.Advocate
 

 
Hon'ble Amar Saran, J.

Hon'ble Kalimullah Khan, J.

( Delivered by Hon. Kalimullah Khan, J.)

1. The aforesaid two Criminal Appeals Nos. 2603 of 2005 and Criminal Appeal No. 2611 of 2005 have been preferred against the impugned judgment and order dated 27.6.2005 passed by learned Additional Sessions Judge, Court No. 3, Gorakhpur in S.T. No. 13 of 2000 State Versus Smt. Sonwa and others whereby he has convicted and sentenced the appellants Smt. Sonwa, Shiv Murti, Sanogi, Ram Kripal and Awadh Bihari under section 302/149 I.P.C. to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/- and under section 302/201 I.P.C. to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 2000/- and in default of payment of fine to undergo imprisonment for one year.

2. The impugned judgment, order and sentence have been challenged on the ground that they besides being perverse are against the law and facts of the case. They are not borne out by the evidence on record rather on conjectures and surmises. At any rate the sentence is severe.

3. First informant Surendra Yadav lodged a written report Ext. Ka.1 with police station Barhalganj, district Gorakhpur making accusation against all the aforesaid 5 accused appellants namely Sanogi Yadav, Shiv Murti alias Shiv Murat, Avadh Bihari, Ram Kripal and Smt. Sonwa along with accused Smt. Lalita and Rajesh ( Both the aforesaid appellants have been acquitted by the learned trial court); that his sister Smt. Sheela Devi was married with Chandra Mauli son of Raj Deo 12 - 13 years ago. In her Bidai when she was at her in law's house, she got an abscess in her leg. Although it was cured, yet it left a white spot in its place. Accused persons who are relations of her husband treated it as leprosy and used to taunt her on this score and refused to get her in their house. They left her in her Maika where she lived for 3 years. A Panchayat was convened and on intervention of the Panchas she was taken by her in laws from her Maika 9 months earlier to this incident of her murder. All of them were humiliating her. She had no issue. The informant got an information on the date of lodging the F.I.R. on 22.3.1999 that all the 7 accused persons had committed the murder of his sister Smt. Sheela Devi by setting her ablaze after pouring kerosene oil at her person in the morning at 6.00 a.m. and after her murder in the aforesaid manner in order to screen themselves from legal punishment and to conceal the evidence of the offence, by putting her dead body on the tractor trolley accused appellants and two others carried to the bank of river Saryu and have put her dead body into water. Number of persons have witnessed the incident of disappearing the corpus by the accused persons.

4. On the basis of written report Ext. Ka.1, chik report Ext. Ka.15 was drawn and the case was registered in the G.D. dated 22.3.1999 at about 9.30 a.m. at police station Barhalganj, District Gorakhpur which lies at a distance of 11 Km. from the scene of incident.

5. Investigation followed. During the course of investigation, the Investigating Officer noticed that accused persons were trying to bring out the tractor trolley from the sand lying at the bank of river Saryu after disposing of the dead body in the river. All the accused tried to make their escape good noticing the arrival of the police, but accused appellants Shiv Murti and Sanogi were apprehended by the police while rest accused ran away. Both the said appellants made confessional statements to the police leading to the discovery of the dead body at their pointing out. The dead body of the deceased Smt. Sheela Devi ( hereinafter called the deceased) was recovered from the main stream of Saryu river which was thrown into the river by putting it along with sand in two woolen blanket type sheets. The dead body was naked. Inquest was drawn. It was sealed in a different clothes and sent to mortuary for post mortem examination. Autopsy was conducted on 23.3.99 at 5.30 P.M. Following ante-mortem injuries were found at her body:-

Ante-mortem injuries : 1. Superficial to deep burn  on almost  all 					over the body. 										Singing of hair (scalp) present. Line of 						redress present at 	places.
 
2.Contusion 6.00 cm x 4.0 cm on left side head 6.0 cm above  the left ear on opening underlying haematoma present.
 

 
				Cause of death was shock as a result of ante-mortem injuries.
 

 
6.	After collecting the evidence, preparing site plan and being satisfied with the investigation I.O. submitted charge sheet against all the 7 accused persons who were charged on 16.9.2003 under section 147, 302/149 and 201/149 I.P.C. 
 

 
7.	In order to prove its case prosecution examined 11 prosecution witnesses namely Surendra Yadav, P.W.1, Himanchali P.W.2, Sanjay Yadav, P.W.3, Jai Ram, P.W.4, Hemraj, P.W.5, Ambika, P.W.6, Dr. R.N.Sahi, P.W.7, S.I.Ram Singar Yadav, P.W. 8, Inspector Shri Krishna Yadav, P.W. 9, Shri Ghanshyam Ahirwal, P.W. 10 and Constable Moharrir Ram Mahima Pandey P.W. 11. 
 

 

8. In documentary evidence prosecution proved written report Ext. Ka.1, recovery memo Ext. Ka.2, post mortem examination report Ext. Ka.3, recovery memo of tractor trolley Ext. Ka.4, Inquest Ext. Ka.5, photo loss Ext. Ka.6, police form No.13 Ext. Ka.7 and police form No. 33 Ext. Ka.8, letter to R.I. Ext. Ka.9, report police Barhalganj, Ext. Ka.10, site plan of the bank river Ext. Ka.11, site plan of the spot of incident Ext. Ka.12, recovery memo of quilt and mattress Ext. Ka.13, site plan Ext. Ka.14, chik report Ext. Ka.15 and G.D. Entry regarding registration of case Ext. Ka.16.

9. All the accused were examined under section 313 Cr.P.C. They denied the prosecution evidence, refuted their participation in the crime and claimed their innocence by attributing their false implication in this case to the connivance of local police. Accused Shiv Murti and Sanogi stated that no quarrel had taken place with the deceased and after her death they have informed the incident at her Maika and when the dead body was being taken for cremation, police reached and arrested them after getting the false report lodged.

10. Having heard the learned counsel for the parties, learned trial court vide judgment and order dated 27.6.2005 recorded a finding of acquittal giving benefit to Smt. Lalita Devi and Rajesh on the ground that they were junior members in the family and their implication along with elder members may be due to exaggeration of the accusations while holding the appellants guilty for offences under section 302/149 and 302/201 I.P.C. and sentenced them as stated above.

11. Feeling aggrieved, the convict appellants preferred two aforesaid criminal appeals.

12. We have heard learned counsel for the appellants and learned A.G.A. and perused the records.

13. Learned counsel for the appellants argued that the evidence on record was common against all the 7 accused persons named and charge sheeted out of whom Rajesh and Smt. Lalita have been acquitted by the trial court. The case of the appellants are at par to them and therefore they too deserve their acquittal. He further argued that there is no evidence on record substantiating the charges framed against the appellants. The judgment is based on conjectures and surmises and is against the weight of evidence on record. There is no evidence, direct, indirect or circumstantial in nature against the appellants to fasten the guilt with their head and the charges framed against them have not been proved by cogent, clinching and reliable evidence according to the procedure established by law, therefore, the judgment and order impugned deserve to be set aside and appellants are entitled for their acquittal.

14. Per contra, learned A.G.A. has argued that the death of the deceased has ensued in her in laws house and all the accused appellants are the residents of same house except accused appellant Sanogi. They are kith and kin of the husband of the deceased, her husband was not present at spot rather he was serving in Bangkok during the days of incident. She was there inside the house of the accused persons and, therefore, no independent witness could be available to prove the charge and it was the accused appellants who had to explain their innocence. The factum and the mode and manner of the incident was specially in the knowledge of the accused appellants and, therefore, it was their bounden duty to have brought the circumstances on record as to under what circumstances the deceased sustained contusion and the burn injuries. Accused appellants have not informed the incident to police. They were hurriedly trying to cremate the dead body without informing the incident to the members of the parental house of the deceased. Not only this they threw the dead body wrapped in two blankets and after putting sand to increase the weight so as to ensure that the dead body should not come on the surface of the water and seeing the police, they started absconding. However, out of them two accused were apprehended at the spot. The tractor trolley was taken into custody. They made confessional statements and at their pointing out the dead body was recovered from the main stream of the river Saryu. The half burnt quilt and mattress and kerosene jerry can were recovered from the spot where the dead body is said to have been burnt out, coupled with the fact, as per the autopsy that the deceased had superficial to deep burn injuries at her body apart from a contusion 6 cm x 4 cm on the head. The motive is strong in as much as it is of three fold. (1) That there was, according to the accused, leprosy mark in the leg of the deceased, (2) That her relation with appellants were strained and (3) That the husband of the deceased had illicit relation with accused Smt. Sonwa and in the absence of her husband all the accused persons succeeded in getting rid of her and, therefore, the finding of the learned trial court holding the appellants guilty under section 302/149 and 302/201 I.P.C. is fully borne out by the reliable evidence on record. Appeal, according to him, has no merit and deserves dismissal.

15. As regards the charge under section 302/149 I.P.C. there is no direct evidence on record, therefore, the case rests purely on circumstantial evidence. Hon'ble Supreme Court has given in a catina of cases the guidelines to the courts to deal with the cases based on circumstantial evidence.

16. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.

17. In Padala Veera Reddy v. State and others. 1989 Indlaw SC 31, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

(1)those circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2)those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3)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 none else; and

(4)the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

18. In State of U.P. Vs. Ashok Kumar Srivastava, 1992 CrLJ 1104, it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.

19. Sir Alfred Wills in his admirable book "Wills' circumstantial Evidence" (Chapter VI ) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted". 6. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by this Court as far back as in 1952.

20. In Hanumant Govind Nargundkar and Another V. State of Madhya Pradesh, 1952 Indlaw SC 89, it was observed thus :

" It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. "

21. In Sharad Birdhi Chand Sarda vs State of Maharashtra, 1984, Indlaw SC 432, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence must be fully established. They are:

(1)the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;

(2)the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(3)the circumstances should be of a conclusive nature and tendency;

(4)they should exclude every possible hypothesis except the one to be proved; and

(5)there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

22. In the light of the aforesaid guidelines, we have perused the records. In this case admittedly Surendra Yadav, the first informant who is the real brother of the deceased is not a witness of an eye account of murder. His evidence is hearsay. He was informed about the incident by Smt. Sunita. He had deposed that he was informed by Smt. Sunita Devi his relation. According to his deposition Smt. Sunita has informed him at about 6.00 a.m. on the day of incident that a quarrel had taken place in between the deceased and her Jethani Smt. Sonwa and thereafter Smt. Sonwa, Ram Kripal, Awadh Bijhari, Shiv Murti, Rajesh, Smt. Lalita and Sanogi Yadav poured kerosene oil at the person of the deceased and set her on fire as a result of which she had succumbed to her burn injuries. The said Smt. Sunita had also informed the informant that after the murder of deceased committed by aforesaid accused persons they have put the dead body on a tractor trolley and had taken towards Saryu river to dispose of the body and a number of persons have witnessed them carrying the dead body whereupon the first information Ext. Ka.1 was lodged by the informant P.W.1.

23. Smt. Sunita has not been examined in this case.

24. Surendra Yadav, P.W.1 have proved the motive as mentioned in the F.I.R. and the strained relation in between the parties and the recovery of the dead body at the pointing out of two accused persons mentioned above, he has proved written report Ext. Ka.1. He has been cross examined at length, but nothing material could be fetched out from his mouth by defence to render benefit to the accused appellants,

25. Smt. Himanchali wife of R.A.Yadav has been examined as P.W.2. She had deposed and proved the abscess mark in the leg of the deceased which was called by the accused as leprosy. The humiliation of the deceased at the hands of the appellants and the Panchayat in between the parties on the point of Bidai of deceased to her Sasural and the fact that Smt. Sunita the daughter of his sister had informed that aforesaid accused persons had committed the murder of of deceased by setting her ablaze and thereafter threw the dead body in the Saryu river. This witness has deposed that at the pointing out of Shiv Murti and Sanogi the dead body of the deceased was recovered which was wrapped in sheets. The quarrel in between Sonwa and deceased have also been proved by her. She has also stated that during the course of quarrel accused Shiv Murti, Awadh Bihari, Ram Kripal, Rajesh and Smt. Lalita poured the kerosene oil at the deceased and thereafter she was set on fire who succumbed to her injuries. She has also deposed on the point of illicit relation in between the accused Sonwa and Chandra Mauli, the husband of the deceased due to which Smt. Sonwa wanted to get rid of the deceased and in prosecution of the common object of all the accused, they committed the murder of the deceased in the aforesaid manner. Be it known that her evidence is based on the information rendered by Smt. Sunita, the daughter of her sister, Smt. Himanchali is not a witness of an eye account of the murder of the deceased.

26. Sanjay P.W.3 has also given a hearsay evidence on the point of the murder of the deceased and his deposition is based on the information rendered by Smt. Sunita. However, his evidence on the point of recovery of dead body at the pointing out of accused Shiv Murti and Sanogi is based on his direct evidence which shall be discussed at appropriate stage in the body of this judgment.

27. Jai Ram, P.W.4, Hemraj, P.W.5, Ambika P.W.6 were projected by the prosecution as the witnesses of factum of taking the dead body by accused persons on tractor and trolley towards the river Saryu after committing her murder, but all these three witnesses have turned hostile and did not support the prosecution case. They expressed their ignorance about the facts of which they were made witness and denied their earlier statements recorded by the Investigating Officer under section 161 Cr.P.C. they have been cross examined by prosecution after getting them declared hostile, but to no gain, therefore, their evidence is not helpful to the prosecution at all.

28. Dr. R.N.Sahi, P.W.7 is a witness who has deposed that he has subjected the dead body of the deceased Smt. Sheela Devi to post mortem examination and noticed that a contusion 6 cm x 4 cm at the left side of the head, 6 cm. above the left ear was found and after opening the injury a haematoma was found. Another injury was the burn injury. Superficial to deep burn injury were found at the whole body of the deceased. Line of redness was present there. Cause of death was ante-mortem injuries. He has proved that the death of deceased might have ensued on 22.3.99 at about 6.00 a.m. In this way this witness has proved that the deceased had received homicidal death.

29. Ram Singar Yadav. S.I. P.W.8 was a witness of arrest of accused Shiv Murti and Sanogi, recovery of tractor trolley. Confessional statements of accused persons were made to him leading to the discovery of dead body from Saryu river at the pointing out of aforesaid two accused persons. This witness has proved the recovery memo of dead body Ext. Ka.2, recovery memo taking the appellants in custody, the tractor trolley and has proved the same as Ext. Ka.4. He has proved the inquest as Ext. Ka.5 which was prepared by him on the dictation of Inspector Shri Krishna Yadav. Other police papers were also proved by him. The evidence of S.I. Sri Krishna Yadav P.W. 9 is on the point of recovery of dead body from Saryu river at the pointing out of aforesaid two accused Shiv Murti and Sanogi. He has proved the entire investigation including the recovery memo of half burnt quilt and mattress and plastic Jerry can recovered from the home of accused Shiv Murti.

30. Ghanshyam Ahirwal, Inspector P.W. 10 is the last Investigating Officer of this case who has filed the charge sheet and proved it as Ext. Ka.14 .

31. Constable 1596 Ram Mahima Pandey P.W.11 is a constable Moharrir at police station Barhalganj. He has drawn the chik report and has proved it as Ext. Ka.15 and G.D. Entry Ext. Ka.16.

32. 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. This view has been taken in a catena of decisions of Hon'ble Supreme Court [See State of T.N. v. Rajendran SCC para 6); State of U.P. v. Dr. Ravindra Prakash Mittal (SCC para 39: AIR para 40); State of Maharashtra vs. Suresh (SCC para 27); Gaesh Lal v. State of Rajasthan (SCC para 15 ) and Gulab Chand v. State of M.P. (SCC para 4).]

33. In the case in hand following incriminating circumstances are there on record against accused appellants :

1.That the relation in between the deceased and appellants were strained. Her husband was not with her rather he was earning his livelihood in Bangkok. Appellants had motive to commit the murder of the deceased to get rid of her.

2.That it is proved by medical evidence that her death was homicidal and not suicidal in view of the presence of ante-mortem injury on her head. haematoma was found on dissection of the said injury. Anti mortem burn injuries were also found on her body.

3.The deceased has been murdered in the house wherein accused Shiv Murti and 5 other were living together.

4.That no explanation is coming forward from the accused appellants as to under what circumstances the murder took place in their own dwelling house.

5.Accused are silent on the point as to whether or not deceased raised any hue or cry during the incident. They do not say that either of them came forward for her rescue.

6.That no information of the incident was given to the police.

7.That without informing the informant or the persons of the parental home of the deceased the dead body was hurriedly removed from the house.

8.That the ashes had been removed from the spot by the family inmates of the house after the incident and it was not found there by the I.O.

9.That half burnt quilt, mattress, sari and kerosene plastic jerry can having kerosene smell were also recovered from the spot i.e. the dwelling house of appellants.

10.That the dead body of the deceased was recovered from the flow of Saryu river at the pointing out of co-accused Sanogi and Shiv Murti.

11.That the dead body was naked although wrapped in two sheets and sand were put therein to increase its weight.

12.That seeing the police the persons who were returning with Tractor and trolley after disposing of the dead body tried to escape their arrest. Three accused succeeded in their escape while two appellants were apprehended by the police.

13.That the said tractor was recovered from the bank of the river Saryu.

14.That mob having come to know the incident damaged the tractor upon which the dead body was carried.

15.That accused appellants gave wrong information that deceased had committed suicide which is falsified by medical evidence and therefore, it is a further incriminating circumstance against the appellants which completes the chain of circumstantial evidence against them.

34. First informant Surendra Yadav P.W. 1 has proved the report. The contents of the report has also been proved by him. His evidence is supported in material particulars with the evidence of his mother Smt. Himanchali P.W.2. Both these witnesses have deposed that the deceased was being tortured by the appellants. Their relations were not cordial and they had motive to commit her murder. The husband of the deceased was in Bangkok . Since the accused appellants did not relish the presence of the deceased in their house, therefore, her husband used to leave her at her Maika in his absence and when he used to come from Bangkok he kept her with him. They had also testified that the husband of the deceased had illicit relation with Smt. Sonwa, therefore, the relation in between Sonwa and the deceased were strained. They have deposed that they were informed by the daughter of the sister of Smt. Himanchali about the murder of the deceased being committed by accused persons and removing the dead body from her dwelling house and carrying it towards Saryu river whereupon they proceeded to police station and informant informed the police in writing the incident which he had heard concerning the cognizable offence to set the police machinery into motion. The evidence of both the witnesses Surendra Yadav P.W.1 and Smt. Himanchali P.W. 2 are corroborating to each other. A lengthy cross examination has been made by defence but nothing material could be elicited. The evidence of the informant is corroborated by the contents of the F.I.R. lodged by him. His evidence has further been corroborated by the evidence of his mother in material particulars. His evidence regarding the recovery of the dead body from Saryu river at the pointing out of accused appellants Sanogi and Shiv Murti has further been corroborated by the reliable evidence of Sanjay P.W. 3. The evidence of these witnesses have been corroborated by the evidence of police officers examined in this case who are the witnesses of the recovery of the dead body from Saryu river and the recovery of half burnt mattress, the quilt and wearing clothes of the deceased along with the recovery of Jerry can having smell of kerosene oil and the recovery of the tractor and trolley from the bank of the river. There is nothing on record to disbelieve their testimony. There is absolutely no reason for the informant to falsely implicate the appellants. It is not an ordinary case, therefore, ordinary rule of evidence that the burden of proof lies on prosecution alone cannot be insisted upon by the court. The prosecution can be supposed to lead the evidence about which it has knowledge or by exercise of due diligence which may come to its knowledge but the evidence of the facts or the circumstances which are beyond their reach rather impossible for them to know the same cannot be supposed to be adduced by the prosecution. True it is, that initial burden to prove the prosecution case is on the prosecution even in case of application under section 106 of the Evidence Act but once it is established that the initial burden has been discharged by the prosecution, accused is under obligation to extend explanation of the facts specially in his knowledge. Keeping silence or giving false information about the incident by them is of no help to them and the court is empowered to draw inferences and presume the existence of certain facts on the basis of facts proved by the prosecution against them. Undoubtedly the deceased was living in the dwelling house of the accused Shiv Murti and others. It is also not denied that in the preceding night of the incident she was living along with the accused persons in the said house. It is also not denied that the incident has happened in their house. The post mortem examination report makes it crystal clear that deceased sustained two types of injuries on her person. The First were superficial to deep burn injuries all over the body and the second injury was the contusion 6 cm x 4 cm on her head. During the course of sustaining all these injuries deceased must have shrieked and raised hue and cry. She must have cried for help and rescue. She must have tried to come out of the house raising alarm to save her life and in that eventuality appellants living in the house, in normal circumstances were supposed to come for her rescue but nothing sort of it appears to have been done by the accused persons which points out towards their guilt and guilt alone. These circumstances are not compatible with their innocence. It appears to be a cool calculated murder in a planned manner and in that eventuality the involvement of appellant Sanogi Yadav cannot be ruled out. It rules out the possibility of committing suicide by the deceased. The removal of the ashes from the spot further lends corroborative support that accused persons were conscious about their guilt and they were trying not to leave an iota of evidence at the spot. Even after the death of the deceased, appellants did not observe the hindu rites and rituals normally observed for cremation. The naked body of the deceased was wrapped in sheets and was thrown into Saryu river. The dead body was lifted by all the accused appellants to be removed from the place of incident i.e. dwelling house of the deceased only with a view to screen the offenders from legal punishment. Therefore, it cannot be said that either of the appellants were innocent. As regards the arguments advanced by the learned counsel for the appellant Sanogi that he is not the family member of the deceased and therefore, he cannot be convicted under section 302/34 IP.C. is not tenable in the facts and circumstances of the case. In the peculiar facts of this case it is the Sanogi and other appellants who may tell as to at which point of time Sanogi joined his hands with the appellants in committing the offence of murder and disappearance of the dead body. This fact could not be in the knowledge of the prosecution and, therefore, prosecution cannot be supposed to lead evidence on this point. The statement of the accused persons recorded under section 313 Cr.P.C. do not reflect anything on the point that accused Sanogi was not present at the time of incident of murder of the deceased. The human experiences warrant that accused Sanogi although living in a different house must have some cordial relations with the remaining appellants Shiv Muirti and others otherwise he would not have come to join his hands with them in this heinous offence and if he is silent on that point regarding a fact which is specially in his knowledge then the inference of the court would be against him and prosecution would be discharged from its burden to prove the guilt of murder by the appellant Sanogi to the hilt specially when he claimed his presence throughout right from the dwelling house of deceased till the bank of Saryu river from where he was arrested.

35. In the cross examination of prosecution witnesses learned counsel of the appellants have suggested that since the deceased was issueless therefore, she was under distress and committed suicide by setting her self ablaze. Accused Sonwa in her statement recorded under section 313 Cr.P.C. stated the same thing. Accused Sanogi has stated in his statement under section 313 Cr.P.C. that after informing the incident to the informant he was going to cremate the body of the deceased on tractor and trolley but meanwhile he was got arrested by the police and falsely implicated in this case. The aforesaid statements of the accused persons were brought on record through the suggestions made to the prosecution witnesses which have been specifically denied by them. The theory of suicide has been proved false by the medical evidence and, therefore, it is a further incriminating circumstance against the appellants which completes the chain of circumstantial evidence against them.

36. In the case of Trimukh Maroti Kirkan vs State of Maharashtra (2006) 10 SCC 681 it was held by the Division Bench of Hon'ble Apex Court of India that "if an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties (See Stirland v. Director of Public Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J in State of Punjab v. Karnail Singh 2003 CriL.J. 3892). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads :-

"(b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him." Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.

37. A somewhat similar question was examined by Hon'ble Supreme Court in connection with section 167 and 178-A of the Sea Customs Act in Collector of Customs Versus D.Bhoormal it would be apt to reproduce paras 30 to 32 of the reports which are as under (SCC pp. 553-54):

"30. It cannot be disputed that in proceedings for imposing penalties under clause (8) of Section 167, to which Section 178-A does not apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But, in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental , of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and - as Prof. Brett felicitously puts it--'all exactness is a fake'. El Dorado of absolute proof being unattainable, the law accepts for it probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent man's estimate as to the probabilities of the case.

31.The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered--to use the words of Lord Mansfield in Blatch v. Archer, Cowp at p.65--'according to the proof which it was in the power of one side to prove, and in the power of the other to have contradicted'. Since it is exceedingly difficult, if not absolutely impossible, for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden.

32.Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the persons concerned in it. On the principle underlying Section 106, Evidence Act, the burden to establish those facts is cast on the person concerned; and if he fails to establish or explain those facts, an adverse inference of fact may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person, and in the result, prove him guilty. As pointed out by Best (in Law of Evidence, 12th Edn., Article 320,p. 291), the 'presumption of innocence is, no doubt, presumptio juris; but every day's practice shows that it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of stolen property', though the latter is only a presumption of fact. Thus the burden on the prosecution or the Department may be considerably lightened even by such presumptions of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that burden, to discharge which, very slight evidence may suffice."

38. The question of burden of proof where some facts are within the personal knowledge of the accused was examined in State of W.B. v. Mir Mohd. Omar. In this case the assailants forcibly dragged the deceased Mahesh from the house where he was taking shelter on account of the fear of the accused and took him away at about 2.30 in the night. Next day in the morning his mangled body was found lying in the hospital. The trial court convicted the accused under Section 364 read with Section 34 IPC and sentenced them to 10 years' RI. The accused preferred an appeal against their conviction before the High Court and the State also filed an appeal challenging the acquittal of the accused for murder charge. The accused had not given any explanation as to what happened to Mahesh after he was abducted by them. The learned Sessions Judge after referring to the law on circumstantial evidence had observed that there was a missing link in the chain of evidence after the deceased was last seen together with the accused persons and the discovery of the dead body in the hospital and had concluded that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt. This Court took note of the provisions of Section 106 of the Evidence Act and laid down the following principle in paras 31 to 34 of the reports : (SCC p. 392):

"31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other and, if the traditional rule relating to burden of proof on the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.

32.In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in conditions such as this.

33.Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct, etc. in relation to the facts of the case.

34.When it is proved to the satisfaction of the Court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the Court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the Court what else happened to Mahesh at least until he was in their custody."

39. It is undisputed that relationship of the appellants with the deceased was not cordial. Informant Surendra Yadav P.W.1 the brother of the deceased and her mother Smt. Himanchali P.W.2 have proved the factum of motive that the relations in between the parties were not cordial. The husband of the deceased used to take his wife from her Maika on his arrival from Bangkok and before departing for Bangkok, he used to send his wife deceased from her Maika on account of the abscess in the leg of the deceased. Appellant Smt. Sonwa with whom the illicit relation with the husband of the deceased is alleged and her family members did not like the deceased. They had left her in her Maika for about 3 ½ years and ultimately on the intervention of the relations they had brought her to their house where she received her unnatural death.

40. Aforesaid fact that deceased was there in her Maika for 3 ½ years is not challenged by the accused appellants.

41. The presence of fecal matters and gases in the large intestine of the deceased probabilise the incident being committed sometime in the morning of the day of incident which fortifies the prosecution case on this point. If a lady commits suicide in the house of the accused by pouring kerosene oil upon her and setting herself ablaze naturally she would raise hue and cry and the remains of ashes would be there on the spot. Appellants do not say that as to when the incident took place or when she committed suicide? None of the accused say that any hue or cry was ever made by the deceased during incident. Their silence on this natural point tells heavily against them. The particles of the ashes of the burnt quilt, mattress and the wearing cloths of the deceased were found missing from the spot by the I.O. who had removed the same is a mystery in the womb of appellants. What they did when the deceased was being burnt to rescue her life? why had they not informed the police about the incident even if it was suicide to enable the police to prepare inquest. They do not say anything on these points only because that they do not have any explanation thereof. The presence of contusion injury on the head of deceased 6 cm x 4 cm at the left side of the head of the deceased 6 cm above the left ear having haematoma rules out the possibility of committing suicide by the deceased, therefore it was a substantive offence of murder and whoever knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give deserves punishment under the scheme of Indian Penal Code in the case of Bhagwan Swaroop Versus State of Rajasthan (1991) Cr.L.J. 3123 (3133) (SC) it has been held that assuming that the prosecution has not positively proved that the death was homicidal yet from medical evidence it is clear that it was not a natural death and consequently the death, at least be noted as one of the suicide. Even in the case of suicide and offence of abetment punishable under section 306 I.P.C. is inherent. Therefore, even in the case of suicide there is an obligation on the person who knows or has reason to believe that such a suicidal death has occurred, to give information.

42. Dr. R.N.Sahi, P.W. 7 has proved the injuries sustained by deceased which go to establish that the deceased has been done to death by inflicting injury including contusion and superficial to deep burn injuries and the cause of death was shock as a result of ante-mortem injuries. It is, therefore, established beyond doubt that it was not a case of suicide rather it was a case of murder. If the appellants, the inhabitants of the house do not explain as to how the deceased was murdered in their own house the strong presumption is against them unless they disprove the aforesaid presumption by adducing evidence which are specially within their knowledge as envisaged under section 106 of the Evidence Act, appellants could discharge its burden. Naked dead body of the deceased wrapped in clothes filled with sands removed from the scene of incident without informing the police, without it being subjected to inquest and without informing the parents of the deceased and hurriedly disposing it of in Saryu river without observing the recognised mode of cremation of a hindu dead body as per the rites, rituals, customs as prevalent under hindu mythology, there is no evidence on record led by accused that the dead body of a legally wedded lady who has received unnatural death could be cremated in any circumstances in the manner which was adopted by the appellants in this case, which has been recovered at the pointing out of accused Sanogi and Shiv Murti compel this court to draw a presumption that accused persons who belonged to the house of the deceased have committed her murder. In Mukund alias Kundu Mishra Vs. State of U.P. (1997) 4 SCC 359 it was held that a court may legitimately draw a presumption not only of the fact that the person in whose possession the stolen articles were found committed the robbery but also that he committed the murder.

43. On the basis of the same analogy in the light of the evidence on record and all attending incriminating circumstances of the case, we legitimately presume that appellants have committed the murder of the deceased and caused disappearance of the evidence of the offence of murder of Smt. Sheela Devi in prosecution of their common object. Be it known that a presumption of fact is a type of circumstantial evidence which in the absence of direct evidence becomes a valuable tool in the hands of the court to reach the truth without unduly diluting the presumption in favour of the innocence of the accused which is the foundation of our criminal Law. It is an inference of fact drawn from another proved fact taking due note of common experience and common course of events. HOLMES J. in Greer v. U.S. [245 USR 559] remarked " a presumption upon a matter of fact, when it is not merely a disguise for some other principle, means that common experience shows the fact to be so generally true that courts may notice the truth". Section 114 of the Evidence Act shows the way to the Court in its endeavour to discern the truth and to arrive at a finding with reasonable certainty. Under the Indian Evidence Act, the guiding rules for drawing the presumption are set out broadly in the section. Section 114 enjoins: "the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to facts of the particular case." Having due regard to the germane considerations set out in the section, certain presumptions which the Court can draw are illustratively set out. It is obvious that they are not exhaustive or comprehensive. The presumption under Section 114 is, of course, rebuttable. When once the presumption is drawn, the duty of producing evidence to the contra so as to rebut the presumption is cast on the party who is subjected to the rigour of that presumption. Before drawing the presumption as to the existence of a fact on which there is no direct evidence, the facts of the particular case should remain uppermost in the mind of the Judge. These facts should be looked into from the angle of common sense, common experience of men and matters and then a conscious decision has to be arrived at whether to draw the presumption or not. Among the illustrations appended to Section 114 of the Evidence Act, the very first one is what concerns us in the present case : The Court may presume-- that a man who is in possession of stolen goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession." Limbaji v. State of Maharashtra, AIR 2002 SC 491 (494-95) : (2001) 10 scc 340: 2002 CrLJ 590: (2002) 1 Crimes 63 (SC).

44. Since two accused namely Rajesh and Smt. Lalita have been acquitted by the trial court and no criminal appeal has been preferred against the judgment and order of acquittal, therefore we cannot undo or reverse the said finding of the trial court, irrespective of the fact that the ground of acquittal may not be tenable in the eyes of law and we are unable to approve those findings. But at the same time no benefit thereof can be extended to the appellants and we do not find substance in the contention of the learned counsel for the appellant that since two accused persons have been acquitted by the trial court and the evidence led by the prosecution is same against all the accused including the appellants therefore, the appellants are entitled for their acquittal in the offences they are charged.

45. As regards the charge framed under section 201 I.P.C. the clear evidence of complainant Surendra Yadav P.W. 1, Sanjay P.W. 3 and the S.I. Shri Rama Shankar Yadav P.W. 8, Shri Krishna Yadav, S.I. P.W.9 are there on record establishing the fact that accused appellant Sanogi and Shiv Murti were apprehended by police and at their pointing out the dead body of the deceased was removed from Saryu river and it were these accused persons who took out the dead body from main stream of the river. The damage caused to their tractor and trolley by public at large at the bank of river when they were returning from disposing of the dead body in the river lends a further corroborative support to their culpability , as per the common human experience that the public might have enraged on the conduct of the accused persons and damaged the tractor. Although 5 accused persons are said to have engaged in disappearance of the dead body to screen themselves and other accused from legal punishment, but three of them are said to have fled away. In the arrest and recovery memo Ext. Ka.2 it has been mentioned that Sanogi and Shiv Murti were arrested at spot who confessed the guilt of disposing of the dead body of deceased Sheela Devi in Saryu river and stated that the accused appellants Awadh Bihari, Ram Kripal and Rajesh had also brought the dead body along with them on the tractor and trolley but they fled away after noticing the arrival of the police at the bank of river Saryu. Accused Smt. Sonwa is not said to have gone on tractor along with dead body to dispose it of in Saryu river, but the prosecution story of the murder of the deceased revolve around her and she is a lady and caused the removal of the dead body from the house by remaining accused for the purpose of its disappearance to screen herself from legal punishment therefore, she has rightly been convicted and sentenced under section 302/201 I.P.C. as well specially when she has not adduced any evidence or explained her conduct that she did not connive with the rest of appellants in causing disappearance of the evidence of murder.

46. On the basis of same analogy and in the light of the evidence available on record and also considering all attending incriminating circumstances of this case, we legitimately presume that appellants in furtherance of their common object of all have committed the murder of Smt. Sheela Devi followed by disappearance of evidence of her murder. It would not be out of place to mention here that a presumption of fact is a type of circumstantial evidence.

47. In the result both the Criminal Appeals lack merit hence stand dismissed and the impugned judgment and order passed by the trial court is upheld accordingly.

48. Accused Shiv Murti is in jail and he need not surrender. Remaining accused appellants Smt. Sonwa, Awadh Bihari, Ram Kripal and Sanogi Yadav are on bail, their bail stand cancelled, they be taken into custody to serve out the sentence awarded to them by the learned trial court. Learned C.J.M. concerned is directed to ensure their arrest if they do not surrender within two months before him and submit compliance report.

Dated: 24 July, 2012.

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