Rajjan vs State Of U.P.
2015 Latest Caselaw 1930 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved Judgement
 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
****
 
Case :- CRIMINAL APPEAL No. - 7011 of 2008
 

 
Appellant :- Rajjan
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Kamlesh Shukla,Alok Ranjan Mishra,Ashok Kr.Nigam,G S Chaturvedi,Jitendra Singh,Rakesh Kumar Yadav,Z.H. Hanfi
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Surendra Vikram Singh Rathore,J.

Hon'ble Raghvendra Kumar,J.

(Per Surendra Vikram Singh Rathore, J.)

1.Under challenge in the instant Criminal Appeal is the judgment and order dated 30.09.2008 passed by Additional Sessions Judge/Special Judge (E.C. Act), Allahabad, in Sessions Trial No. 320 of 1990, arising out of Case Crime No. 29 of 1990, Police Station Khuldabad, District Allahabad, whereby appellant Rajjan was convicted for the offence under Section 302 IPC and was sentenced to undergo imprisonment for life and also with fine of Rs.2,000/-. He was further convicted for the offence under Section 201 IPC and was sentenced with rigorous imprisonment for a period of three years and also with fine of Rs.1,000/-. In default of payment of entire fine amount, the appellant was directed to undergo simple imprisonment for a period of six months. The other accused persons namely Sangam Lal, Ram Singh, Chhote Lal and Arjun, who also faced trial along with appellant Rajjan were acquitted of all the charges levelled against them.

2.In brief, the case of the prosecution was that Punnu Lal, who happens to be the father of the deceased, had lodged a first information report on 15.01.1990 at 04.00 PM at Police Station Khuldabad alleging therein that his daughter was married with appellant Rajjan. On 14.01.1990 in the night, she has been killed by strangulation and thereafter her dead body has been set on fire. She was living in CPWD office campus. Information of this incident was given to the brother of the deceased by some other person. Thereafter, the complainant side came to the house of the appellant and found that appellant Rajjan was absconding. The complainant requested the father of the appellant to call his son (appellant) but he did not turn up throughout the day. All the relatives also reached there but Rajjan did not come back to his place of living. On the basis of this information, first information report was lodged against unknown persons and case was investigated. From the place of occurrence, the Investigating Officer recovered burnt papers, blackening was also collected from the wall which was the result of smoke of fire and its memo was prepared. After completing the inquest proceedings, the dead body was sealed and was sent for post-mortem, which was conducted on 16.01.1990 at 03.15 PM. According to the post-mortem report, post mortem burn injuries were present all over the body except part of both buttocks and left sole. Hairs were singed. No line of redness and vesicles seen. Skin charred at places. Hyoid bone was intact. Larynx and trachea were congested. No carbon particles and no blood stains were present. Both lungs were congested. Heart was empty and the deceased was having pregnancy of about eight weeks. The doctor could not ascertain the cause of death, hence, Viscera was preserved.

3.The case of the defence was that appellant Rajjan was a Driver. He was on his duty. The incident had taken place in the winter season i.e. month of January. There was a room heater and the deceased came into contact of the said heater in the night and died due to electrocution. Since there was nobody present in the house, therefore, throughout the night she remained in contact of electric current.

4.In order to prove its case, the prosecution has examined PW-1 Punnu Lal - the complainant, PW-2 Shiv Dani, PW-3 Ram Jatan - brother of the deceased, PW-4 Sant Lal - brother of the deceased (all these witnesses have been examined to prove the fact of marriage and the motive of the appellant to cause her death), PW-5 S.S. Ashutosh, Additional District Magistrate, who has conducted the inquest proceedings and PW-6 Dr. Brijendra Singh, who has performed autopsy on the body of the deceased. All the papers which were prepared during investigation were admitted by the counsel for the defence under Section 294 Cr.P.C., therefore, the witnesses to prove those documents were not examined during trial.

5.No evidence in defence was adduced on behalf of the appellant.

6.The submission of learned counsel for the appellant was two folds. He has submitted that some of the witnesses have stated that the cause of death was that the deceased was of a dark complexion and some of the witnesses have stated that there was demand of money for purchase of a truck, which could not be fulfilled. So the prosecution was not sure as to why she has been killed. It has also been argued that appellant was not present in the house in the said night as he was on his duty. The cause of death as explained by the accused/appellant was that the deceased died due to electrocution which she suffered by coming into contact with the heater but the learned trial court has not considered all these aspects in correct perspective, and therefore, the judgment rendered by the learned trial court becomes unsustainable under law.

7.Learned AGA, appearing for the State, has submitted that the deceased died in the house of the appellant. The post-mortem burn injuries were found on the body of the deceased, which show that the cause of death was not electrocution because the burn injuries were post-mortem and not ante-mortem. Learned AGA has also submitted that on behalf of the appellant, no evidence has been produced to support his plea of alibi that he was on duty nor he could satisfactory explain the cause of death and the circumstances under which the incident took place. The appellant was under legal obligation to satisfactorily explain the said circumstances in view of Section 106 of the Indian Evidence Act. Learned trial court has appreciated the evidence in correct perspective and has rightly convicted the appellant. So, the judgment of the trial court is based on reasons and it need not to be interfered with in the instant appeal.

8.In the instant case, learned trial court has framed charges against all the accused persons under Sections 302 IPC read with Section 149 IPC, 201 IPC and also under Sections 304-B and 498-A IPC. As stated earlier all the accused persons including the present appellant have been acquitted of the charges under Sections 304-B and 498-A IPC. Admittedly, no appeal has been preferred challenging the said acquittal of all other accused persons. It is only the present appellant Rajjan, who has been convicted for the offence under Section 302 IPC. Prosecution has not come with any direct evidence to prove this offence and has proposed to prove its case on the basis of circumstantial evidence. Since the appellant has not been convicted under Section 304-B IPC, so the presumption under Section 113-B of the Indian Evidence Act was not available to the prosecution.

9.Before proceeding further, we would like to consider the standard of proof which is required under law for proving the case on the basis of circumstantial evidence.

10.Hon'ble the Apex Court in the case of S.K. Yusuf v. State of West Bengal reported in AIR 2011 SC 2283 in para 26 has held as under:

"Undoubtedly, conviction can be based solely on circumstantial evidence. However, the court must bear in mind while deciding the case involving the commission of serious offence based on circumstantial evidence that the prosecution case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence case. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. 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."

11. Hon'ble the Apex Court in the aforesaid case has followed its earlier pronouncements in the following cases:

"Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622, Krishnan v. State represented by Inspector of Police (2008) 15 SCC 430 and Wakkar and another v. State of Uttar Pradesh (2011) 3 SCC 306." In the case of Haresh Mohandas Rajput v. State of Maharashtra 2011 (12) SCC 56, Hon'ble Apex Court following its earlier decision in the case of Krishnan v. State represented by Inspector of Police (2008) 15 SCC 430 observed that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

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

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

(iii) 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

(iv) 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."

Though a conviction may be based solely on circumstantial evidence, however, the Court must bear in mind the aforesaid tests while deciding a case involving the commission of a serious offence in a gruesome manner.

12. Hon'ble the Apex Court in the case of Manthuri Laxmi Narsaiah Vs. State of A.P. reported in (2011) 14 SCC 117 has held in paragraph no. 6 as under:-

"6. It is by now well settled that in a case relating to circumstantial evidence the chain of circumstances has to be spelt out by the prosecution and if even one link in the chain is broken the accused must get the benefit thereof. We are of the opinion that the present is in fact a case of no evidence."

13. Likewise in the case of Mustkeem Vs. State of Rajasthan reported in (2011) 11 SCC 724, Hon'ble the Apex Court in paragraph no. 24 has held as under:-

"24. In a most celebrated case of this Court, Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116 in para 153, some cardinal principles regarding the appreciation of circumstantial evidence have been postulated. Whenever the case is based on circumstantial evidence the following features are required to be complied with. It would be beneficial to repeat the same salient features once again which are as under: (SCC p. 185)

(i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely "may be" fully established;

(ii) 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;

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

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

(v) 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."

14. The aforementioned judgments have been followed in a recent judgment in the case of Sangili alias Sanganathan Vs. State of Tamilnadu reported in (2014) 10 SCC 264.

15. In the instant case, there are certain facts which are admitted. The deceased was the wife of the appellant. She was living in a room which was in the possession of the appellant. Post-mortem burn injuries were found on the body of the deceased and the appellant absconded from his house in spite of the fact that he was called on the following day by the family members of the deceased and the cause of death was not electrocution as explained by the accused/appellant.

16. The appellant has come with a definite defence that while sleeping in the room, the deceased came into contact of the room heater and she died because of electrocution.

17.During the course of argument, learned counsel for the appellant has also submitted that the appellant was a driver in CPWD office and he was on his duty and was not present in the room at the relevant time. But law is settled on the point that where accused comes with a plea of alibi then it is his duty to prove the said plea as a fact. Reference on this point may be made to the pronouncement of Hon'ble the Apex Court in the case of Jitendra Kumar v. State of Haryana reported in (2012) 6 SCC 204 (Para 51).

18.Admittedly, no evidence has been led in this regard by the appellant and not even a suggestion has been given to any witness that he was not present in the room where the incident is alleged to have taken place. Apart from it, in the site plan, which was prepared immediately after registration of the first information report, it was specifically mentioned that room number 3 was the room where the deceased and the appellant were living. However, the dead body and blackening was found in the adjoining room which is shown as No.4 After the incident, the dead body was removed from the said room and was placed at the other place shown Tin shade as no.15 shown in the site plan. From the room, where dead body was found, blackening caused due to smoke and some burnt papers were also taken into custody by the police and its memo was prepared. The genuineness of the said site plan has been admitted by the learned counsel for the appellant and the Investigating Officer was not called for cross examination. So the admitted fact situation is that the deceased was the wife of the appellant and they used to live in the same room. Since the appellant has failed to prove the fact that he was not present in the said room on the date of incident, therefore, learned trial court has rightly concluded that the appellant was also present in the said room.

19.In such circumstances, when the incident had taken place inside the room and the wife has been murdered then the provisions of 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."

20.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)"

21.The appellant has come with a specific defence that the cause of death of the deceased was that she came into contact with the room heater. But this defence is apparently false because if the deceased would have come into contact with the electricity in any manner, then the cause of death would have been the electrocution and there was absolutely no occasion for existence of the post-mortem burn injuries. Apart from it, in that position the burn injuries would also have been found on the buttocks and sole. Great emphasis has been laid by learned counsel for the appellant on the fact that in the instant case, the cause of death could not be ascertained in the post-mortem examination and the doctor has preserved Viscera. Admittedly, viscera was sent for test to Forensic Science Laboratory but the report of the same was not on record. In the instant case, the evidence of the witnesses was recorded after a long gap of about 12 years. But in spite of such a long gap, the prosecution has failed to bring on record the said viscera report. Learned trial court has also expressed its anguish and displeasure on the manner in which the prosecution of the case has been conducted. We are in agreement with the said observation of the learned trial court that the prosecution of this case has been conducted in a very negligent manner. We would like to add that in the same negligent manner the case has been conducted on behalf of the defence. Virtually there is no effective cross examination of any witness. Earlier the dictum was that no innocent person should be punished even if hundred guilty may escape. But by change of time, the said dictum has changed and now it reads that "no innocent person should be convicted but letting the guilty escape is also not doing justice according to law". In the instant case, the prosecution has come with a definite case that the deceased was murdered by strangulation and thereafter her body was set at fire to destroy the evidence. But, as stated earlier, the incident had taken place inside the room of the appellant, which was in his possession. So the prosecution can only guess the cause of death and it was only and only the appellant who had to explain as to how his wife died. The post-mortem report reveals that the tongue of the deceased was protruded out and it was pressed between the teeth. Her fists were closed. Though the hyoid bone was not fractured but the larynx were congested. Learned counsel for the appellant has also submitted that in the throat no carbon particles were found. This fact also goes against the appellant because the prosecution has come with a definite case that after her murder, the deceased was set at fire. So after the death, there was no question of inhaling any smoke which might have resulted in smoke particles in the respiratory system. During trial, a question was put to the doctor whether such injuries could have been caused by coming into contact of the room heater. The doctor has avoided to reply this question and has stated that this question can be replied by the forensic expert and not by him. It appears that the doctor has avoided to reply this question. When death is caused by electrocution then it carries certain typical characteristics. In Modi's Medical Jurisprudence and Toxicology 23rd Edition at page 652 and 653, Modi has written external and internal post-mortem burn appearance in cases of death by electrocution, which reads as under:-

Post-mortem Appearance

(i)External

The face is generally pale, the eyes are congested and the pupils are dilated. Local lesions are found at the points of entrance usually in the hands or on fingers and at exit of the electric current mostly from the feet or opposite hand. Gross examination, at times, may fail to differentiate between entry and exit marks of electrical current. Basically, the size and shape of an electrical burn are a function of electrical conductivity in a particular place. A well moistened skin may display no electrical burn while a thick dry skin may exhibit a well-marked electrical burn. The electrical mark differs in close or loose contact of the electrode. Marks may be absent, especially on the exit point in some fatal cases. Polson has stated that an electric mark may simulate a bullet wound. High voltage burns may involve large areas, which present crocodile flash burns. A high voltage electric arc generates high temperature (up to 7,000°C) and produce injuries in which the characteristics of the primary electric lesion are over shadowed by ordinary burning. The lesion at the point of exit is more severe and often shows radiating tears.

There may be cyanosis in death from respiratory paralysis. Evidence of a blunt injury may be present according to the circumstances of the fall. In a high voltage current, the tetanic convulsions may result in fractures of the bone.

(ii)Internal

The lungs are often found oedematous, and the other internal organs are congested. Minute haemorrhages are seen in the brain and meninges, and Tardieu spots are found on the pleurae, pericardium and endocardium. Ecchymoses may be noticed along the path of the current. Changes in the nerve cells and fragmentation of the axons in the peripheral nerves have been reported. Extensive muscle damage may produce myoglobinurea. KC Jacob report on 24 autopsies in Madras of death from electric current between 1950-1955 of which nine were due to high current tension and 15 low current, alternating or direct, showed that they occurred mostly among males of second and third decade. Of them, 12 cases occurred during the hot season of April to July, when sweating and moist hands are more common. Twenty victims died instantaneously and the main post-mortem findings were:

Non-specific:

(a) General visceral congestion and fluid or clotted blood in the heart chambers in all the 24 cases, Tradiu's spots in 15 cases.

External lesions:

(a) Not too typical yellowish punctate elliptical or linear marks of current in 12 cases.

(b) Very marked burns in 13 cases.

(c) Charring in 2 cases.

(d) Injuries like lacerations, burns and fractures were present in 6 cases. In 16 cases, the distribution of the marks and burns was in the left hand or left side of the body.

22.In the instant case, the doctor has not noted any ante-mortem electrical burn at any part of the body nor any of the above mentioned symptoms were found on the body. Apart from it, in the statement under Section 313 Cr.P.C., the appellant has totally denied the case and has not discharged his burden which was on him in view of Section 106 of the Indian Evidence Act.

23.Effect of non-explanation of an incriminating circumstance has been considered by Hon'ble the Apex Court in the case of Rohtash Kumar v. State of Haryana reported in (2013) 14 SCC 434 in paragraph no. 22 has observed as under:-

"22. It is obligatory on the part of the accused while being examined Under Section 313 Code of Criminal Procedure, to furnish some explanation with respect to the incriminating circumstances associated with him, and the court must take note of such explanation even in a case of circumstantial evidence, to decide whether or not, the chain of circumstances is complete. [Vide: Musheer Khan @ Badshah Khan and Anr. v. State of Madhya Pradesh AIR 2010 SC 762; and Dr. Sunil Clifford Daniel (supra)]".

24.Thus, the appellant, in the instant case, has come with a totally false defence and he also failed to explain the said circumstances under Section 313 Cr.P.C.

25.Hon'ble the Apex Court in the case of Joseph s/o Koveli Poulo Vs. State of Kerala reported in (2000) 5 SCC 197, in paragraph no. 14 has held as under:-

"14. ....During the time of questioning under Section 313 Cr.P.C., the appellant instead of making at least an attempt to explain or clarify the incriminating circumstances inculpating him, and connecting him with the crime by his adamant attitude of total denial of everything when those circumstances were brought to his notice by the Court not only lost the opportunity but stood self condemned. Such incriminating links of facts could, it at all, have .been only explained by the appellant, and by nobody else they being personally and exclusively within his knowledge. Of late, Courts have, from the falsity of the defence plea and false answers given to Court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed see State of Maharashtra v. Suresh (2000) 1 SCC 471. That missing link to connect the appellant-accused, we find in this case provided by the blunt and outright denial of every one and all the incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connect the accused with the death and the cause for the death of Gracy. .............."

26. Similar view has been taken by Hon'ble the Apex Court in the case of Kuldeep Singh and others Vs. State of Rajasthan reported in (2000) 5 SCC 7 in paragraph no. 18, which reads as under:-

"18. In the case of Swapan Patra v. State of W.P. (1999) 9 SCC 242 it has been held that it is a well-settled principle that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found to be untrue then the same offers an additional link in the chain of circumstances to complete the chain. The same principle is reiterated in the case of State of Maharashtra v. Suresh (2000) 1 SCC 471. In this case it has been held that a false answer offered by the accused when his attention was drawn to a circumstance renders that circumstance capable of inculpating him. It is held that in a situation like this a false answer can also be counted as providing "a missing link" for completing the chain."

27. In the case of Anthony D'souza and others Vs. State of Karnataka reported in (2003) 1 SCC 259, Hon'ble the Apex Court has expressed the same view.

28. Thus, the appellant has come with a false defence. So, it also completes the missing link. The deceased was aged about 20 years. There is absolutely no evidence nor even a suggestion that she was suffering from any ailment. The appellant has come with false defence regarding the cause of her death. The position of the body, as noted by the doctor, in the post-mortem report shows that her tongue was protruded out and it was pressed between her teeth. It shows that she has been murdered in any other manner and the appellant, who was the best person being in possession of the same room in the night along with his wife and was the only person to disclose the cause of death, has utterly failed to explain the same. On the contrary, he has come with a false defence.

29. It is true that in the instant case Viscera report is not on record and the learned trial court has expressed its displeasure on this aspect. We also express our anguish regarding the manner in which the prosecution of a murder has been conducted. But whether the absence of Viscera report would lead to acquittal of the accused in spite of the fact that there are voluminous circumstances against accused showing his involvement in the offence. We would like to refer some pronouncements of Hon'ble the Apex Court on this point. In the case of Joshinder Yadav v. State of Bihar reported in (2014) 4 SCC 42, there was no FSL report and while dealing with the situation, Hon'ble the Apex Court in paragraph 21 has observed as under:-

"21. We are aware that in some cases where there is other clinching evidence on record to establish the case of poisoning, this Court has proceeded to convict the accused even in the absence of viscera report. In Bhupendra v. State of Madhya Pradesh[2013 (13) Scale 52], this Court was concerned with a case where the viscera report was not on record, but, there was enough evidence of poisoning. The accused was charged under Section 304-B and 306 of the IPC. Drawing support from the presumptions under Section 113B and 113A of the Evidence Act, 1872 and, after referring to relevant judgments on the point, this Court held that death of the deceased was caused by poisoning. The relevant observation of this Court could be quoted.

"26. These decisions clearly bring out that a chemical examination of the viscera is not mandatory in every case of a dowry death; even when a viscera report is sought for, its absence is not necessarily fatal to the case of the prosecution when an unnatural death punishable under Section 304-B of the IPC or under Section 306 of the IPC takes place; in a case of an unnatural death inviting Section 304-B of the IPC (read with the presumption under Section 113-B of the Evidence Act, 1872) or Section 306 of the IPC (read with the presumption under Section 113-A of the Evidence Act, 1872) as long as there is evidence of poisoning, identification of the poison may not be absolutely necessary."

30. In the aforesaid judgment in paragraph 23, Hon'ble the Apex Court has expressed its displeasure and has observed as under:-

"We must note that this is the third case which this Court has noticed in a short span of two months where, in a case of suspected poisoning, viscera report is not brought on record. We express our extreme displeasure about the way in which such serious cases are dealt with. We wonder whether these lapses are the result of inadvertence or they are a calculated move to frustrate the prosecution. Though the FSL report is not mandatory in all cases, in cases where poisoning is suspected, it would be advisable and in the interest of justice to ensure that the viscera is sent to the FSL and the FSL report is obtained. This is because not in all cases there is adequate strong other evidence on record to prove that the deceased was administered poison by the accused. In a criminal trial the Investigating Officer, the Prosecutor and the Court play a very important role. The court's prime duty is to find out the truth. The Investigating Officer, the Prosecutor and the Courts must work in sync and ensure that the guilty are punished by bringing on record adequate credible legal evidence. If the Investigating Officer stumbles, the Prosecutor must pull him up and take necessary steps to rectify the lacunae. The Criminal Court must be alert, it must oversee their actions and, in case, it suspects foul play, it must use its vast powers and frustrate any attempt to set at naught a genuine prosecution. Perhaps, the instant case would have been further strengthened had the viscera been sent to the FSL and the FSL report was on record. These scientific tests are of vital importance to a criminal case, particularly when the witnesses are increasingly showing a tendency to turn hostile. In the instant case all those witnesses who spoke about poisoning turned hostile. Had the viscera report been on record and the case of poisoning was true, the prosecution would have been on still firmer grounds."

31.In the instant case, it is true that the FSL report is not on record. But simply because the prosecution of this case has been conducted negligently and no effort was made to bring on record the said FSL report would not adversely affect the case of the prosecution because in the instant case, the appellant after the death of the deceased had set the deceased on fire resulting in post-mortem burn injuries. Such an act of the appellant gives rise to the only conclusion that this act of the appellant was only with an intention to destroy the evidence which could have furnished light regarding the cause of death of his wife. Virtually he has been successful in his such intentions because the doctor, in the absence of any such signs, could not give any positive finding regarding the cause of death of the deceased. We are of the considered view that the condition of the dead body particularly the tongue which was protruded out and was pressed between her teeth and fists were closed, the only conclusion that can be derived was that she was murdered and thereafter she was set ablaze. The appellant has absolutely failed to discharge the burden which was on him in view of Section 106 of the Indian Evidence Act. No heater was found by the Investigating Officer during investigation as the same has not been shown in the site plan. The said site plan was admitted and the Investigating Officer was not even called for cross examination on this point. Apart from it, the appellant has absolutely failed to adduce any evidence that he was not present in the said room at the relevant time. Perusal of the site plan, genuineness of which has been admitted by the appellant, shows that the dead body was removed from the said place and an effort was also made to destroy the evidence and signs of fire in the said room. The appellant has come with an absolutely false defence that the deceased died because of electrocution. As discussed earlier, the post-mortem external and internal signs of electrocution were not present on the body of the deceased. Thus, the circumstances give rise to the only conclusion that the appellant was the person who committed murder of his wife and thereafter, in order to destroy the evidence regarding the cause of death of his wife, he set the dead body ablaze. So, in our considered view, the chain of circumstances against the appellant was absolutely complete. The circumstances, which are admitted and which have been proved, give rise to the only conclusion that the appellant was the person who committed murder of his wife Smt. Ballo and accordingly learned trial court has not committed any illegality in convicting the appellant.

32.In the result, the appeal sans merit, deserves to be dismissed and is hereby dismissed.

33.Office is directed to communicate this order to the court concerned for immediate compliance and also to send back lower court record.

Dated: 21st August, 2015 (Raghvendra Kumar, J.) (S.V.S. Rathore, J.)

A. Katiyar