Manoj Kumar Tiwari vs State Of U.P.
2015 Latest Caselaw 1295 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved Judgement
 
Case :- CRIMINAL APPEAL No. - 6891 of 2006
 

 
Appellant :- Manoj Kumar Tiwari
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Rajeev Lochan Shukla,Dilip Kumar,Raghavendra Dwivedi,S.S.Shukla,Y.Dubey,Yaduendra Dwivedi
 
Counsel for Respondent :- Govt. Advocate,R.B.Sahai,V.K. Baranwal
 
Along with
 
Case :- CRIMINAL APPEAL No. - 6585 of 2006
 

 
Appellant :- Smt. Amrawati Devi
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Rajeev Lochan Shukla,S.S.Shukla
 
Counsel for Respondent :- Govt. Advocate,R.B. Sahai,V.K. Baranwal
 
And
 
Case :- CRIMINAL APPEAL No. - 6069 of 2006
 

 
Appellant :- Lallan Tiwari
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Rajeev Lochan Shukla
 
Counsel for Respondent :- Govt. Advocate,V.K.Bansal
 

 
Hon'ble Surendra Vikram Singh Rathore,J.

Hon'ble Raghvendra Kumar,J.

(Per Surendra Vikram Singh Rathore, J.)

1.All the aforesaid criminal appeals arise out of a common judgment, as such, they are being disposed of by a common judgment.

2.Challenge in the aforesaid criminal appeals is the judgment and order dated 26.09.2006 passed by Additional Sessions Judge/Fast Track Court No.20, Allahabad in Sessions Trial No. 19 of 2002, arising out of Case Crime No.127 of 2001, Police Station Audyogic Kshetra, Allahabad, whereby the appellants Manoj Kumar Tiwari, Amrawati Devi and Lallan Tiwari were convicted for the offence under Section 201 IPC and were sentenced to undergo 7 years' rigorous imprisonment each and fine of Rs.5000/- each with default stipulation of 3 months' additional imprisonment. Appellants Manoj Kumar Tiwari and Amrawati were further convicted for the offence under Section 302 IPC and were sentenced to undergo rigorous imprisonment for life and also with fine of Rs.10,000/- each with default stipulation of 6 months additional imprisonment. Appellants Manoj Kumar Tiwari and Amrawati were also convicted for the offence under Section 498-A IPC and were sentenced to undergo rigorous imprisonment for a period of three years each and also with fine of Rs.10,000/- each with default stipulation of 6 months additional imprisonment. Appellants Manoj Kumar Tiwari and Amrawati were further convicted for the offence under Section 4 of the Dowry Prohibition Act and were sentenced to undergo rigorous imprisonment for a period of two years each and also with fine of Rs.10,000/- each with default stipulation of 6 months additional imprisonment. All the sentences were directed to run concurrently. All the appellants were acquitted of the charges under Section 3 of the Dowry Prohibition Act. Appellant Lallan Tiwari was acquitted of the charges under Sections 302, 498-A IPC and Sections 3 and 4 of the Dowry Prohibition Act.

3.In brief, appellant Manoj Kumar Tiwari happens to be the husband of the deceased and Smt. Amrawati Devi and Lallan happen to be the mother-in-law and uncle-in-law of the deceased respectively.

4.According to the prosecution case, on 08.09.2001, a first information report was lodged at Police Station Audyogic Kshetra, Naini, Allahabad, by Shri Anjani Prasad Upadhyay, brother of the deceased, mentioning therein that marriage of his sister Arti Devi was solemnized about six years' ago with appellant Manoj Kumar Tiwari. Out of said wedlock, Km. Rachna was born and at the time of incident, the deceased was in her family way. Manoj Kumar Tiwari and his mother, in order to fulfil their demands of colour TV, VCR and cash money, used to treat her sister with cruelty and threaten her with dire consequences. Because of this cruel behaviour of the appellants, the deceased started living in the house of the complainant for the last about three years. Thereafter, appellant Manoj Kumar Tiwari and his mother came to the house of the complainant and made a request for her Vida. About four months' prior to this incident deceased had gone to her matrimonial home. On 07.09.2001 at about 09.00 PM, appellant Manoj Kumar Tiwari informed the complainant on phone that his sister is missing from her house since last night. On this information, on the next day morning the complainant reached at the house of the appellant Manoj Kumar Tiwari and at that time, appellants were not present in the house. The complainant made an inquiry from the persons living in the vicinity and also inquired from the close relatives but no one could furnish any information regarding his sister then the complainant expressed an apprehension that his sister Arti Devi has been done to death by the appellant Manoj Kumar Tiwari, his mother Amrawati Devi in prosecution of a conspiracy hatched with other persons. Several persons of the village are aware of this incident but nobody is ready to disclose this incident.

5.On this information, the case was registered on 08.09.2001 at 1530 hours under Sections 498-A, 304-B IPC and Section ¾ of the Dowry Prohibition Act. Its investigation was entrusted to Sushri Babita Sahu, Circle Officer Karchhna, Allahabad. The Investigating Officer went to the place of occurrence and recorded evidence and after collecting evidence, the Investigating Officer was of the opinion that no evidence is available for the offence under Section 304-B IPC and thereafter, she converted the offence under Section 498-A, 364 IPC and Section ¾ of the Dowry Prohibition Act. Further investigation of this case was conducted by S.O. Ram Awadh Pandey and thereafter, the investigation was conducted by S.O. Sarvesh Kumar Mishra. After completing the investigation, the police filed charge sheet under Sections 498-A, 302, 201 IPC and Section ¾ of the Dowry Prohibition Act.

6.The defence of the appellant Manoj Kumar Tiwari was that his wife, out of her own wish had left her house without any information to him and when this fact came to his notice then he immediately made efforts to search her out and when his efforts failed then he immediately informed the family members of the victim's family.

7.During course of investigation, on the basis of information furnished by the complainant, the appellant Manoj Kumar Tiwari was taken into custody by the police. It is alleged that he made confession before the police that he along with his mother has committed murder of the deceased and her dead body has been disposed off in the river Ganga with the help of appellant no.3. Thereafter the police made all efforts to search out the dead body of the deceased with the help of divers but the dead body could not be recovered. The prosecution has also come with the case that appellant Manoj Kumar Tiwari went to his co-brother Manoj Kumar Pandey and made extra-judicial confession of this offence. Minor daughter of the deceased Km. Rachana has given eyewitness account of this incident during investigation.

8.In order to prove its case, the prosecution has examined PW-1 Anjani Prasad Upadhyay-brother of the deceased, PW-2 Jaggu Ram Patel, PW-3 Uma Kant Upadhayay, PW-4 Ram Pyarey Upadhyay. PW-2, PW-3 and PW-4 have accompanied the complainant to the village of the appellants after getting the information of this incident and thereafter again when they got the information that appellant Manoj Kumar Tiwari has been arrested. PW-5 is Manoj Kumar Pandey who has proved extra-judicial confession of the appellant Manoj Kumar Tiwari. PW-6 is Km. Rachana, the alleged eyewitness of this incident, aged about 8 years on the date when her statement was recorded. PW-7 Sarvesh Kumar Mishra, S.O., is the subsequent Investigating Officer of this case. He has also proved the investigation which was done by Shri Ram Awadh Pandey, S.O., as secondary evidence because of his death. PW-8 is Babita Sahu, Circle Officer, Sikandara, who had investigated the case initially but after investigation, she reached to the conclusion that the offence only under Section 364 IPC was made out, so the investigation was handed over to S.O. Ram Awadh Pandey. PW-9 is Constable Vijendra Giri, who has proved the Chik Report and G.D. of this case.

9.In defence, DW-1 Vijay Kumar Tiwari, Village Pradhan, has been examined, who has stated that when he was coming from Prayag Station on 07.09.2001 then he saw that victim Arti was coming from the side of the village and he recognized the victim in the headlight of his motorcycle.

10.After appreciating the evidence on record, learned trial court has convicted the appellants, as above, hence, these criminal appeals.

11.Submission of learned counsel for the appellants was that learned trial court has placed implicit reliance on the evidence of PW-6 Km. Rachana, who was aged about four years only at the time of incident. It is an admitted case of the prosecution that this witness had gone with the complainant and lived with him in the parental house of her mother. So chances of her tutoring cannot be ruled out. It was further submitted that learned trial court has drawn a presumption against the appellants as burden under Section 106 of the Indian Evidence Act could not be discharged by them. It has further been submitted that learned trial court has also taken into consideration that the appellants were not present in the house when complainant reached there, while there was sufficient evidence to establish that the appellant Manoj Kumar Tiwari was very much present in the village because he had gone with the complainant to the police station and to other places. It has further been submitted that there was no recovery on the pointing out of the appellant. The statement which was recorded by the police as his confession was not admissible under the Evidence Act. Learned trial court has committed mistake in appreciating the evidence and therefore conviction recorded by learned trial court becomes unsustainable.

12.Learned AGA, appearing for State, has submitted that in this case there was direct evidence of Km. Rachana, which stands corroborated by the evidence of extra-judicial confession made before PW-5 and learned trial court after correct appreciation of evidence has convicted the appellants and the judgment needs no interference by this Court.

13.The first point to be considered in this case is the first information report. According to the admitted case of the prosecution, the complainant PW-1 Anjani Prasad Upadhyay got the information of this incident on 07.09.2001 at about 09.00 PM. Thereafter, in the next day morning, he came to village Manaiya on a Jeep of PW-2 Jaggu Ram Patel along with PW-3 Uma Kant Upadhayay and PW-4 Ram Pyarey Upadhayay. According to the evidence, the distance from village Manaiya to the village of the complainant was about 70-80 Kilometres. According to the version of the first information report, when the complainant reached at the house of the appellant Manoj Kumar Tiwari at that time neither Manoj Kumar Tiwari nor any other appellant was present but the first information report is absolutely silent regarding the presence of Km. Rachana - daughter of the deceased (PW-6). The first information report of this case was lodged at about 03.30 PM. This, delay was not explained in the first information report. It was mentioned in the first information report that they made a search in the neighbourhood and also at the houses of the close relatives and when their efforts failed then the first information report was lodged alleging therein that they were told by some villagers that the deceased has been done to death and her dead body has been disposed of in river Ganga. Thus, according to the case with which the prosecution has come forward, appellant Manoj Kumar Tiwari or any other appellant was not present at the time when they reached in the village and the delay in lodging the first information report was due to the reason that efforts were made for the search of the deceased. The prosecution evidence reveals that after reaching at the place of occurrence the complainant along with his companions and also with appellant Manoj Kumar Tiwari went to village Karchhana in the search of the deceased. While they were coming back from there, appellant Manoj Kumar Tiwari was taken into custody by the police and thereafter, he was kept in the police custody and ultimately he was challaned. The version of the first information report does not disclose that there was any eyewitness of this incident but strangely enough, during trial, eyewitness account of this incident has been furnished. Allegation in the first information report that deceased has been murdered appears to be prima facie false. Because if the complainant was satisfied that deceased has been murdered then there was no occasion for him to search her in the houses of his relatives. So, it transpires that the first information report was lodged by the complainant only on the basis of hearsay evidence. He has admitted in the cross examination that he cannot disclose the name of the persons who gave him this information but when this witness was cross examined on this point then he has stated that this information was given to him by Mool Chand and Kishori Lal. Said Mool Chand and Kishori Lal have not been examined during trial. Apart from it, the complainant, in his cross examination, has also stated that first he narrated the story to Daroga and thereafter he scribed the first information report. So, it was written in the presence of the police at the police station. So the first information report was lodged only on the basis of hearsay evidence in this case. Apart from it, it was not mentioned that any person has witnessed this incident. During investigation, it came into light that the marriage of the deceased was solemnized about 10-11 years prior to her death but in the first information report, the complainant made an specific allegation that the marriage of his sister was solemnized about 6 years prior to the incident. So, deliberately wrong fact was mentioned in the first information report simply to bring the case within the purview of Section 304-B IPC because by that time no direct evidence was available. PW-3, who is an advocate, was also accompanying the complainant. So these facts appear to have been mentioned with legal advice. In this perspective, we consider it just to scrutinize the prosecution evidence with extra care and caution.

14.The prosecution has come with a definite case that none of the appellants was present in their house when the complainant along with his companions reached at their house on 08.09.2001. However, the first information report is absolutely silent regarding presence of Km. Rachana, who has been subsequently made an eyewitness of this incident. Perusal of the evidences of the witnesses clearly indicate that appellant Manoj Kumar Tiwari was very well present at his house. PW-1 - the complainant in his cross examination has stated that he met appellant Manoj Kumar Tiwari after 5-6 days when he was arrested by the S.O. After lodging the first information report, he came back to his house at about 3.30 PM on the same day. After getting the information that the appellant has been arrested, he again went to the police station.

15.On this point, PW-2 - Jaggu Ram Patel, who was driver of the Jeep on which the complainant and other persons had come to the house of the appellant, has stated that dead body of Arti was searched in the river Ganga but it could not be found. He along with police personnels came to the village Manaiya where he came to know through the villagers that Arti has been done to death by her family members and thereafter her dead body has been thrown in river Ganga. Thereafter, the police again searched her dead body in river Ganga. On the third day, they came to know that Manoj Kumar Tiwari has been arrested by the police. Thereafter, the Investigating Officer called them to the police station and in their presence, Manoj Kumar Tiwari confessed about this offence but this statement is contradicted by his own statement. He has stated in his cross examination that when they reached Manaiya then Manoj Kuamr Tiwari went to Karchhana to the house of his Saadu. When they were coming back along with Manoj Kumar Tiwari from Karchhana then the police took Manoj Kumar Tiwari into custody and had taken him to the police station. Thereafter, they went to the police station and from police station, they came back to their village. This statement of this witness, who was throughout along with the complainant, shows that before lodging the first information report, he along with the complainant and appellant Manoj Kumar Tiwari had gone to Karchhana in search of the deceased and while coming back, the police took appellant Manoj Kumar Tiwari into custody. Admittedly, by that time, the first information report was not lodged. When the complainant side had gone in the search of the deceased then it also gives rise to the inference that by that time the complainant was not sure that his sister has been done to death or her dead body has been disposed off. So these facts are so contradictory as to render the testimony unreliable. In absence of any evidence or such information regarding the murder of Smt. Arti Devi there was no occasion for the police to take Manoj Kumar Tiwari into custody before registering the case.

16.PW-3 is Uma Kant Upadhyay, who is an Advocate by profession and had put in about 22 years of practice. This witness has also accompanied the complainant to the village of the appellants. He has stated that in the intervening night of 6/7.09.2001 appellant Manoj Kumar Tiwari made a phone call to the complainant and thereafter they went in the next day morning. This statement of this witness shows that the complainant party reached the village Manaiya in the morning of 7.9.2001. He has further stated that on 15.9.2001 the police tried to search out the dead body of the deceased in river Ganga in their presence with the help of divers and on 19.9.2001 appellant Manoj Kumar Tiwari made a confession in their presence. He has stated that Manoj Kumar Tiwari and his mother were not present in their house while the daughter of the deceased Km. Rachana PW-6 was present in the house. He has stated that Manoj Kumar Tiwari has not gone anywhere in search of the deceased nor he met them. He has denied that it is wrong to say that he along with Manoj Kumar Tiwari went to Karchhana in search of Smt. Arti Devi and while they were coming back, Manoj Kumar Tiwari was taken into custody by the police. However he has admitted that when they were making efforts to search the deceased Smt. Arti Devi at that time, Jaggu Ram Patel (PW-2) was driving the Jeep.

17.PW-4 Ram Pyare Upadhyay has admitted that the marriage of the deceased was solemnized about 10-11 years ago. This witness has denied that they had gone along with Manoj Kumar Tiwari to the house of his Saadhu to village Karchhana but he has stated that he has not stayed at the house of Manoj Kumar but instead they went to the Ghat where they came to know that Manoj Kumar Tiwari has been arrested. Thereafter, they all came with force to the police station. On that day, dead body was not recovered. He has stated that entire incident was told to him by Sri Ram. So the evidence of this witness is only with regard to demand of dowry and consequential ill treatment, like the evidence of other witnesses. Other facts are being stated by this witness as he was told by Sriram.

18.PW-5 is Manoj Kumar Pandey, who is the husband of younger sister of the deceased. It is alleged that the appellant Manoj Kumar Tiwari has made an extra-judicial confession of this offence before him while he went to him along with his mother. But it is really strange to know that this witness has expressed his ignorance regarding the date on which such extra-judicial confession was made before him. He was unable to disclose as to after how many days of the incident such extra-judicial confession was made before him. He has stated that after 6-7 days of this extra-judicial confession, he went to the police station alone and disclosed about the confession to the Investigating Officer. It is strange that he made absolutely no efforts to inform the complainant while he was his wife's real brother. Statement of this witness under Section 161 Cr.P.C. was recorded on 27.09.2001.

19.Before proceeding further, we would like to discuss law regarding extra-judicial confession. Hon'ble the Apex Court in the case of Baskaran v. State of Tamil Nadu reported in (2014) 5 SCC 765 has held as under:-

"14. It is no doubt true that this Court time and again has held that an extra-judicial confession can be relied upon only if the same is voluntary and true and made in a fit state of mind. The value of the evidence as to the confession like any other evidence depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. But it is not open to any court to start with the presumption that extra-judicial confession is insufficient to convict the accused even though it is supported by the other circumstantial evidence and corroborated by independent witness which is the position in the instant case. The Courts cannot be unmindful of the legal position that even if the evidence relating to extra-judicial confession is found credible after being tested on the touchstone of credibility and acceptability, it can solely form the basis of conviction."

20.PW-6 Km. Rachana is the star witness. She is the daughter of the deceased. She has been examined as an eyewitness of this incident. She has stated that she was sleeping with her mother. Her father and grandmother (dadi) caused death of her mother and thereafter her dead body was disposed off in river Ganga. Her evidence goes on to show that she followed the appellants upto river Ganga where the dead body of her mother was disposed off. There she was threatened by the appellants and thereafter she came back to her house. At the relevant point of time, she was aged about 4-5 years only. In her cross examination, she has stated that when complainant came to her house then she, on Jeep, along with complainant and her Papa went to the police station. She has stated that she lived with her Mama and Papa and her grandmother (Smt. Amrawati) had gone to her Maikya and no other person was present in the house. Thus according to the evidence of this witness, the appellants Manoj Kumar Tiwari was present in the house. He accompanied the complainant to the police station. It is an admitted case of the prosecution that this witness was taken by the complainant to his house, where she continued to live with him.

21.Now the point to be considered is that when this witness was present in the house and the appellants were absconding by that time from their house, even then she made no efforts to disclose this incident either to the complainant or to the police. Even if the case of the prosecution is taken to be true that the appellants were not present in the house then there was nothing to prevent this witness to disclose this incident to her maternal uncle with whom she went to his house and accompanied to the police station. Her statement under Section 161 Cr.P.C. was recorded on 24.09.2001 and such a long delay of about 12 days in recording her statement under Section 161 Cr.P.C. has not been explained anywhere by the prosecution.

22.The submission of learned counsel for the appellants has force that she was a child witness of very tender age (less than five years) on the date of incident and said witness could have been easily tutored. Learned trial court has placed implicit reliance on the evidence of this witness but has overlooked certain improbable things. According to the evidence of this witness she had gone up to river Ganga behind the appellants while they were taking the dead body of her mother but it is strange enough that not a single witness has been produced who had seen the appellants going towards river Ganga or coming back from there. Apart from it, it is very unnatural that a child of such tender age would be permitted by the appellants to come behind them upto river Ganga and throw the dead body in her presence. It is true that the distance from the house of the appellant Manoj Kumar Tiwari to the river Ganga has nowhere come in the prosecution evidence but learned A.G.A. has submitted that as per his information it is not less than one kilometre. Since it has not come in evidence during trial, therefore, we are not resting our conclusion on the information furnished by the learned A.G.A. but the very conduct is itself unreliable. It is unbelievable that appellants would not have taken any care to commit the offence in the presence of this witness and thereafter to permit such a small child to come behind them upto river Ganga in the dead of night. She has not disclosed this incident to anyone and only on 24.09.2001 she for the first time gave statement to the police that she has seen the incident. Even PW-1 has nowhere stated that Km. Rachana told him that she has seen the incident and he took her to the Investigating Officer. Thus in our considered opinion, the evidence of this witness was not wholly reliable. She was a tutored witness. Great emphasis has been laid by the learned trial court on the extra-judicial confession but the prosecution evidence reveals that on 8.9.2001, the complainant along with the appellant Manoj Kumar Tiwari went to Karchhana and while they were coming back, appellant Manoj Kumar Tiwari was taken into custody by the police and thereafter he was challaned. So if this part of the evidence is taken to be true then there was absolutely no occasion for the appellant Manoj Kumar Tiwari to go and contact PW-5 Manoj Kumar Pandey and make an extra-judicial confession of this incident before him.

23.It is pertinent to mention here that initial Investigating Officer Babita Sahu could not get any information or evidence on the point that it is a case of murder and therefore she converted the offence under Section 364 IPC and accordingly the investigation was handed over to S.O. Ram Awadh Pandey. It goes on to show that by the time the investigation remained in the hands of the initial Investigating Officer, neither this witness told about this incident to her maternal uncle (PW-1) nor to the initial Investigating Officer. Her statement under Section 161 Cr.P.C. was recorded on 24.09.2001 i.e. after considerable delay of 12 days. It is an admitted case of the prosecution that during this period this witness remained with PW-1 at his house.

24.Keeping in view her tender age which was less than 5 years on the date of incident, we are of the considered view that she was a tutored witness and she was subsequently introduced as an eyewitness when the fact that the marriage of the deceased was solemnized about 11 years ago then this witness was introduced because in that condition the charge under Section 304-B IPC would have failed.

25.When we exclude the evidence of this witness then there remains the only evidence of extra-judicial confession against the appellant Manoj Kumar Tiwari, so far as the evidence of murder is concerned. As we have discussed earlier that the evidence of extra-judicial confession does not inspire confidence because the witness PW-5 could not disclose as to when and after how many days of the incident such a confession was made before him. He has admitted that he went after 6-7 days of this confession to the police and disclosed this fact to the police. This witness has nowhere stated that he immediately disclosed this fact to the complainant in spite of the fact that the complainant was the real brother of his wife but instead of that he continued to keep mum for such a long period and no explanation has been furnished as to why he did not take such steps immediately after such confession. Apart from it, it has also come in the evidence of the prosecution witnesses that before lodging the first information report the complainant along with appellant Manoj Kumar Tiwari and other persons who were accompanying the complainant went in a Jeep to Karchhana and while they were coming back from Karchhana, appellant Manoj Kumar Tiwari was taken into custody by the police and thereafter he was challaned. So if this part of the statement is taken to be true then this by itself is sufficient to falsify the entire evidence of PW-5 regarding extra-judicial confession of appellant Manoj Kumar Tiwari. Thus, in our considered opinion the evidence regarding extra-judicial confession was not so convincing so as to place implicit reliance on the same.

26.Perusal of the impugned judgment shows that learned Trial Court has drawn an adverse inference keeping in view the provisions of Section 106 of the Indian Evidence Act. 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."

27.Before proceeding further, we would like to discuss law on the point. Hon'ble the Supreme Court in the case of P.N. Krishna Lal and others Vs. Govt. of Kerala and another reported in [1995 (Supp) 2 SCC 187] held in paragraph-46 as under:--

"46. It is thus settled law even under general criminal jurisprudence that Sections 105 and 106 of the Evidence Act place a part of the burden of proof on the accused to prove facts which are within his knowledge. When the prosecution establishes the ingredients of the offence charged, the burden shifts on the accused to prove certain facts within his knowledge or exceptions to which he is entitled to. Based upon the language in the statute the burden of proof varies. However, the test of proof of preponderance of probabilities is the extended criminal jurisprudence and the burden of proof is not as heavy as on the prosecution. Once the accused succeeds in showing, by preponderance of probabilities that there is reasonable doubt in his favour, the burden shifts again on to the prosecution to prove the case against the accused beyond reasonable doubt, if the accused has to be convicted."

28.In the case of State of Rajasthan Vs. Kashi Ram reported in [(2006) 12 SCC 254], Hon'ble Apex Court in paragraph-23 has held 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)"

29.The above-mentioned case of State of Rajasthan Vs. Kashi Ram (Supra) has been followed by the Hon'ble Apex Court in a recent case of Sathya Narayanan V. State Rep. By Inspector of Police reported in [JT 2012 (11) SC 57].

30.In the instant case, the appellant Manoj Kumar Tiwari has come with a definite defence that the deceased without any information or notice to him left his house and this information was given by him to the complainant also. It transpires from the subsequent conduct of the complainant that this information was relied upon by him because the prosecution evidence reveals that the complainant along with other persons and also with appellant Manoj Kumar Tiwari went to Karchhana in search of the deceased. No incriminating evidence or any article was recovered from the house of the appellant. It is not a case where dead body of the wife was recovered from the house. There is no reliable evidence that murder was committed within the house of the appellant hence Section 106 of the Indian Evidence Act would not attract. So the facts of this case were entirely different and in the peculiar facts of this case Section 106 of the Indian Evidence Act would not come into play.

31.On behalf of the appellants, DW-1 Vijay Kumar, Village Pradhan, has been examined. He has stated that in the night of 07.09.2001 he had seen Smt. Arti Devi while he was coming back to his village on his motorcycle. He has also expressed the possibility that the deceased Smt. Arti Devi might be alive. The appellants have also come with a defence that she is alive and the complainant has solemnized her second marriage with some other person and she is living at some unknown place. There is no dispute to the fact situation that the dead body of the deceased was not recovered. Apart from it, during investigation the police has not prepared any site plan of the place of occurrence nor any incriminating article was recovered either from the alleged place of occurrence or on the pointing out of the appellants the dead body was not recovered. So virtually the death of Smt. Arti Devi was not established. So in our considered view the appellants can not be convicted for the offence under Section 302 IPC and consequentially they cannot be convicted for the offence under Section 201 IPC but so far as the appellants Manoj Kumar Tiwari and Smt. Amrawati Devi are concerned, there is ample evidence that in connection with demand of dowry, the deceased was subjected to cruelty by them. All the witnesses of fact have supported the allegation of demand of dowry and consequential ill treatment. So their conviction under Section 498-A IPC deserves to be confirmed. Thus, the Criminal Appeal No.6069 of 2006 preferred by appellant Lallan Tiwari deserves to be allowed. However, Criminal Appeal No.6891 of 2006 preferred by appellant Manoj Kumar Tiwari and Criminal Appeal No.6585 of 2006 preferred by appellant Smt. Amrawati Devi deserve to be partly allowed.

32.Criminal Appeal No.6069 of 2006 is allowed and appellant Lallan Tiwari is hereby acquitted of the charges levelled against him. He be set at liberty. He is on bail. His bail is cancelled and sureties discharged.

33.Criminal Appeal No.6891 of 2006 and Criminal Appeal No.6585 of 2006 are hereby partly allowed and conviction of the appellants Manoj Kumar Tiwari and Smt. Amrawati Devi under Section 302 and 201 IPC is hereby set-aside. However, their conviction under Section 498-A IPC and Section 4 of the Dowry Prohibition Act is hereby confirmed. Appellant Manoj Kumar Tiwari is in custody from the date of conviction i.e. 26.09.2006 and Smt. Amrawati Devi was granted bail in this appeal on 23.01.2008. Apart from it, she has also remained in custody at the investigation stage. Hence, sentence inflicted on them for the offences is hereby reduced to the period already undergone and their sentence stands modified accordingly. Appellant Manoj Kumar Tiwari is in jail. He shall be released forthwith, if not wanted in any other case. Bail of Smt. Amrawati Devi is hereby cancelled and sureties discharged.

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

Order Date :-16th July, 2015        (Raghvendra Kumar, J.)    (S.V.S. Rathore, J.)
 

 
A. Katiyar