Kayyoom vs State Of U.P.
2018 Latest Caselaw 1864 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
Court No. - 40
 

 
Case :- CRIMINAL APPEAL No. - 7051 of 2007
 

 
Appellant :- Kayyoom
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- K.S. Shukla,A K Bajpayee,D.K.Mishra,Rohit Pandey,Sikander B. Kochar,Smt.Manju Thakur Amicus C,Vinod Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Bachchoo Lal,J.

The appellant Kayyoom was charged for the offences under Section 302 IPC and Section 25 of the Arms Act for having committed the murder of his wife. The trial court in Sessions Trial No.487 of 2006 arising out of Case Crime No. 410 of 2005 P.S.- Sector-39, Noida, District Gautam Budh Nagar has convicted the appellant with a punishment of life imprisonment and fine of Rs. 10,000/- for the offence of murder and two years rigorous imprisonment coupled with a fine of Rs. 1,000/- on the count of the offence under Section 25 of the Arms Act. On the failure of deposit of fine, the appellant is to undergo one year and three months additional imprisonment respectively for the two offences. The two brothers of the appellant Shehjad and Raja, who were also accused and faced trial, have been acquitted.

At the very outset, we may mention that the appeal was presented and was being conducted by Sri A.K. Bajpayee Advocate. However, after the receipt of the lower court records on 3rd December, 2007 in spite of the revision of the list, no counsel appeared on behalf of the appellant. On 07th August, 2008 the case was listed before a Bench of which one of the Hon'ble Judges was the learned Sessions Judge who had tried the case when the conviction was recorded, and therefore the case was directed to come up before another Bench, as a consequence whereof it was nominated to the Bench presided over by Hon'ble Amar Saran, J. The said Bench also released the case and then it was directed to be listed before a Bench presided over by Hon'ble B.A. Zaidi, J. The matter was adjourned and the bail application remained pending. Ultimately the case was again released by the said Bench and was directed to be listed before the appropriate Bench. The office put up a note before Hon'ble The Chief Justice for placing it before a Bench to be nominated whereupon a Division Bench presided over by Hon'ble Devendra Pratap Singh, J was nominated to hear the appeal.

On 25th April, 2012 when the case was called out, no one appeared on behalf of the appellant and the case was directed to be listed after two weeks'. The appeal was again released by the said Bench as one of the Hon'ble Judges was sitting singly. Hon'ble The Chief Justice then passed an order that is should be listed before the appropriate Bench according to the roster.

In this background, the case came to be listed before the Bench presided over by Hon'ble Dharnidhar Jha, J. where the bail application was rejected on 25th September, 2012, and a second bail application was filed. When the matter was listed before a subsequent Bench, the order sheet dated 15.12.2015 records none was present on behalf of the appellant and the case was directed to be listed on 2nd March 2016. The second bail application was rejected on 20th of May, 2016. A perusal of the said order which is pasted on the overleaf of the second bail application indicates that Sri Vinod Singh Advocate had appeared as a counsel for the appellant.

After the rejection of the second bail application the paper books were prepared and the matter was being listed for final hearing.

Against the rejection of the second bail application, the appellant approached the Apex Court and filed S.L.P. No. 5410 of 2017. The Apex Court instead of granting any relief on the request for bail disposed off the appeal on 21st July, 2017 with a request to the High Court to decide the matter as far as possible within three months. The case was listed on 07th September, 2017 when the learned counsel for the appellant Sri Vinod Singh stated that he may be allowed sometime to seek further instructions from his client and an illness slip was sent thereafter by the learned counsel for the appellant on 3rd October, 2017 whereafter the case was again listed keeping in view the direction issued by the Apex Court.

On 10th October, 2017 the Court recorded that none appears on behalf of the appellant to press the appeal in spite of the paper book having been prepared, and therefore, the appeal was directed to be listed in October, 2017 itself. On 30th October, 2017, the order sheet again records that the case was called out in the revised call and no one appeared to press the appeal.

After having perused the aforesaid background, the then Division Bench on 3rd November, 2017 passed the following order:-

"Case called out in the revised list.

It appears that on earlier occasion too none has responded on behalf of the appellant to press this appeal. Even today learned counsel for the appellant is not present.

It appears that due to some financial crunch the appellant is not able to engage counsel. Record shows that the appellant in jail.

Under these compelling circumstances, we appoint Mrs. Manju Thakur as Amicus Curiae in the present case.

Let copy of paper book of this appeal be supplied to Mrs. Manju Thakur, Amicus Curiae within a week from today.

List this appeal for hearing on 20.11.2017."

It appears that the learned Amicus Curiae who was appointed under the said order obtained a copy of the paper book, but she also sent an illness slip on 20th November, 2017. The matter was listed on 31st January, 2018 but on account of the request of the Bar Association, the matter was adjourned as no counsel was attending Court.

Ultimately, the case was listed on 30th July, 2018 before this Bench when again no counsel appeared on behalf of the appellant. Upon having noticed the aforesaid facts, and the fact that the earlier Amicus Curiae Smt. Manju Thakur had failed to respond and assist the Court in spite of the case being called out on the previous occasions, we proceeded to alter the appointment of Amicus Curiae and entrusted this task to Sri Sagir Ahmad, learned counsel to assist the Court as Amicus Curiae in this appeal.

We may also put on record that we had to adopt this approach in order to secure the representation of the appellant which is a step calculated in that direction, keeping in view, the law laid down by the Apex Court in the case of Raja @ Ramakant Vs. state of Madhya Pradesh 2012 (8) SCC 553 and the judgment in the case of Surya Baksh Singh Vs. State of U.P. 2014 (14) SCC 222. We have also taken care to ensure what was observed by a Division Bench of this Court in the case of Ram Awadh Vs. State of U.P. 1999 CRL. L.J. 4083 where taking notice of the earlier Supreme Court judgments this Court held that the requirement of providing a counsel of an accused at state expense is not an empty formality. The calibre of the counsel has to be taken into account because an accused facing charge of murder may be sentenced to death or imprisonment for life and consequently, his case should be handled by a competent person and not by a novice or one who has no professional experience. It has been held that it is the duty of the Judge to appoint a competent person to represent the accused. This need to appoint a competent lawyer was observed by the Apex Court in the case of R.M. Wasava Vs. State of Gujarat AIR 1974 Supreme Court page 1143 (paragraph no. 1) where the Supreme Court has cautioned that particular attention should be paid to appoint competent advocates for handling complex cases, not patronizing gestures to new entrants to the Bar. It should be kept in mind that the advocate chosen may serve the cause of justice with all the ability at his command. The Court further referred to earlier judgments prior to the advent of the Constitution and prior to the new Criminal Procedure Code to hold that the selection of a lawyer should not be a matter of patronage and should be made from young men of marked ability.

The Division Bench in the case of Ram Awadh (supra) after referring to several cases of the Supreme Court observed that the appointment of a lawyer should not be in name sake nor anyone should be appointed to provide him with some monetary benefit. It also observed that a senior lawyer may not be willing to act as Amicus Curiae on account of meagre remuneration, nonetheless the effort should be to appoint a competent and capable person as it is not a matter of charity for those who on account of their incompetence have not been able to make any mark in the profession.

In the above background, we found Sri Sagir Ahmad learned counsel a befitting person with his experience at the Bar to assist us as an Amicus Curiae. He has deftly and in a superbly matured manner taken us through the records and has cited the relevant law to enable us to arrive at a just conclusion. We record our full satisfaction and appreciation for his performance.

It is in this background that we have finally heard the appeal, keeping in view, the directions of the Apex Court and the circumstances indicated above.

Sri Sagir Ahmad has advanced his submissions on behalf of the appellant, and Sri Ajit Ray, learned AGA has responded to the same on behalf of the State. We have perused the original records as well.

The case as set out in the FIR is that on 06th December, 2015, PW-1 Anis Ahmad lodged an FIR to the effect that the appellant was married to his daughter Smt. Furkana and from the wedlock three daughters were born, the eldest of whom was Nusrat and next to her was Arshi and then Safia aged about eight years, five years and one year respectively. The FIR alleges that the daughter of the informant was being harassed on account of dowry, and the matter was mediated on several occasions. In between on 04th December, 2005, the appellant accompanied by his daughter came to him. They must have returned back home thereafter. On 06th December, 2005, the informant received an intimation about the harassment of his daughter, and therefore, he along with his brother Idrish who has been examined as PW-3 departed for the residence of his son in law who lived in sector-39, Noida District Gautam Budh Nagar. When he arrived, he saw the appellant along with his two brothers Shehjad and Raja brutally assaulting his daughter physically with sticks and when they tried to intervene they were threatened and driven as a result they had to flee away from the spot. The daughter of the informant who was severely wounded was rushed to the District Hospital at Nithari where she died. The FIR narrates that leaving the dead body at the hospital, the informant had come to lodge the FIR and the written report had been prepared by Taj Mohammad. The said written report was converted into the check FIR registered at police station at 02:20 pm in the afternoon. It has been pointed out that no timing of the incident has been indicated in the FIR.

Three accused including the appellant and his two brothers are nominated in the FIR. The investigation set into motion upon the lodging of the FIR. The inquest report was prepared at the hospital in front of the mortuary where the body was lying. The inquest has been witnessed by five persons, none of whom are prosecution witnesses during trial. After the inquest was carried out in the presence of the Naib Tehsildar Shushil KUmar (Executive Magistrate) the body was sent for postmortem Shushil Kumar has been examined as PW-4.

The postmortem was carried out on the next day i.e. 07.12.2005 at 11:30 am by the Medical Officer In-charge District mortuary Gautam Budh Nagar. The report indicates three injuries of contusion and one gun shot wound. The cause of death has been shown to be shock and hammerohage due to ante-mortem injury no.4 namely, the gun shot injury. The heart and stomach were lacerated and the gun shot wound was described as 1cmX1cm cavity deep present on the left side on the front of the chest below the left nipple, at about 10'o clock position. It also indicates blackening around the wound of entry within an area of 3cmX3cm. It also records the recovery of one bullet of the size of 3cmX.75mm that was concealed and handed over to the police constable concerned.

The investigation further proceeded and it appears that the accused appellant surrendered in Court on 13th December, 2005.

The appellant was interrogated on 16th December, 2005 in jail whereafter an alleged search is said to have made out on the same day at the house of the appellant in order to find out the weapon of assault, but the recovery memo dated 16th December, 2005 indicates that no such weapon was recovered.

The appellant was again interrogated in the jail by the second I.O., concerned Anil Pratap Singh PW-10. After taking him on police remand on 20.12.2005 a recovery is said to have been carried out in respect of the weapon alleged to have been utilized for the commission of the offence, and according to the recovery memo, a country made pistol of 315 bore was recovered from a particular place on the pointing out of the appellant from his house together with with cartridges that is part of the recovery.

The recovered weapon and the cartridges as well as the incriminating material including the items mentioned in the forensic report were sent for examination, and a report dated 28th December, 2006 was brought on record exhibited as paper no. 35-Ka to establish that the same weapon that was found in working order corroborated the recovery made earlier.

All the three accused were charge-sheeted and the charges were framed by the court vide order dated 24th of February, 2006. The accused put in their defence of not guilty and the matter proceeded with the examination of the prosecution witnesses. Anis Ahmad the father of the deceased, and the first informant was examined as PW-1, the daughter of the deceased Nusrat who is a child witness was examined as PW-2, Mohammad Idrish the uncle of the deceased was examined as PW-3, Shushil Kumar the Naib Tehsildar in whose presence the inquest report was prepared has been examined as PW-4, PW-5 Ram Pal Singh is the constable clerk who has proved the police papers including the entries in the case diary, and had also proved the check FIR as well as that under Section 25 of the Arms Act and the police papers in relation thereto.

Faizan Ahmad appears to be a witness of the recovery of country made pistol who has been examined as PW-6, Bal Mukund is the constable of police station Sector-39 Noida who has said to have accompanied the dead body and handed it over to the doctor posted at the mortuary. Dr. Suresh Chandra Goel carried out the autopsy and prepared the postmortem report who has been examined as PW-8. He has proved the postmortem and has testified the contents thereof clearly indicating that the death of the deceased had taken about a day ago. Constable clerk Saudan Singh was examined as PW-9 who had prepared the check FIR of the offence under Section 25 of the Arms Act. Anil Pratap Singh the second Investigating Officer has been examined as PW-10, Yadu Raj Singh is the Inspector of Police who had under taken the investigation earlier that is prior to PW-10 has been examined as PW-11. Arjit Roria is the Investigating Officer of the case under Section 25 of the Arms Act.

Thereafter the statement of the accused under 313 Cr.P.C, was recorded, and by the impugned judgment on 29th of September, 2007, the appellant was found to be guilty by the trial court and was accordingly convicted and sentenced as referred to above. The other two accused Shahzad and Raja who are the brothers of the appellant were acquitted giving them the benefit of doubt.

It is in this background that Sri Sagir Ahmad learned Amicus Curiae for the appellant has advanced his submissions contending that the prosecution has failed to prove its case as set out in the First Information Report and the ocular testimony to support the same, being thoroughly inconsistent and exaggerated, particularly the testimony of PW-1, PW-2 and PW-3, there is virtually no trace of any evidence to establish that the appellant was in any way involved in the commission of the offence for which he has been charged. For this, he submits that on the same set of evidence that was collected and was pressed into service by the prosecution, the other two co-accused have been acquitted by the Trial Court giving them the benefit of doubt and in the circumstances the appellant also deserves acquittal at par with them, there being no other additional material or any different evidence so as to construe the involvement of the appellant in the commission of the offence. He submits that the inference drawn by the Trial Court merely on suspicion and on account of the absence of explanantion in terms of Section 106 of the Indian Evidence Act, the conviction of the appellant cannot be sustained, and in view of the inconsistencies in the evidence of the trial Court, the prosecution has failed to prove the case beyond reasonable doubt.

Advancing his submissions, he contends that no time of the incident has been disclosed in the FIR. Secondly, there is no indication in the FIR of the deceased having met her death on account of any fatal injury caused by a gun shot injury. He then submits that the timing of the FIR which is after the arrival of the prosecution witnesses, and in the presence of one particular witness namely, PW-2, the prosecution has failed to explain as to why, the injury of the gun shot wound does not find mention in the FIR which casts a serious doubt about the lodging of the FIR and even the evidence led thereafter. He submits that this discrepancy is not a minor aberration but a major pitfall in the investigation coupled with the absence of any proof in relation thereto during trial. Consequently, the naming of the appellant, along with the other two co-accused who have been acquitted, coupled with these discrepancies clearly indicates that the prosecution could not remove any doubt so as to uncover the real truth and prove the guilt. He further submits that the recovery alleged to have been made is also a planted recovery, inasmuch as, according to the evidence on record the first attempt to interrogate the appellant when he was already in custody was made on 16.12.2005, and in the absence of any recovery as a consequence of such interrogation, the recovery cannot be said to have been established in terms of Section 27 of the Indian Evidence Act. He submits that the second attempt after taking the appellant on police remand on 20.12.2005 also does not conform to the aforesaid provision, inasmuch as, there is no valid disclosure statement of the appellant, so as to establish that the weapon was discovered on the pointing out of the accused upon his disclosure statement. Consequently, any such recovery having been shown by the prosecution is nothing else but a mere paper formality, and is unsubstantiated and uncorroborated by any evidence.

He then submits that admittedly the body of the deceased was not recovered from the place where the incident is said to have occurred. Secondly, the statement of PW-10, the Investigating Officer clearly establishes that no search was made of the said premises where the incident is alleged to have occurred. The site plan was prepared and no incriminating material was collected from the exact site of occurrence. Not only this, the statement of the said Investigating Officer also establishes that he did not find any blood-stain or any such material so as to establish that the incident had occurred inside the house of the appellant. In the above background, he submits that the prosecution has failed to discharge its burden under Section 101 of the Indian Evidence Act so as to shift the onus on the appellant and consequently the entire evidence does not lead to any conclusion about the case having been proved beyond reasonable doubt.

He has then taken the Court through the statements of PW-1 and PW-3 to contend that their testimony keeping in view the description of the manner of arrival on the scene and not having actually seen the incident establishes that they are untrustworthy.

He has however castigated and criticized the statement of PW-2 who is a child witness contending that she was incapable of giving any testimony keeping in view her incapacity as noticed by the Trial Court itself while recording its opinion during her deposition on 19.05.2006. His contention therefore, is that if the Trial Court was of the opinion that the said child witness did not have a complete understanding of the questions and its nature and was only to able to understand it partially, it would be unsafe to rely on her statement. The Trial Court in spite of this conclusion has erroneously proceeded to believe the testimony of PW-2 which was not creditworthy.

To further substantiate his submissions Sri Sagir Ahmad has urged that the evidence of PW-2 is unreliable for the simple reason that she was incompetent and did not possess the capacity to testify and state correct facts pertaining to the incident.

Learned counsel has invited the attention of the Court to the judgment in the case of Rameshwar Vs. State of Rajasthan AIR 1952 Supreme Court 54 to urge that not only the said judgment lays down the law relating to the capacity of a child witness but also the credibility thereof. He has then cited the judgment in the case of Sampat Kumar v. Inspector of Police 2012 (4) SCC 124 paragraph nos. 26 and 27 to urge that the testimony of PW-2 falls within the category of a wholly unreliable witness without there being any corroboration in material particulars, and consequently, the same should be discarded. In addition thereto, he also submits that creditworthiness of such a witness has to be gauged in view of the provisions of Section 155(3) of the Indian Evidence Act, and since the witness is wholly unreliable then in view of the said provision the testimony of PW-2 should be held as uncreditworthy.

He has then urged that in the wake of the aforesaid circumstances, the presence of all the witnesses is doubtful, and they have practically admitted not having seen the appellant having committed the offence. Consequently, an overall picture of the aforesaid evidence and the surrounding circumstances leaves no room for doubt that the prosecution could not discharge its initial burden so as to shift the onus on the appellant to obligate him to set up any defence.

If the prosecution has failed to convert the case from a possibility to probability. Sri Sagir Ahmad has invited the attention of the Court to the observations made by a Division Bench in the case of Jaikam and another Reference No. 1 of 2016 in Capital Case No. 602 of 2016 decided on 18.05.2018 in support of his submissions.

If the prosecution has failed to discharge its burden, the contention is that the prosecution cannot be said to have proved the case up to the hilt, and the appellant also at the par with the other two co-accused is entitled to the benefit of doubt.

In order to further support his submissions, Sri Sagir Ahmad has cited three decisions, the first decision is in the case of Joydeb Patra and others v. State of West Bengal 2014 (12) SCC 444 paragraph no. 10 and 11 in particular to urge that in the absence of any evidence led to have actually proved the participation of the appellant, the burden could not be shifted on the accused under Section 106 Evidence Act and accordingly if the prosecution has failed to discharge its burden in establishing the case beyond reasonable doubt, the appellant deserves acquittal.

He has then invited the attention of the Court to another Supreme Court decision in the case of Mangu Singh v. Dharmendra reported in 2016 (2) JIC 631 in paragraph nos. 8 and 10 to urge that the inconsistency in the deposition should be read in favour of the appellant and no stress can be laid on the non-explanation by the appellant so as to shift the burden on him under Section 106 of the Evidence Act. He urges that even if the statement under Section 313 Cr.P.C. does not indicate any explanation about the presence or otherwise of the appellant at the time of the occurrence which is not even mentioned in the FIR, then in the wake of a completely uncreditworthy ocular testimony of the witnesses, there is no burden cast on the appellant to offer any such explanation. Accordingly, if the prosecution has failed to discharge its burden the same cannot be made the basis to draw an adverse inference against the appellant.

He further submits with the aid of the aforesaid judgment that if the ocular testimony and direct evidence which was the case set up by the prosecution could not be proved, and the prosecution had never set up a case of circumstantial evidence, then in that event no adverse inference can be drawn against the appellant to sustain the conviction.

He has further cited another Division Bench judgment of this Court in the case of Ram Nivas Sonkar v. State of U.P. in Criminal Appeal No. 1882 of 2011 decided on 29.03.2018 to contend that the Division Bench after having taken notice of the law on the subject has held that if a reasonable doubt has been cast on the evidence led by the prosecution then in that view of the matter and in the absence of any other hypothesis to implicate the appellant, the trial Court judgment deserves to be reversed. He has therefore submitted that in the light of the aforesaid submission, the appellant deserves acquittal.

Replying to the aforesaid submissions, Sri Ajit Ray, learned AGA has urged that so far as the ocular testimony is concerned the timing of the incident and its date remain unimpeached. For this he points out that the incident took place on 6.12.2005 and a prompt FIR has been lodged. The postmortem report which was carried out next day mentions the duration of the injuries about a day old. He contends that this clearly matches with the description of the incident which can be between the morning hours, and the timing of the lodging of the FIR which is 02:20 pm. It is a day light incident and, he therefore, submits that no cloud can be cast by any stretch of inference to alter the timing of the incident. The same is also corroborated by the deposition of PW-2 who has described her presence and movements during the morning hours when the incident took place.

Coming to the place of occurrence, he urges that the testimony of PW-1, PW-2 and PW-3 are consistent, inasmuch as, PW-1 and PW-3 arrived at the scene of occurrence and according to their statements they did see the initial stages of the incident, and from there they rushed to the hospital where the body of the deceased had been taken, and where she was found dead. He therefore submits that the presence of these witnesses cannot be said to be doubtful at least to establish the place of occurrence from where the body was lifted and taken to the hospital and its timing, and the death of the deceased.

In order to substantiate this, learned AGA has heavily relied on the testimony of PW-2, the child witness Nusrat to urge that she has consistently maintained that she was present in the morning when her father, the appellant herein gave her some money and she climbed down to go outside along with her younger sister in the morning hours of the date of the incident. He submits that the description of morning hours by a child witness can be construed to be the hours which are referable to the duration and status of the injuries as indicated in the post-mortem report. He submits that it matches the said description in the post-mortem report and even otherwise the deposition of PW-2 further demonstrates that when she came back, she found her mother lying in the premises. He therefore submits that the presence of the appellant in the company of the deceased, when she came down from the staircase is established and the presence of the dead body inside the premises upon her return also remains unimpeached. He contends that this testimony could not be reversed or diluted even during cross-examination. He therefore, submits that in the wake of this consistent evidence any other alleged inconsistency would not amount to any material variation so as to disbelieve the prosecution story about the date, time and place of occurrence as well also of the presence of the dead body inside the premises of the appellant.

On the basis of the aforesaid evidence, he submits that the prosecution therefore had led ample evidence in terms of Section 101 of the Indian Evidence Act, and having discharged its burden, the onus clearly shifted under Section 106 on the appellant who is the husband of the deceased to come up with any proper explanation about his presence or otherwise or participation in the offence. This failure on the part of the appellant clearly allows the Court to draw an inference and the only probable inference that it was the appellant alone who could have and must have committed the said offence. He submits that this part of the ocular testimony coupled with the aforesaid circumstance, therefore leads to the only inference that it was the appellant who had committed the offence of murder by firing the fatal injury shot on the deceased.

He submits that the recovery does not suffer from any infirmity, inasmuch as, the disclosure statement had been made by him when he was interrogated on the first occasion on 16.12.2005, and the said disclosure statement led to a search which ended in failure at the first instance. But on the second occasion when the appellant was taken on remand, he pointed out the exact place where the weapon had been concealed as described in the recovery memo whereupon the recovery was found to be valid and therefore the contention of the appellant that it is a planted recovery is unacceptable. He submits that the recovery stands proved with the aid of the forensic report in terms of Section 27 of the Evidence Act, and consequently, the same also corroborates the prosecution story about the deceased having been shot by the same weapon resulting in her death which stands corroborated with the recovery of a bullet during autopsy that has been proved by the evidence of PW-8.

He then submits that even if there are minor lapses in the investigation and the Investigating Officer did not choose to make any effort or search any incriminating material from the scene of occurrence particularly collection of blood-stained material, the same would not dilute the entire prosecution story, inasmuch as, the incident had occurred and has been proved by ocular testimony coupled by the medical evidence and the surrounding circumstances that lead to only one inference that the deceased was done to death in the given circumstances which clearly point out the involvement of the appellant.

He then contends that it is correct that the trial Court has acquitted the other co-accused Shehjad and Raja. He contends that it is here that the conduct of the appellant deserves to be compared with that of the other two co-accused. The contention is that the deceased after having been shot was taken to the hospital which is indicated by the testimony of PW-1 and PW-2. He submits that it has come in the investigation that the body after being carried over there was left in front of the mortuary. This body was carried to the hospital by none else then the other two co-accused and one Saira, and therefore, the conduct of those persons appears to have been taken into account by the trial Court for having acquitted them and giving them the benefit of doubt. On the other hand, the appellant did not come forward with any explanation and was virtually an absconder and surrendered before the Court almost after a week of the incident on 13.12.2005. His initial departure, his absconding and his absence for this long period coupled with no valid explanation about his whereabouts leaves no room for doubt that the testimony of PW-2, the child witness, is creditworthy to the extent that the appellant was very much present at time of the incident and in the premise in the company of his wife when the incident is said to have occurred which was his own house. He submits that this testimony is by no one else but by the daughter of the appellant, and consequently, there is no reason to draw any other inference. He submits that this circumstance would not amount to laying any undue stress for an explanation from the appellant, inasmuch as, the deceased being his own wife, the appellant was under a legal duty to have taken all possible steps so as to indicate that he could not be suspected of any foul play and for that he could have demonstrated of having accompanied the deceased either to the hospital or to the mortuary or made himself available at the time of investigation. He therefore submits that such a conduct on the part of the appellant not only raises a suspicion but confirms the same that the appellant was the real perpetrator of the crime having committed the murder of the deceased.

Having heard the learned counsel for the parties and having considered the submissions raised as well as the judgments cited at the bar, we find that the narration of facts in the First Information Report commence with the description of the incident as one of assault by sticks when the informant PW-1 reached the place of occurrence along with his brother, PW-2. It further narrates that the family of the deceased, namely the three accused, threatened them and drove them out and after some time they saw the body of the deceased being lifted and being hurriedly carried away in the company of Saira which they learnt was taken to the hospital as she had been severely injured. At this juncture, we may point out that the informant had come over from his place on an intimation received and he then deposes to have gone to the hospital where they saw the body of the deceased. Informant PW-1 further states that after having found the body, he came back to the police station to lodge the FIR.

In order to test the credibility of the testimony of PW-1, Sri Sagir Ahmad urges that if PW-1 had witnessed this entire scene then he does not appear to have made a correct description in the FIR about the deceased having been shot by the appellant or her death being caused by a fire arm injury. He submits that if PW-1 had seen his daughter having died due to a gun shot injury which would be apparent keeping in view the nature of the injury right on the chest, then it ought to have been mentioned in the FIR and consequently, if this omission in the FIR is evident then the only conclusion that can be drawn is that the FIR had been lodged by the informant without seeing the incident or even the dead body. We have considered the said submissions and having examined his testimony, we find that it is correct that the informant has described his arrival at the scene of occurrence and having seen the fight and assault by sticks going on in front of his eyes. The deceased was shot no where else but at the scene of occurrence, and if that is correct then the arguments of Sri Sagir Ahmad appeals to reason that this fact of the deceased having been shot with a fire arm and having sustained gun shot injury could not have been omitted in the FIR. This therefore, casts a serious and a reasonable doubt about the creditworthiness of the ocular testimony of PW-1 who is the informant. He was therefore not present when the deceased was shot. The theory of having been driven away at the time of an assault does not appear to have been established.

We come to the evidence of PW-3 who is the brother of PW-1 and the uncle of the deceased. He also has no where deviated from the statement of PW-1 and has supported the same testimony. It is to be further noted that he did not accompany PW-1 to the police station, and went back to his home along with the daughter of the deceased after returning from the hospital. He also therefore for the same reason does not appear to have made a correct deposition about having actually seen the occurrence himself on arrival. It is in the context that the evidence of PW-2, the child witness who is the daughter of the deceased becomes important.

As noted in the submissions, learned counsel has urged that the statement of PW-2 does not inspire any confidence on account of the inconsistencies as pointed out by the learned counsel, and also the opinion of the Trial Court about the incapacity of the said witness. We have examined the deposition of PW-2 carefully and we find that that learned Judge has carried out the voire dire test in order to assess the capacity of the witness. She has been asked normal questions suiting her age, about her education at school and having learnt the alphabets and digits upon which she specifically pronounced 28 digits from 1 to 28, and then all the 26 alphabets in English from A to Z.

On a query being made as to where her mother was, she categorically stated that her mother was dead. She was then asked as to where her father was upon which she pointed out and stated that the accused standing in the court-room is her father and lives in Noida. She also stated that she lives with her sister, and that stating the truth is good and stating falsehood is wrong.

Sri Sagir Ahmad submits that the Trial Court after having recorded this test of the child witness has opined that the witness does not have full understanding to understand the questions and its nature and that she understands only some part of the questions. This observation of the Trial Court, therefore, demonstrates that the Trial Court which had the opportunity to watch the demeanour of the witness did not find her to be possessed of the capacity to respond to what was being asked so as to construe her statement to be a truthful piece of evidence.

We have considered the same, and we find that the observations of the Trial Court casting a doubt on the understanding of the child witness is not correct, inasmuch as, the questions and the answers as recorded do not indicate anywhere that the child witness faltered in her replies or gave a wrong reply so as to infer that she was incompetent to depose before the Court. The answers given by her are well oriented and coherent. The deposition therefore, does not suffer from any such incapacity as per the observations of the Trial Court. The Trial Court had rightly undertaken the exercise of testing her capacity before recording her deposition. In these circumstances, the argument the deposition of the child witness cannot be relied on is unacceptable.

The second argument of Sri Sagir Ahmad in respect of deposition of PW-2 is that the Court proceeded to examine her by putting leading questions in relation to the incident which indicates that she did not volunteer to narrate the incident according to her own understanding. It is here that he has taken shelter of the judgments cited by him to contend that the capacity of the witness even if existing, the manner in which the leading questions were put-forth by the Court and the answers given by the witness do not inspire confidence.

We have considered the said submissions, and we find that the question put-forth by the Court is about the incident that she had seen on that day. This question itself may appear to be a leading question, but in our opinion it was an appropriate question in order to facilitate the Court to gather the correct description of the incident as the witness was an important witness and rather one of the vital witnesses pertaining to the ocular testimony relating to the incident. The deposition of PW-2 in answer clearly indicates that she had seen the incident. She narrates that her father was at home, and accordingly fixes the presence of the appellant at home in the company of the deceased. She also states that her deceased mother had entered house after filling water from a tap. She however, faltered a bit in the description of the presence of the other two co-accused.

On cross-examination she categorically stated that the instrument with which her mother was shot was a fire arm (gun) about one feet in length, which was kept in the house from before. On a suggestion, that her statement was tutored, she categorically denied that neither her lawyer nor her guardians or grandfather had informed her of these facts.

The important part of her testimony arrives thereafter where she states that that her father, the appellant Kayyoom gave her some money in the morning and she along with her younger sister (bibi) namely Safia went outside, and when she returned back then her mother was there in a lying position, and the others had gone away. There was nobody inside the house when she returned back. On further cross-examination she stated that her father had given some money in the morning when she had disembarked the staircase for going outside.

In the last sentence of her deposition, she however contradicted her earlier deposition relating to the firing of a shot by her father. She stated that she did not see her father actually firing the shot.

Sri Sagir Ahmad submits that this is a major contradiction in the statement and which clearly absolves the appellant of any such involvement in the commission of the offence of having fired a gun shot causing the injury to the deceased. He submits that if PW-2 has contradicted herself then her creditworthiness as a witness also diminishes, and it is here that he has cited the decision referred hereinabove together with the provisions of Section 155(3) Cr.P.C.

We have considered the submissions so raised and so far as the argument on the issue of capacity is concerned, the same has already been dealt with by us hereinabove. On the issue of creditworthiness suffice it to say that if the statement of the witness inspires confidence and gets corroborated by any other evidence, then in that event, such evidence can be relied upon. The issue relating to reliance being placed on a child witness in a deposition has been dealt with exhaustively by the Kerala High Court by a learned Single Judge in the decision of Mirajul Islam v. State of Kerala reported in AIR 2018 Vol. 1 Kerala Law Times page 454. The said judgment traces the entire law on the subject of such deposition and the gist of the said judgment is that the Court has to view the said evidence in a manner that it inspires confidence. The evidence of PW-2 therefore, has to be scrutinized in the said background. Sri Sagir Ahmad is correct in his submission that PW-2 has contradicted herself with regard to the actual witnessing of the use of the fire arm by her father for causing the injury on the deceased, but we find that she is inconsistent in her statement about the presence of her father inside the house in the company of the deceased when the alleged incident is said to have taken place. She has given the description of the fire arm but even assuming for the sake of arguments that she did not actually see the firing of the shot, we find a ring of truth in her statement, because she has firmly stated and has maintained it even in cross-examination that her father gave her some money to go away and she went along with her sister and then returned back. This also confirms the presence of the appellant in the house and which part of the statement remains unimpeached. PW-2 in the normal course of conduct can be presumed to be present when the said incident had occurred in order to establish the presence of the appellant at time of the occurrence. She returned back and she deposes that she saw her mother lying. This was obviously after the mother had been shot and wounded, and consequently, this part of her testimony does not falter nor does it get diluted, inasmuch as, this stands corroborated by the statement of PW-1 and PW-3 to the effect that the body of the deceased was lifted from the premises and taken to the hospital where it lay in front of the mortuary.

It is a day light incident and further there cannot be a presumption of a body travelling by itself in a severely wounded state from the premises to the mortuary. It is therefore, evident that these circumstances coupled with this part of the testimony of PW-2 fixes her presence at her house having seen her father also in the company of the deceased. It appears that from the statement of PW-2 that she had not left the premises and had come down after her father had given her some money.

Sri Sagir Ahmad then urged that if the ocular testimony of PW-1 and PW-3 has failed and that of PW-2 in having witnessed the offence has been contradicted by the witness herself, then in that view of the matter this raises a reasonable doubt about her presence which stands established from this testimony. Consequently, the appellant cannot be identified as the assailant more so in the background that the prosecution in the FIR and also during trial maintained that there were three persons involved including two of his brothers who have been acquitted.

He therefore, submits that the ocular testimony of the PW-2 also cannot be believed if there were three persons who have committed the offence and in the absence of any identity it cannot be said with certainty that it was the appellant who fired the gun shot. We are not prepared to accept this contention for the simple reason that the two other co-accused have been acquitted, who even though are the real brothers of the appellant, yet, it has come on record that they are living separately. Their presence at the time of the incident, therefore, could not be fixed, and therefore, the testimony of PW-2 which is varying in relation to their presence clearly establishes that it was appellant alone who was identified and seen by PW-2. The involvement of the other two co-accused, therefore, may have been rightly disbelieved by the Trial Court, and consequently, the findings recorded by the Trial Court on this issue cannot be said to be suffering from any perversity but at the same time, the acquittal of the other two co-accused cannot be made a ground for claiming acquittal by the appellant for the reason that the testimony of PW-2 remains firm and his individual participation and presence remains unshaken. The contention of Sri Sagir Ahmad is that the presence of the other two co-accused and one Saira has also been categorically stated by PW-2 as noted above. We find that there is a variance in the description of the presence of these three persons, inasmuch as, she does not take the name of Shehjad at all, and so far as Raja is concerned she is confused. Saira is the lady who is alleged to be accompanying the body of the deceased when she was being taken to the hospital as per the deposition of PW-1 and PW-3. In the said circumstances, the Trial Court may have found it proper to grant the other two co-accused the benefit of doubt on the basis of any absence of such evidence so as to construe that they were involved in the commission of the offence. It is also on record that the body was carried to the mortuary and then left there. The acquittal of the co-accused does not mitigate the circumstances adverse to the appellant. The Apex Court in the case State of Karnataka Vs. Smt. Suvarnamma and another 2015 (1) SCC 323 in paragraph no. 12.7 has observed as follows:-

"12.7 Gangadhar Behera v. State of Orissa MANU/SC/0875/2002 : (2002) 8 SCC 381

15. To the same effect is the decision in State of Punjab v. Jagir Singh MANU/SC/0193/1973 : (1974) 3 SCC 277)a nd Lehna v. State of Haryana MANU/SC/0075/2002 : (2002) 3 SCC 76).Stress was laid by the accused-Appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out the entire prosecution case. In essence prayer is to apply the principle of "falsus in uno, falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of a particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno, falsus in omnibus" has no application in India and the witnesses cannot be branded as liars. The maxim "falsus in uno, falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence". (See Nisar Ali v. State of U.P. (MANU/SC/0032/1957 : AIR (1957) SC 366) Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a court to differentiate the accused who had been acquitted from those who were convicted. (See Gurcharan Singh v. State of Punjab (MANU/SC/0122/1955 : AIR (1956) SC 460).The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because a witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab v. State of M.P. MANU/SC/0254/1972 : (1972) 3 SCC 751) and Ugar Ahir v. State of Bihar (MANU/SC/0333/1964 : AIR 1965 SC 277). An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate the truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of M.P. (MANU/SC/0093/1952 : AIR (1954) SC 15) and Balaka Singh v. State of Punjab MANU/SC/0087/1975

: (1975) 4 SCC 511). As observed by this Court in State of Rajasthan v. Kalki MANU/SC/0254/1981 : (1981) 2 SCC 752) normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi v. State of Bihar MANU/SC/0327/2002 : (2002) 6 SCC 81).Accusations have been clearly established against the accused-Appellants in the case at hand. The courts below have categorically indicated the distinguishing features in evidence so far as the acquitted and the convicted accused are concerned."

At this juncture, we may now turn to the conduct of the appellant being the husband of the deceased. The appellant Kayyoom undoubtedly being the husband of the deceased was under an obligation to have put-forth any explanation about his presence or absence otherwise, but we do not find any such explanation coming forth in his statement under Section 313 Cr.P.C.

Sri Sagir Ahmad relying on the judgment in the case of Mangu Singh (supra) and the judgment in the case of Bhagirath v. State of Madhya Pradesh AIR 1976 SC 975 contends that if the direct evidence of ocular testimony is absent, then the conduct of the appellant in the wake of the basic prosecution story becomes irrelevant as the prosecution has failed to prove its case on the strength of any evidence indicating the presence of the appellant at the scene of occurrence. He submits that this is not a case of circumstantial evidence and, consequently, this court may not convert this case into a case of circumstantial evidence, and then find fault or guilt on the part of the appellant.

The judgment in the case of Bhagirath (Supra) indicates that was a case where the deceased had been dragged outside the house and then the assailants had inflicted injury whereas the Court below proceeded to assess the evidence treating the same to be a incident of a free fight. It is therefore, evident that the entire foundation of the facts stood converted and therefore the Apex Court found that this was not permissible in law. The same view was reflected in the case of Mangu Singh (supra) with a further observation that non explanation on the part of the accused cannot be a ground to draw an adverse inference.

It is here that the conduct of the appellant and the discharge of burden by the prosecution have to be considered together. As noted above, the appellant has not come forward with any explanation, but the evidence of PW-2 as discussed hereinabove has firmly anchored the presence of the appellant and his suspicious conduct during the period of the incident. The fact that the appellant had given money to the PW-2 remains unimpeached then a presumption can be raised that she had been allured with some errand in order to possibly remove her when the alleged incident took place. The fact remains that PW-2 has stated that she descended the stairs for going outside, but the evidence does not say that after going outside she went away somewhere else. During this period the incident appears to have occurred because PW-2 has categorically stated that when she returned back she found her mother in a lying position. It was for the appellant therefore to explain as to where was he when all this happened, and even otherwise if he was not there then what action did he take or overt act he performed in order to ensure the welfare of his own wife who admittedly had gone to the hospital in a severely wounded state. We do not find any such explanation coming-forth and in our opinion this would not be compelling the appellant or creating any unwarranted stress on him in law so as to volunteer any confession on his part. This circumstance is enough to draw an adverse inference about the conduct of the appellant that he had left his wife in such a grave condition which resulted in her death. Presumption in such matters therefore in the surrounding circumstances lead to the only conclusion, and the only probability that the appellant was present and he must have been the perpetrator of the crime. This does not amount to converting the case from one of ocular testimony to circumstantial evidence. Rather the ocular testimony to the extent of the presence of the appellant remains intact and the surrounding circumstances leave no room for doubt that the appellant was present when the offence had been committed.

The aforesaid inference has been drawn by us on the strength of the evidence on record, particularly the ocular testimony of PW-2. Learned counsel, Sri Ahmed contends that the Apex Court has observed that there are generally three kinds of witnesses. He has referred to the decision in the case of Vadivelu Thevar Vs. State of Madras AIR 1957 SC 614. The same was followed in the case of Sampath Kumar v. Inspector of Police 2012 (4) SCC 124 where the Apex Court in paragraph nos. 26 and 27 as under:-

"26. This Court in Vadivelu Thevar v. The State of Madras MANU/SC/0039/1957 : AIR 1957 SC 614 classified witnesses into three categories, namely, (i) those that are wholly reliable, (ii) those that are wholly unreliable and (iii) who are neither wholly reliable nor wholly unreliable. In the case of the first category the Courts have no difficulty in coming to the conclusion either way. It can convict or acquit the accused on the deposition of a single witness if it is found to be fully reliable. In the second category also there is no difficulty in arriving at an appropriate conclusion for there is no question of placing any reliance upon the deposition of a wholly unreliable witness. It is only in the case of witnesses who are neither wholly reliable nor wholly unreliable that the Courts have to be circumspect and have to look for corroboration in material particulars by reliable testimony direct or circumstantial.

27. To the same effect is the decision of this Court in Lallu Manjhi v. State of Jharkhand ANU/SC/0004/2003 : AIR 2003 SC 854 where this Court felt that the testimony of the witness Mannu (PW9) could neither be totally discarded nor implicitly accepted. Mannu was a witness who could have been naturally present with his brother while ploughing the field. However, his testimony was found to have been improved substantially at the trial. He was considered neither wholly reliable nor wholly unreliable."

On the strength thereof it is urged that the testimony of PW-2 is wholly unreliable. We are unable to accept the said argument for the reason that we have found the testimony of PW-2 in being able to corroborate the facts so as to establish her presence and the presence of her father, the appellant in the morning hours of the fateful day. Thus her deposition cannot be discarded in it's entirety. This course of accepting the established part of the testimony is permissible in law by applying the principle of separating the wheat from the chaff as observed in the case of State of Karnataka Vs Suvarnamma (supra).

The difficulty in assembling the links in the chain of events in cases of circumstantial evidence was expressed by the Apex Court in the case of Trimukh Maroti Kirkam Vs. State of Maharashtra 2006 (10) SCC 681 (paragraph nos. 14 and 15) extracted hereinunder:-

"14. 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 Prosecutions (1944) AC 315)--quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh MANU/SC/0585/2003 : (2003) 11 SCC 271.) 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 travelling on a railway without ticket. The burden of proving that he had a ticket is on him."

15. 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.

Similar view has been expressed in State of Punjab v. Karnail Singh, State of Rajasthan v. Kashi Ram MANU/SC/8632/2006 : (2006) 12 SCC 254) and Raj Kumar Prasad Tamarkar v. State of Bihar MANU/SC/0181/2007 : (2007) 10 SCC 433)."

We have explored and examined the case by navigating through the evidence available on record in this case and have not been able to dislodge the impression of the veracity of the deposition of the child witness PW-2 to negate the probability of the immediate and proximate presence of the appellant involving him in the incident. As discussed hereinbefore, the deposition of PW-2 to the said extent is intact and falls within the category of "wheat" that can be legally relied on to sustain the prosecution story. To use the words of Section 155(3) Cr.P.C., it is creditworthy.

To support our conclusions we are inclined to adopt the reasoning as observed by the apex Court, in order to draw a presumption on the basis of the evidence of PW-2, in the case of Kumar Exports Vs Sharma Carpets 2009 (2) SCC 513 where while dealing with presumptions under the Indian Evidence Act, 1872 it has been discussed as follows:-

"16. Section 4 of the Evidence Act inter-alia defines the words 'may presume' and 'shall presume' as follows:-

(4) 'May presume' - Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it:

'Shall presume' - Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved."

We may now gainfully reproduce Section 101 and Section 106 of the 1872 Act, hereinunder:-

"101. Burden of proof.--Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

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.

It also necessary to refer to the provisions of Sections 6, 7 and 8 of the Indian Evidence Act, 1872 to understand the conduct of the appellant while drawing an inference about his being the only probable suspect to have indulged into the commission of the offence. Section 7 is extracted hereinunder:-

"7. Facts which are the occasion, cause or effect of facts in issue- Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, or relevant."

Examining the evidence on record, the prosecution has clearly discharged it's burden in terms of Section 101 of the 1872 Act by bringing on record the material particulars of the presence and movement of PW-2 and that of the appellant in the company of the deceased at home at the time when the incident is stated to have occurred. We need not repeat the facts that have been already reproduced in detail hereinabove while analysing the statement of PW-2. The onus therefore, clearly shifted in terms of Section 106 of the 1872 Act on the appellant to come forward with any explanation which burden has not been discharged. The appellant was under a legal obligation in the terms of the 1872 Act to explain his conduct which he has failed to do.

The Apex Court in State of Rajasthan Vs. Jaggu Ram 2008 (12) SCC page 51, paragraph no. 27 has held as follows:-

"27.In our considered view, this was a fit case for invoking Section 106 of the Evidence Act, which lays down that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In Ram Gulam Chaudhary v. State of Bihar MANU/SC/0582/2001 : (2001) 8 SCC 311) this Court considered the applicability of Section 106 of the Evidence Act in a case somewhat similar to the present one. This Court noted that the accused after brutally assaulting a boy carried him away and thereafter the boy was not seen alive nor his body was found. The accused, however, offered no explanation as to what they did after they took away the boy. It was held that for the absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they had murdered the boy. It was further observed that even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The accused by virtue of their special knowledge must offer an explanation which might lead the court to draw a different inference."

It is here that we resort to the observations of the Apex Court in para 15 of the judgment in the case of Kumar Exports (Supra) extracted hereinunder:-

"15. Presumptions are devices by use of which the courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence. Under the Evidence Act all presumptions must come under one or the other class of the three classes mentioned in the Act, namely, (1) "may presume" (rebuttable), (2) "shall presume" (rebuttable) and (3) "conclusive presumptions" (irrebuttable). The term 'presumption' is used to designate an inference, affirmative or disaffirmative of the existence a fact, conveniently called the "presumed fact" drawn by a judicial tribunal, by a process of probable reasoning from some matter of fact, either judicially noticed or admitted or established by legal evidence to the satisfaction of the tribunal. Presumption literally means "taking as true without examination or proof".

The presumption in the present case can be drawn from the ocular testimony supported by the circumstances indicated in the evidence. The existence of material to establish the presence of the appellant is no longer in doubt. The fact that the husband and the star witness of the prosecution who is his own child, strengthens this presumption. The occurrence is of day time and the incident having occurred in the house in the presence of the appellant remains nowhere in doubt. The inference drawn from such ocular testimony and the circumstances nowhere suggests that the body of the deceased was found at some other place. We are therefore satisfied that even though there are discrepancies that raise a suspicion, but it does not raise any reasonable doubt about the participation of the appellant. As a matter of fact, the only figure towards which the needle of suspicion has remained fixed is the appellant.

Consequently, for all the aforesaid reasons the judgments which have been relied upon by the learned counsel for the appellant to urge that the prosecution had failed to discharge its burden under Section 101 of the Indian Evidence Act, 1872, and that the onus did not shift on the appellant under Section 106 thereof does not come to his aid, inasmuch as, from the findings recorded hereinabove, and the reasons in support thereof, we have found that the prosecution had discharged its burden by leading all available evidence, and after discarding the embellished and exaggerated testimony of PW-1 and PW-3, we find that the testimony of PW-2 is sufficiently creditworthy so as to prove the case of the prosecution.

The appellant was also absconding for almost a week after the incident whereafter he surrendered on 13.12.2005.

The aforesaid findings are further supported by the recovery which has been made namely of the country-made pistol on the pointing out of the appellant. Sri Sagir Ahmad insisted that the search and recovery nowhere indicates the presence of any blood-stains at the scene of occurrence so as to construe that the body was actually lying at the premises inasmuch as, it was seen for the first time only in front of the mortuary. The narration in the evidence and as discussed hereinabove, it is correct that the body was lifted and taken to the hospital, and the Investigating Officer did not find any blood-stain, but in his testimony, he has stated that he did not find it necessary to carry out any search. This in our opinion was a serious lapse on his part but such a lapse on the part of the investigation is not sufficient to disprove the prosecution story.

Negligent and perfunctory investigation cannot dilute the prosecution story on the facts of the present case. Reference be had to the observations of the Apex Court in the case of Dhanaj Singh Vs. State of Punjab 2004 (3) SCC 654, paragraph no.40 is extracted hereinuder:-

"40....Consequences of defective investigation have been elaborated in Dhanaj Singh v. State of Punjab MANU/SC/0203/2004 : (2004) 3 SCC 654).It was observed as follows: (SCC p. 657, paras 5-7)

'5. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See Karnel Singh v. State of M.P. MANU/SC/0497/1995 : (1995) 5 SCC 518).

6. In Paras Yadav v. State of Bihar MANU/SC/0009/1999 : (1999) 2 SCC 126) it was held that if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not, the contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.

7. As was observed in Ram Bihari Yadav v. State of Bihar MANU/SC/0302/1998 : (1998) 4 SCC 517) if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law-enforcing agency but also in the administration of justice. The view was again reiterated in Amar Singh v. Balwinder Singh MANU/SC/0065/2003 : (2003) 2 SCC 518)."

For all the reasons stated hereinabove. We find no reason to reverse the judgment of the Trial Court which has to be affirmed. The appeal therefore stands dismissed.

The Registrar General and the Legal Services Aid Authority of Allahabad High Court are directed to pay a sum of Rs. 20,000/- to Sri Sagir Ahmad, who has ably pleaded and assisted this Court as Amicus Curiae, as his professional fee.

Order date:- 07.08.2018

M.Arif/P Kesari