Bablu @ Narendra Singh vs State Of U.P.
2019 Latest Caselaw 5191 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R						      Reserved on: 10.4.2019
 
	       					               Delivered on: 30.5.2019
 

 
Court No. - 7
 
Case :- CRIMINAL APPEAL No. - 5908 of 2009
 
Appellant :- Bablu @ Narendra Singh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ajay Kumar Singh,Anjali Rajpoot,Dileep Kumar,Omvir Babu,P.K.Rajpoot,Vivek Kumar Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Pritinker Diwaker,J.

Hon'ble Rajeev Misra,J.

(Delivered by Hon'ble Rajeev Misra,J.)

1. Challenge in this criminal appeal is to the judgement and order dated 24.8.2009, passed by the Additional Sessions Judge (F.T.C.) Court No. 7, Bulandshahr in Sessions Trial No. 639 of 1999 (State Vs. Bablu @ Narendra Singh). Under the impugned judgement and order, the accused appellant Bablu @ Narendra Singh has been convicted under section 304 B I.P.C. and consequently sentences to life imprisonment. He has also been convicted under section 498 A IPC but by reason of the judgement reported in 2005 (52) ACC 1912, Sunil Garg Vs. State of U.P., he has not been sentenced under section 498 A IPC. The accused appellant has further been convicted under section 3 of the Dowry Prohibition Act. Accordingly, he has been sentenced to five years rigorous imprisonment along with fine of Rs. 15,000/-. In default, the accused appellant is to undergo three months additional imprisonment. Lastly, the accused appellant has been convicted under section 4 of the Dowry Prohibition Act. As such, he has been sentenced to two years rigorous imprisonment along with fine of Rs. 1,000/-. In case of default, the appellant is to undergo three months additional imprisonment.

2. It transpires from the record that the marriage of appellant Bablu @ Narendra Singh was solemnized with Babita (deceased) on 1.12.1995 in accordance with the Hindu Rites and Customs. However, just after the expiry of a period of five months and fifteen days from the date of marriage, an unfortunate incident occurred on 15.5.1996, in which Babita the wife of the appellant died. It is the nature of death of the deceased Babita which is required to be dealt with in this appeal.

3. Vijay Singh, a neighbour of the accused-appellant submitted a written report dated 15.5.1996 of the aforesaid occurrence at Police Station Aurangabad, District Bulandshahr. P.W. 3 H.M Rajveer

Singh entered the written report dated 15.5.1996 in the G.D. vide report No. 34 dated 15.5.1996. He, thereafter, scribed the check F.I.R. dated 15.5.1996 (Ext. Ka-2) which was registered as Case Crime No. 63 of 1996, under section 302 IPC, P.S. Aurangabad, District Bulandshahr.

4. A perusal of the F.I.R. will go to show that the same has been lodged by the first informant Vijay Singh, against unknown persons. The date, time and place of occurrence as mentioned in the F.I.R. is 15.5.1996 at 7:00 pm in the house of the deceased (Babita) which is situate in village Pipala, P.S. Aurangabad, District Bulandshahr. The F.I.R. also contains the details regarding the time and date of the lodging of the F.I.R which is 8:45 pm on 15.5.1996. S.I.- H.C. Panda (P.W.7) was appointed as the Enquiry Officer.

5. After the lodging of the F.I.R. dated 15.5.1996, the Police of Police Station Aurangabad came into motion. P.W. 7, S.I.- H.C. Panda who was appointed as the Investigating Officer proceeded with the investigation of the aforesaid case crime number. After completing the formalities of entering the written report and the F.I.R. in the case diary, he recorded the statement of the scribe of the F.I.R. namely, P.W.3 Rajveer Singh the first informant Sanjay Singh. Therefore, accompanied by the first informant, he visited the place of occurrence and inspected the same. He, accordingly noted the inspection memo dated 15.5.1996 in the case diary and prepared the site plan of the place of occurrence (Ext. Ka-11). He also recovered plain earth and earth mixed with blood from the place of occurrence and sealed them separately. He also recovered the bed sheet which was having blood stains. The same was sealed. He also recovered broken pieces of bangles of the deceased which were also sealed. In respect of the above, he prepared the recovery memo dated 15.5.1996 (Ext. Ka-12). The aforesaid recovery is witnessed by one Chote Lal Sharma.

6. After completing the aforesaid formalities P.W.4, S.I. Ram Gopal Yadav took possession of the dead body. He, thereafter appointed the panch witnesses namely, Chote Lal Sharma, Gyan Sharma, Chandra Pal, Rajmal Singh and Satpal Singh. In the opinion of the panch witnesses, the death of the deceased was homicidal. Accordingly, P.W. 7 the Investigating Officer S.I.- H.C. Panda prepared the inquest report dated 15.5.1996 (Ext.Ka-5).

7. The inquest report clearly contains the case crime number in which it was prepared, the date and timing of the inquest, the officer under whom the inquest was conducted and also the condition of the dead body of the deceased as well as the injuries found on the same.

8. Having got the inquest of the deceased conducted P.W. 7 S.I. H.C. Panda prepared the detailed Police scroll for getting the Post-mortem of the body of the deceased conducted. He, accordingly prepared Police Form No. 13 (Ext. Ka-6). Letter dated 16.5.1996 addressed to the C.M.O. Bulandshahr for getting the Post-mortem of the body of the deceased conducted (Ext. Ka-7). Photograph of the dead body of the deceased (Photo Nash) (Ext. Ka-8). He, thereafter, packed and sealed the dead body of the deceased and dispatched the same for Post-mortem.

9. P.W. 5 Dr. U.S. Faujdar conducted the Post-mortem of the dead body of the deceased on 16.5.1996. In the opinion of the Doctor, the cause of death of the deceased was Coma as a result of ante mortem injuries. The Doctor who conducted the autopsy on the body of the deceased noted the following injuries :

"(I) fire arm wound of entry on left side of scalp 5cm above to left ear measuring 2 X 1 ½ cm X brain cavity deep. Margins are inverted. No bleeding or tattooing present- communicating through and through to the wound of exit. - On right side of the scalp measuring 8 x 6 cm x brain cavity deep- Margins are everted. Brain tissue is coming out. The wound is situated 3 cm above the right ear.

(ii) Lacerated wound 1 x ½ cm muscle deep on right side of the chest."

He accordingly, prepared the Post-mortem report dated 16.5.1996 (Ext. ka-9).

10. While the aforesaid exercise was undertaken, Narendra Singh, the father of the deceased Babita upon coming to know about the death of his daughter, submitted a written report dated 16.5.1996 at Police Station Auragabad, District Bulandshahr (Ext. Ka-1). The aforesaid written report clearly implicates the accused-appellant of having committed the crime on account of non fulfilment of the demand of dowry made by him.

11. Upon the submission of the written report dated 16.5.1996 (Ext. Ka-1), the case was altered under section 304 B IPC. Accordingly, the investigation of the case proceeded in line with the aforesaid.

12. On the basis of the material collected, during the course of Investigation, the Investigating Officer opined to submit a charge sheet against the accused-appellant under section 304 B, 498A IPC and Sections ¾ Dowry Prohibition Act. Accordingly, a charge sheet dated 16.6.1996 (Ext. Ka-10) was submitted against the accused appellant calling upon him to answer the charges under sections 304 B, 498A IPC and Sections ¾ Dowry Prohibition Act. Upon the submission of the charge sheet dated 16.6.1996, cognizance was taken by the Court concerned vide order dated 9.7.1996. Thereafter the case was committed to the Court of Sessions and accordingly, S.T. No. 639 of 1999 (State Vs. Bablu @ Narendra Singh) came to be registered.

13. The Court below vide order dated 27.7.1999 framed the charges against the accused appellant. Three separate and distinct charges were framed against the accused-appellant being under sections 304 B IPC, 498A IPC and Sections ¾ Dowry Prohibition Act.

14. The accused-appellant denied the charges so framed against him and claimed to be tried. Accordingly, the burden fell upon the prosecution to bring home the charges so framed.

15. The prosecution in discharge of its burden adduced the following witnesses:

P.W. 1- Harviri is the mother of the deceased Babita. This witness has categorically stated the entire facts from the date of the marriage upto the date of death of the deceased. She has duly proved the payment of dowry and also the additional demand of dowry by the accused. She has further duly explained the commission of cruelty upon her daughter as was disclosed to her by the deceased. This witness has been cross-examined in detail on behalf of the accused. However, she has remained consistent. The defence could not cull out any fact in her statement on the basis of which this witness could be discarded as not being credible or reliable and hence unworthy of trust.

P.W.2- Sunil Kumar is the brother of the deceased. The testimony of this witness is similar to that of P.W.1 the mother of the deceased. This witness has also supported the prosecution case like P.W.1 and there is no such dissimilarity in the statement of P.W. 2 when compared with the statement of P.W.1 that it can be regarded as improbable. This witness has also been cross-examined. However, the defence has failed to dislodge the testimony of this witness.

P.W. 3- Rajvir Singh is the head mohrir of P.S. Auranagabad, District Bulandshahr. He is the scribe of the F.I.R. dated 15.5.1996 (Ext. Ka-2) and has proved the same. He has also proved Ext. ka-3 which is the letter dated 9.7.2007 sent to the S.S.P., Bulandshahr for issuing the copies of the G.D. and also Ext. ka-4 which is the carbon copy of report No. 4, dated 15.5.1996.

P.W. 4- S.I. Ram Gopal Yadav, this witness has prepared the documents pertaining to the panchayatnama and the detailed Police scroll i.e. Exts. Ka- 5,6,7 and 8. He has duly proved the same.

P.W. 5- Dr. U.S. Fauzadar is the Doctor who has conducted the Post-mortem of the body of the deceased. He has proved the Post-mortem report (Ext. Ka-9). The injuries found on the body of the deceased and noted in the Post-mortem report stand corroborated by the testimony of this witness.

P.W.6- S.K. Rana is the Investigating Officer of the case, after the submission of the written report dated 16.5.1996 (Ext.ka-1). Upon the submission of the report dated 16.5.1996, the case was altered under section 304 B IPC. This witness has detailed the entire investigation conducted by him and also the recoveries made by him. In cross-examination, this witness could not be dislodged by the prosecution.

P.W.7- Harish Chand Panda was posted at Police Station, Aurangabad, District Bulandshahr. He has proved Ext.Ka-11 which is the site plan, Ext. Ka-12 which is the recovery memo pertaining to plain earth and earth mixed with blood as well as other articles, Ext. Ka-13 i.e. written report dated 16.5.1996, submitted by Narendra Singh. This witness has also been cross-examined but he has remained consistent through out.

16. Apart from relying upon the testimony of the aforesaid witnesses the prosecution also relied upon the testimony of two court witnesses namely, Satya Prakash C.W.1 and Awadhesh Singh C.W. 2. The testimonies of these Court witnesses are not relevant for deciding the issues raised in this appeal.

17. The prosecution in order to prove its case also filed certain documents which were either admitted or proved and consequently marked as exhibits. The same are tabulated hereunder:

Ex. Ka-1 is the written report dated 16.5.1996 submitted by Narendra Singh.

Ex. Ka-2 is the F.I.R. dated 15.5.1996 lodged by Vijay Singh.

Ex. Ka-3 is the letter dated 9.7.2007 sent to S.S.P. Office Bulandshahr for issuing the G.D.

Ex. Ka-4 is the report No. 34 dated 15.5.1996 pertaining to the G.D.

Ex. Ka-5 is the inquest report dated 16.5.1996 pertaining to the deceased Babita.

Ex. Ka-7 is the letter dated 16.5.1996 addressed to the C.M.O. Bulandshahr and sent by the Investigating Officer.

Ex. Ka-8 Photograph of the dead body (Photo Nash)

Ex. Ka-9 is the Post-mortem report dated 16.5.1996 of the deceased Babita

Ex. Ka-10 is the charge sheet dated 16.6.1996 submitted by Investigating Officer (P.W. 6- Sarvesh Kumar Rana).

Ex. Ka-11 is the site plan of the place of occurrence prepared by P.W. 7 Harish Chand Panda.

Ex. Ka-12 is the memo of recovery of plain earth and earth mixed with blood.

Ex. Ka-13 is the written report dated 16.5.1996 submitted by Narendra singh.

18. After the prosecution evidence was over all the incriminating material and the adverse circumstances were placed before the accused. The accused-appellant denied all the questions put to him under section 313 Cr.P.C. by repeatedly saying that it is false. However, in reply to question No. 2, he admitted the factum regarding his marriage with the deceased. However, no defence regarding the innocence of the accused appellant on the plea of alibi or otherwise was raised.

19. The accused-appellant in proof of his innocence adduced D.W. 1 Sher Singh and D.W. 2 Satpal Singh. But the accused Bablu @ Narendra Singh himself did not depose before the court below to establish his innocence on the plea of alibi or otherwise. D.W. 1 and D.W.2 were disbelieved by the Court below.

20. The Court below upon consideration of the material on the record, concluded that in order to bring home the charge under section 304 B IPC, the following test must be satisfied: (I) The death has occurred in unnatural circumstances. (ii) Such death has occurred within seven years of marriage. (iii) The deceased has been subjected to cruelty by her husband or the relatives of her husband immediately before the occurrence (iv) Cruelty was committed upon the deceased for non fulfilment of the demand of dowry.

21. On behalf of the accused-appellant, it was urged before the Court below that the death of the deceased is not attributable to the appellant as the deceased has died on account of a gun shot injury caused by some unknown miscreants and consequently, the F.I.R. was registered under Section 302 IPC. It was then submitted that no such evidence has been adduced by the prosecution to establish that cruelty was committed upon the deceased for non fulfilment of dowry. It was also urged on behalf of the appellant that in case cruelty was committed upon the deceased for non fulfilment of dowry, then the proceedings ought to have been initiated at the first opportunity. However, no such proceedings were initiated. It was also urged that there is no independent witness of the occurrence which makes the prosecution case doubtful. The plea of alibi was also raised on behalf of the accused that he had gone to the house of his relative, as such, he was not present at the time and place of occurrence.

22. The Court below examined the provisions of Section 304 B IPC, 498 A IPC and ¾ Dowry Prohibition Act in the light of the evidence on the record. The Court below came to the conclusion that the testimony of P.W. 1 Harviri mother of the deceased, and P.W. 2 Sunil Kumar, the brother of the deceased is both credible and reliable. The aforesaid witnesses have been cross-examined by the defence in detail but they have remained consistent and the prosecution failed to cull out any such fact in their testimony on the basis of which their testimony could be doubted or liable to be discarded. On the strength of the oral testimony of P.W. 1 and P.W. 2 coupled with the failure on the part of the accused appellant to discharge the burden in respect of his innocence as the marriage has taken place within seven years of marriage, the Court below accepted the prosecution case.

23. Accordingly, the Court below vide judgement and order dated 24.8.2009, passed by the Additional Sessions Judge (F.T.C.) Court No. 7, Bulandshahr in Sessions Trial No. 639 of 1999 (State Vs. Bablu @ Narendra Singh), convicted the accused appellant Bablu @ Narendra Singh under section 304 B I.P.C. and consequently sentenced him to life imprisonment. He has also been convicted under section 498 A IPC but by reason of the judgement reported in 2005 (52) ACC 1912 Sunil Garg Vs. State of U.P., he has not been sentenced under section 498 A IPC. The accused appellant has further been convicted under section 3 of the Dowry Prohibition Act. Accordingly, he has been sentenced to five years rigorous imprisonment along with fine of Rs. 15,000/-. In default, the accused appellant is to undergo three months additional imprisonment. Lastly, the accused appellant has been convicted under section 4 of the Dowry Prohibition Act. As such, he has been sentenced to two years rigorous imprisonment along with fine of Rs. 1,000/-. In case of default, the appellant is to undergo three months additional imprisonment. Feeling aggrieved by the aforesaid judgement and order, the appellant has now come to this Court by means of the present criminal appeal.

24. We have heard Mr. Rajrshi Gupta, the learned counsel for the appellant and Mr. Abhijit Mukherji, the learned A.G.A. for the State.

25. Mr. Rajrshi Gupta, the learned counsel for the appellant, in challenge to the impugned judgement has urged before us that upon the submission of the written report dated 16.5.1996, the case was converted under section 304 B IPC. The same was consequently not investigated by the Investigating Officer as one under section 302 IPC. He thus submits that the aforesaid defect in the investigation has seriously prejudiced the accused appellant as the presumption arising out of an offence under section 304 B by virtue of section 113 B of the Indian Evidence Act has arisen against the accused-appellant. It is then submitted that the litmus test required to be proved in the case of an offence under section 304 B IPC is not satisfied in the present case. To lend legal support to his arguments, he has relied upon the judgements of the Apex Court in the Cases of Baijnath and Others Vs. State of Madhya Pradesh reported in 2017 (1) SCC 101, Vipin Jaiswal (A-I) Vs. State of A.P.Rep by Pub. Prosecutor, reported in 2013 (3) SCC 684 as well as the judgement of this Court in the Case of Ganpati Vs. State, reported in 2016 (8) ADJ 72. On the cumulative strength of the aforesaid submissions, it is vehemently urged by him that the impugned judgement and order passed by the Court below is liable to be set aside.

26. Mr. Abhijeet Mukherjee, the learned A.G.A. has not only opposed the present appeal but has also contradicted the submissions urged on behalf of the counsel for the appellant. According to the learned A.G.A. the charge was framed under section 304 B IPC vide framing of charge order dated 27.7.1999. The said order was never challenged by the accused and therefore, the accused-appellant is now estopped from questioning the same. As such, no benefit can be derived by the learned counsel for the appellant on the strength of the aforesaid submission. It is then submitted that the accused-appellant in proof of his innocence has neither appeared before the Court below as a defence witness nor has offered his explanation in proof of his innocence on the basis of alibi or otherwise in his statement under section 313 Cr.P.C. It is thus urged that there is no explanation on behalf of the accused appellant qua his innocence. It is lastly submitted that the oral testimony of P.W. 1 Harviri and P.W. 2 Sunil Kumar clearly implicate the accused-appellant for the offence under section 304 B IPC, 498 A IPC and section ¾ Dowry Prohibition Act. He thus concludes that none of the submissions urged on behalf of the appellant in challenge to the judgement and order passed by the court below are cogent enough to dislodge the impugned judgement. As such the appeal filed by the appellant is liable to be dismissed.

27. We have considered the rival submissions. Before proceeding to consider the veracity of the submissions urged by the learned counsel for the appellant as well as the learned A.G. A and further before proceeding to evaluate the evidence on the record, it shall be useful to refer to the cardinal rule of appellate jurisdiction in criminal jurisprudence. The Court of appeal is the last Court of fact and therefore it is the moral duty cast upon the Court of appeal to itself examine the evidence and then arrive at his own independent conclusion. With the aforesaid caution, we now proceed to discuss the case of the prosecution and the defence put forward by the accused.

28. The accused-appellant has been convicted under Section 304 B IPC. Therefore, it shall be useful to reproduce Section 304 B IPC which reads as follows.:

"Section 304B in The Indian Penal Code

1[304B. Dowry death.--

(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. Explanation.--For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.]"

29. The punishment prescribed for an offence under section 304 B is 7 years which may extend to life imprisonment.

30. For establishing the proof of an offence under section 304 B IPC, the prosecution is required to proof the following test by leading cogent and substantive evidence:

(I) Death has occurred within seven years of marriage.

(ii) The death has occurred in unnatural circumstances.

(iii) There was an immediate demand of dowry prior to the death of the deceased.

31. The various facets relating to the burden of proof and the onus of proof in respect of a dowry death have been considered in detail in the case of Akhtar @ Bhoora Vs. State of U.P., Criminal Appeal No. 6875 of 2011, decided on 25.2.2019, wherein the following has been held in paragraphs 59, 60, 61, 62, 69, 70, 71, 74, 81:

"59. We now take up the first question first, i.e. How a case based upon circumstantial evidence is to be decided. This issue has been dealt with in the celebrated case of Sharad Birdhichand Sarda Vs. State of Maharastra, 1984 (4) SCC 116. The same remains the locus classicus on the points dealt therein. The principles enumerated in the aforesaid case have been followed repeatedly including the case of Trimukh Maroti Kirkan Vs. State of Maharashtra, 2006 (10) SCC 681 as well as the recent decision of the Apex Court in the case of State of Himanchal Pradesh Vs. Raj Kumar reported in 2018 (2) SCC 69.

60. The Apex Court in paragraphs 143 to 145, 151 and then in paragraphs 159, 160 of the judgement in the case of Sharad Birdhichand Sarda (Supra) has observed as follows regarding the parameters which must be fulfilled before recording a finding of guilt against an accused in a case based upon circumstantial evidence:

" 143. Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz., circumstances Nos. 4,5,6,8,9,11,12,13,16, and 17. As these circumstances were not put to the appellant in his statement under Section 313 of the Criminal Procedure Code 1973 they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Hate Singh Bhagat Singh v. State of Madhya Pradesh this Court held that any circumstance in respect of which an accused was not examined under Section 342 of the Criminal procedure code cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 of the old Code (corresponding to Section 313 of the Criminal Procedure Code 1973), the same cannot be used against him. In Shamu Balu Chaugule v. State of Maharashtra this Court held thus:

"The fact that the appellant was said to be absconding not having been put to him under section 342, Criminal Procedure Code, could not be used against him."

144. To the same effect is another decision of this Court in Harijan Megha Jesha v. State of Gujarat, where the following observation were made:

"In the first place, he stated that on the personal search of the appellant, a chadi was found which was blood stained and according to the report of the serologist, it contained human blood. Unfortunately, however, as this circumstance was not put to the accused in his statement under section 342, the prosecution cannot be permitted to rely on this statement in order to convict the appellant.':

145. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decision of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code have to be completely excluded from consideration.

"151. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete than a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court.

"159. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied:

(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved.

(2) the said circumstance point to the guilt of the accused with reasonable definiteness, and

(3) the circumstance is in proximity to the time and situation.

160. If these conditions are fulfilled only then a court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. On the facts and circumstances of the present case, this does not appear to be such a case. This aspect of the matter was examined in Shankarlal's case where this Court observed thus:

"Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused."

61. The aforesaid principles have been reiterated and reaffirmed by the Apex Court, in the recent case of State of Himanchal Pradesh Vs. Rajkumar (Supra). Paragraphs 9 and 10 of the aforesaid judgement are relevant for the issue in hand. Accordingly, the same are reproduced herein under:

"9. Prosecution case is based on circumstantial evidence. It is well settled that in a case based on circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established and that those circumstances must be conclusive in nature unerringly pointing towards the guilt of the accused. Moreover all the circumstances taken cumulatively should form a complete chain and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.

10. In a case, based on circumstantial evidence, the inference of guilt can be drawn only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. In Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681, it was held as under:-

"12. ...........The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence."

The same principle was reiterated in State of Rajasthan v. Kashi Ram (2006) 12 SCC 254, Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731, State of Maharashtra v. Suresh (2000) 1 SCC 471 and State of Tamil Nadu v. Rajendran (1999) 8 SCC 679.

62. This takes us to the second question involved in this appeal which is regarding the relevance of motive and whether the test laid down by the Apex Court in the case of Sharad Birdhichand Sarda (Supra) is satisfied or not. We may point out that it is by now well settled that in the case of direct evidence motive is irrelevant. However, in a case based upon circumstantial evidence, it is an important factor to be considered while deciding the guilt of an accused. In fact in a case relating to circumstantial evidence, the motive behind the occurrence on the part of the accused plays an important role in deciding the guilt of the accused. It will be helpful to quote paragraph No. 15 of the judgement of the Apex Court in the case of Sheo Shankar Singh Vs. State of Jharkhand, reported in 2011 (3) SCC 654, wherein the said issue has been dealt with.

"15. The legal position regarding proof of motive as an essential requirement for bringing home the guilt of the accused is fairly well settled by a long line of decisions of this Court. These decisions have made a clear distinction between cases where the prosecution relies upon circumstantial evidence on the one hand and those where it relies upon the testimony of eyewitnesses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of a motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Proof of motive, however, recedes into the background in cases where the prosecution relies upon an eyewitness account of the occurrence. That is because if the court upon a proper appraisal of the deposition of the eyewitnesses comes to the conclusion that the version given by them is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely, even if the prosecution succeeds in establishing a strong motive for the commission of the offence, but the evidence of the eyewitnesses is found unreliable or unworthy of credit, existence of a motive does not by itself provide a safe basis for convicting the accused. That does not, however, mean that proof of motive even in a case which rests on an eyewitness account does not lend strength to the prosecution case or fortify the court in its ultimate conclusion. Proof of motive in such a situation certainly helps the prosecution and supports the eyewitnesses. See Shivaji Genu Mohite v. State of Maharashtra [(1973) 3 SCC 219 : 1973 SCC (Cri) 214] , Hari Shanker v. State of U.P.[(1996) 9 SCC 40 : 1996 SCC (Cri) 913] and State of U.P.v. Kishanpal [(2008) 16 SCC 73 : (2010) 4 SCC (Cri) 182] "

69. The question regarding the discharge of initial burden by the prosecution in a case based upon circumstantial evidence was also the subject matter of consideration in the case of Ashok Kumar (Supra). The following has been observed by the Division Bench:

"With regard to the issue of initial burden however, irrespective of the provisions contained in section 106 of Indian Evidence Act, the initial burden is always upon the prosecution to adduce material on the basis of which an inference regarding the commission of the offence by the accused can be drawn. This discharge of initial burden is mandatory as held in the case of Joydeb Patra and Others Vs. State of West Benal 2014 (12) SCC 444:-

10. We are afraid, we cannot accept this submission of Mr. Ghosh. This Court has repeatedly held that the burden to prove the guilt of the accused beyond reasonable doubt is on the prosecution and it is only when this burden is discharged that the accused could prove any fact within his special knowledge under Section 106 of the Indian Evidence Act to establish that he was not guilty. In Sucha Singh Vs. State of Punjab (2001) 4 SCC 375, this Court held:

"19. We pointed out that Section 106 of the Evidence Act is not 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 where prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference."

Similarly, in Vikramjit Singh Vs. State of Punjab (2006) 12 SCC 306, this Court reiterated:

"14. Section 106 of the Indian Evidence Act does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case has been proved the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same. Of course, there are certain exceptions to the said rule, e.g., where burden of proof may be imposed upon the accused by reason of a statute."

Once the initial burden is discharged, then the onus shifts on the accused to explain the status of his innocence or involvement.

70. The burden to prove as to whether the death of the deceased was accidental or homicidal but not on account of the accused lay on the accused himself. However, in view of the provisions of Sections 103 and 106 of the Indian Evidence Act 1872, the same does not absolve the prosecution of its initial burden to firmly establish it's own stand as held by the Apex Court in the case of Sawal Das Vs. State of Bihar 1974 (4) SCC 193 paragraph no. 10 is extracted hereinunder:-

"10. Neither an Application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which if believed will sustain a conviction, or, which makes out prima facie case that the question arises of considering facts of which the burden of proof may lie upon the accused. The crucial question in the case before us is: Has the prosecution discharged its initial or general and primary burden of proving the guilt of the appellant beyond reasonable doubt?"

71. The Division Bench also dealt with the issue relating to the discharge of burden by an accused, having special knowledge of fact and he has to come out with an explanation. In the context of the above, the Division Bench in Ashok Kumar's case (Supra) observed as follows:

"The Apex Court however in the same judgment in paragraph no. 9 has observed, relying on the case of Gurcharan Singh & Another Vs. State of Punjab AIR 1956 SC 460, that an accused having special knowledge of a fact has to come out with an explanation and discharge the burden as transcripted in paragraph no. 9 which is extracted hereinunder:-

9. Learned Counsel for the appellant contended that Section 106 of the Evidence Act could not be called in aid by the prosecution because that section applies only where a fact relating to the actual commission of the offence is within the special knowledge of the accused, such as the circumstances in which or the intention with which an accused did a particular act alleged to constitute an offence. The language of Section 106 Evidence Act does not, in our opinion, warrant putting such a narrow construction upon it. This Court held in Gurcharan Singh v. State of Punjab(1), that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certainly lies upon him. It is a different matter that the quantum of evidence by which he may succeed in discharging his burden of creating a reasonable belief, that circumstance, absolving him from criminal liability may have existed, is lower than the burden resting upon the prosecution to establish the guilt of an accused beyond reasonable doubt."

Explaining the same principles, the Apex Court in the case of Arvind Singh Vs. State of Bihar 2001 (6) SCC 407 acquitted the husband by explaining a liability cast on the husband, but at the same time observing that it is a social and heinous crime. The Court observed that if direct evidence is not available then circumstantial evidence with reasonable probity and without any break in the link of the chain of events has to be established. The observations made by the Apex Court in paragraph nos. 21 and 24 are extracted hereinunder:-

"21. Mr. H.L. Agrawal, learned senior Advocate, however, emphatically contended that considering the hour of the day and the factum of the wife being burnt and no other explanation coming forth, question of husband escaping the liability of murder does not and cannot arise. We are however unable to lend our concurrence to the aforesaid. While it is true that the husband being the companion in the bedroom ought to be able to explain as to the circumstances but there exist an obligation on the part of the prosecution to prove the guilt of the accused beyond all reasonable doubt. Criminal jurisprudential system of the country has been to that effect and there is neither any departure nor any escape therefrom.

24..........It is undoubtedly a social and heinous crime to have the wife burnt to death but without any proper and reliable evidence, the law court can not by itself also justify its conclusion in the matter of involvement of the husband: direct evidence may not be available but circumstantial evidence with reasonable probity and without a snap in the chain of events would certainly tantamount to a definite evidence about the involvement but not otherwise........."

The Apex Court in the decision of Gajanan Dashrath Kharate Vs. State of Maharashtra 2016 (4) SCC 604 relying on the case of Trimukh Maroti Kirkan (supra) has observed that the burden is on the inmates of the house to offer an explanation about the death of the deceased. Paragraph no. 13 is extracted hereinunder:-

"13. As seen from the evidence, Appellant-Gajanan and his father-Dashrath and mother-Mankarnabai were living together. On 07.04.2002, mother of the Appellant-accused had gone to another village-Dahigaon. The prosecution has proved presence of the Appellant at his home on the night of 07.04.2002. Therefore, the Appellant is duty-bound to explain as to how the death of his father was caused. When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give 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 the accused to offer. On the date of occurrence, when the accused and his father Dashrath were in the house and when the father of the accused was found dead, it was for the accused to offer an explanation as to how his father sustained injuries. When the accused could not offer any explanation as to the homicidal death of his father, it is a strong circumstance against the accused that he is responsible for the commission of the crime."

72. The Apex Court in the case of Trimukh Maroti Kirkan Vs. State of Maharashtra (Intra) in a matter arising out of such an incident while referring to the decision of the Apex Court in the case of State of West Bengal Vs. Noor Mohammad Umar and others 2000 (8) SCC, 382 held that it is difficult to put the extreme burden on the prosecution to lead such evidence which can only be gathered from those who have proximity with the deceased. It is in this context that the Court proceeded to discuss the presumption that can be raised on the basis of existing facts so as to allow the Court to treat the onus having been shifted on the accused.

73. In order to substantiate the conclusion of a valid presumption against the accused-husband, the Apex Court has ruled that the onus is on the husband to explain the case of death of a house wife who is normally residing in the same living place with her husband. This presumption in terms of Section 106 shifts the burden on the husband as he is in exclusive possession of the premises and there is no involvement of any outsider. The fact of the happening of an incident inside the premises is presumed to be in the special knowledge of the ocuupier, and it therefore is an onus on the occupier to divulge information about the incident or otherwise reasonably explain his absence or ignorance about the same. The view of the Apex Court discussed elaborately are to be found in paragraph nos. 13 to 18, 20, 21 and 22 in the case of Trimukh Maroti Kirkan Vs. State of Maharashtra 2006 (10) SCC 681.

13. The demand for dowry or money from the parents of the bride has shown a phenomenal increase in last few years. Cases are frequently coming before the Courts, where the husband or in-laws have gone to the extent of killing the bride if the demand is not met. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in Court as they want to keep aloof and do not want to antagonize a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the house should go unpunished.

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 Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab vs. Karnail Singh (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 traveling 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.

16. A somewhat similar question was examined by this Court in connection with Sections 167 and 178-A of the Sea Customs Act in Collector of Customs v. D. Bhoormall AIR 1974 SC 859 and it will be apt to reproduce paras 30 to 32 of the reports which are as under :

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

31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered - to use the words of Lord Mansfield in Blatch v. Archer (1774) 1 Cowp. at p.65 "according to the proof which it was in the power of one side to prove, and in the power of the other to have contradicted". Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden.

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

17. The aforesaid principle has been approved and followed in Balram Prasad Agrawal v. State of Bihar & Ors. AIR 1997 SC 1830 where a married woman had committed suicide on account of ill- treatment meted out to her by her husband and in-laws on account of demand of dowry and being issueless.

18. The question of burden of proof where some facts are within the personal knowledge of the accused was examined in State of West Bengal v. Mir Mohammad Omar & Ors. (2000) 8 SCC 382. In this case the assailants forcibly dragged the deceased, Mahesh from the house where he was taking shelter on account of the fear of the accused and took him away at about 2.30 in the night. Next day in the morning his mangled body was found lying in the hospital. The trial Court convicted the accused under Section 364 read with Section 34 IPC and sentenced them to 10 years RI. The accused preferred an appeal against their conviction before the High Court and the State also filed an appeal challenging the acquittal of the accused for murder charge. The accused had not given any explanation as to what happened to Mahesh after he was abducted by them. The learned Sessions Judge after referring to the law on circumstantial evidence had observed that there was a missing link in the chain of evidence after the deceased was last seen together with the accused persons and the discovery of the dead body in the hospital and had concluded that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt. This Court took note of the provisions of Section 106 of the Evidence Act and laid down the following principle in paras 31 to 34 of the reports :

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

32. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the court has to presume the existence of certain facts.

Presumption is a course recognised by the law for the court to rely on in conditions such as this.

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

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

20. In Ram Gulam Chaudhary & Ors. v. Sate of Bihar (2001) 8 SCC 311, 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 have 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.

21. In a case based on circumstantial evidence where no eye- witness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court. [See State of Tamil Nadu v. Rajendran (1999) 8 SCC 679 (para 6); State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 (para 40); State of Maharashtra v. Suresh (2000) 1 SCC 471 (para 27); Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731 (para 15) and Gulab Chand v. State of M.P. (1995) 3 SCC 574 (para 4)].

22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes placed in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v. State of Himachal Pradesh AIR 1972 SC 2077 it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with 'khokhri' and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra (1992) 3 SCC 106 the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. In State of Tamil Nadu v. Rajendran (1999) 8 SCC 679 the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime.

The aforesaid decision has been followed in the case of Raj Kumar Prasad Vs. State of Bihar 2007 (10) SCC 433, in the case of Narendra Vs. State of Karnataka 2009 (6) SCC 61 and in the decision of Gajanan Dashrath Kharate Vs. State of Maharashtra 2016 (4) SCC 604."

The Apex Court in the decision of Gajanan Dashrath Kharate Vs. State of Maharashtra 2016 (4) SCC 604 relying on the case of Trimukh Maroti Kirkan (supra) has observed that the burden is on the inmates of the house to offer an explanation about the death of the deceased. Paragraph no. 13 is extracted hereinunder:-

"13. As seen from the evidence, Appellant-Gajanan and his father-Dashrath and mother-Mankarnabai were living together. On 07.04.2002, mother of the Appellant-accused had gone to another village-Dahigaon. The prosecution has proved presence of the Appellant at his home on the night of 07.04.2002. Therefore, the Appellant is duty-bound to explain as to how the death of his father was caused. When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give 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 the accused to offer. On the date of occurrence, when the accused and his father Dashrath were in the house and when the father of the accused was found dead, it was for the accused to offer an explanation as to how his father sustained injuries. When the accused could not offer any explanation as to the homicidal death of his father, it is a strong circumstance against the accused that he is responsible for the commission of the crime."

74. The Apex Court in the case of State of Rajasthan Vs. Thakur Singh, (2014) 12 SCC, 211 while referring to an earlier decision observe as follows in paragraph 16:

16. Way back in Shambhu Nath Mehra v. State of Ajmer MANU/SC/0023/1956 :1956 SCR 199 this Court dealt with the interpretation of Section 106 of the Evidence Act and held that the section is not intended to shift the burden of proof (in respect of a crime) on the accused but to take care of a situation where a fact is known only to the accused and it is well nigh impossible or extremely difficult for the prosecution to prove that fact. It was said:

This [Section 101] lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not."

81. Apex Court in the case of Sachchey Lal Tiwari Vs. State of U.P.. AIR 2004 SC, 5039 in paragraph no.7 has observed as follows:

"7... Murders are not committed with previous notice to witensses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence."

32. When the case of the appellant is examined in the light of the observations as noted above, it is established beyond doubt that the prosecution has discharged its burden by leading evidence to bring home the charge alleged against the appellant but has also established its stand. The test laid down for proof of a case based upon circumstantial evidence in the case of Sharad Birdhichand Sarda (Supra) has been clearly established. Secondly the prosecution has proved the motive behind the occurrence by adducing P.W.1 and P.W. 2 whose testimony is consistent and specific in this regard. The prosecution has further discharged its initial burden by leading evidence to bring home the charge alleged against the appellant as well as its stand right from the beginning. The two prosecution witnesses of fact namely P.W. 1 Harviri and P.W. 2 Sunil Kumar have fully supported the prosecution case and their testimonies also fulfil the litmus test required to be proved to bring home the charge for an offence punishable under section 304 B IPC. The defence in spite of detailed cross-examination of the aforesaid two witnesses failed to dislodge them. The defence has failed to answer the various other test which are required to be answered for dislodging the charge under section 304 B IPC and noted in the case of Akhtar @ Bhura (Supra). We have ourselves scrutinized the testimony of P.W. 1 Harviri and P.W. 2 Sunil Kumar. However, we could not find any such discrepancy on the basis of which the testimonies of the aforesaid prosecution witnesses could be discarded. P.W. 1 Harviri and P.W. 2 Sunil Kumar are both credible and reliable and therefore their testimonies are worthy of trust. Consequently, we do not find any illegality in the finding recorded by the Court below qua the guilt of the accused-appellant.

33. The Apex Court in the case of Hem Chand Vs. State of Haryana, reported in 1994 (6) SCC 727 considered the question as to whether the extreme punishment of imprisonment for life is warranted in a case under section 304 B IPC. The Apex Court having considered the jurisprudential aspect of section 304 B IPC observed as follows in paragraph 7:

"Now coming to the question of sentence, it can be seen that Section 304-B I.P.C. lays down that "Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life." The point for consideration is whether the extreme punishment of imprisonment for life is warranted in the instant case, A reading of Section 304-B I.P.C, would show that when a question arises whether a person has committed the offence of dowry death of a woman that all that is necessary is it should be shown that soon before her unnatural death, which took place within seven years of the marriage, the deceased had been subjected, by such person, to cruelty or harassment for or in connection with demand for dowry. If that is shown then the court shall presume that such a person has caused the dowry death. It can therefore be seen that irrespective of the fact whether such person is directly responsible for the death of the deceased or not by virtue of the presumption, he is deemed to have committed the dowry death if there were such cruelty or harassment and that if the unnatural death has occurred within seven years from the date of marriage. Likewise there is a presumption under Section 113-B of the Evidence Act as to the dowry death. It lays down that the court shall presume that the person who has subjected the deceased wife to cruelty before her death shall presume to have caused the dowry death if it is shown that before her death, such woman had been subjected, by the accused, to cruelty or harassment in connection with any demand for dowry. Practically this is the presumption that has been incorporated in Section 304-B I.P.C. also. It can therefore be seen that irrespective of the fact whether the accused has any direct connection With the death or not, he shall be presumed to have committed the dowry death provided the other requirements mentioned above are satisfied. In the instant case no doubt the prosecution has proved that the deceased died an unnatural death namely due to strangulation, but there is no direct evidence connecting the accused. It is also important to note in this context that there is no charge under Section 302 I.P.C. The trial court also noted that there were two sets of medical evidence on the file in respect of the death of the deceased. Dr. Usha Rani, P.W. 6 and Dr. Indu Latit, P.W. 7 gave one opinion. According to them no injury was found on the dead body and that the same was highly decomposed. On the other hand, Dr. Dalbir Singh, P.W. 13 who also examined the dead body and gave his opinion, deposed that he noticed some injuries at the time of re-post mortem examination. Therefore at the most it can be said that the prosecution proved that it was an unnatural death in which case also Section 304-B I.P.C. would be attracted. But this aspect has certainly to be taken into consideration in balancing the sentence to be awarded to the accused. As a matter of fact, the trial court only found that the death was unnatural and the aspect of cruelty has been established and therefore the offences punishable under Sections 304-B and 201 I.P.C. have been established. The High Court in a very short judgment concluded that it was fully proved that the death of the deceased in her matrimonial home was a dowry death otherwise than in normal circumstances as a result of cruelty meted out to her and therefore an offence under Section 304-B I.P.C. was made out. Coming to the sentence the High Court pointed out that the accused-appellant was a police employee and instead of checking the crime he himself indulged therein and precipitated in it and that bride killing cases are on the increase and therefore a serious view has to be taken. As mentioned above Section 304-B I.P.C. only raises presumption and lays down that minimum sentence should be seven years but it may extend to imprisonment for life. Therefore awarding extreme punishment of imprisonment for life should be in rare cases and not in every case. "

34. When the case in hand is examined, we find that right from the date of marriage upto the date of occurrence i.e. 15.5.1996, no proceedings have been initiated by the family members of the deceased against the accused-appellant for having committed an offence under section 498 IPC and sections ¾ Dowry Prohibition Act.

35. In view of the discussions made herein above, we are of the view that the finding recorded by the court below that the appellant is guilty of having caused the death of his wife is not liable to be interfered with. We accordingly, affirm the aforesaid finding. However, since the basis of the finding recorded by the Court below is the statutory presumption emanating under section 113 B of the Indian Evidence Act, we feel that in the absence of any such evidence which directly points at the guilt of the accused, the punishment awarded by the Court below which is life sentence is to excessive and harsh in the facts and circumstances of the case. In our considered opinion the same requires to be modified. Accordingly, in line with the observations made by the Apex Court in the Case of Hem Chand Vs. State of Haryana (Supra), the present criminal appeal is liable to be partly allowed.

36. The appeal consequently succeeds and is allowed in part. The conviction awarded by the Court below to the accused-appellant for offence under sections 304 B, 498A IPC and Sections ¾ Dowry Prohibition Act, is maintained. However, in view of the discussions made herein above, the sentence awarded to the accused-appellant by the Court below is modified. The appellant is awarded 12 years cumulative sentence in respect of the conviction recorded by the trial Court.

37. However, this Court is not unmindful of the judgement of the Apex Court in the case of Ankush Shivaji Gaikwad Vs. State of Maharashta, reported in AIR 2013 SC 2454. The Apex Court in the aforesaid judgement has discussed the entire case law relating to grant of compensation where the sentence is altered. After considering the entire gamut of case law on the subject, the Apex Court concluded as follows in paragraph 62:

"62. To sum up: While the award or refusal of compensation in a particular case may be within the Court's discretion, there exists a mandatory duty on the Court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation. It is axiomatic that for any exercise involving application of mind, the Court ought to have the necessary material which it would evaluate to arrive at a fair and reasonable conclusion. It is also beyond dispute that the occasion to consider the question of award of compensation would logically arise only after the court records a conviction of the accused. Capacity of the accused to pay which constitutes an important aspect of any order under Section 357 Cr.P.C. would involve a certain enquiry albeit summary unless of course the facts as emerging in the course of the trial are so clear that the court considers it unnecessary to do so. Such an enquiry can precede an order on sentence to enable the court to take a view, both on the question of sentence and compensation that it may in its wisdom decide to award to the victim or his/her family."

38. In view of the above, we have no hesitation to hold that the interest of justice shall be served in case the appellant is directed to pay a sum of Rs. 2,00,000/- to Smt. Harveeri the mother of the deceased Babita. The aforesaid amount shall be deposited by the appellant within a period of six months from the date of this judgement, failing which, the Court below shall get the same recovered as arrears of land revenue, as held by the Apex Court in the case of Kumaran Vs. State of Kerala and Anr, reported in (2017) 7 SCC 471. The appellant is in jail. He shall serve out the sentence awarded to him under this judgement, if not already completed.

 
Order Date :- 30.5.2019
 
Arshad
 

 
	                          (Hon'ble Rajeev Misra,J. )         (Hon'ble Pritinker Diwaker,J.)