Mukesh @ Mukesh Kumar Gupta vs State Of U.P.
2021 Latest Caselaw 11079 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
RESERVED
 

 
Court No. - 76
 

 
Case :- CRIMINAL APPEAL No. - 3987 of 2018
 

 
Appellant :- Mukesh @ Mukesh Kumar Gupta
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Umesh Chandra Tiwari,Bed Kant Mishra,Devendra Dahma,Ragvendra Singh Rathour
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Ajai Tyagi,J.

1. This appeal has been preferred by the appellant-Mukesh @ Mukesh Kumar Gupta against the judgment and order dated 11.7.2018, passed by Sessions Judge, Sonbhadra, in S.T. No.45 of 2016 (State vs. Mukesh @ Mukesh Kumar Gupta) arising out of Case Crime No.26 of 2016, under Sections 498-A, 304-B IPC and under Section 4 Dowry Prohibition Act, 1961 (herein after referred to as 'Act, 1961'), Police Station-Beejpur, District-Sonbhadra, by which learned trial court convicted appellant under Section 304 (2) IPC and sentenced for eight years' rigorous imprisonment and Rs.10,000/- fine and in default of fine, one year's simple imprisonment.

2. The brief facts of the case are that informant-Rajendra Prasad Shah submitted a written report at P.S.-Beejpur on 1.2.2016 stating that his sister Kusum Shah married on 7.6.2010 with Mukesh Gupta. Enough dowry was given in the marriage according to the financial condition. After some months of marriage, his sister came to parental house and told that her husband used to take alcohol and beat her also. Her father Sudarshan Gupta and mother Shiv Kumari Gupta used to demand Rs.1,00,000/- (one lakh) as additional dowry and constantly torture her. The husband and her-in-laws used to torture and even after his intervention, position was not improved. On 1.2.2016 at 1:46 a.m., Mukesh told him on mobile phone that his sister has hanged herself. On hearing it, people from her parental home went to her in-laws house and saw that a rope (gamchha) was hanging with the fan in her room. It is alleged that his sister's husband-Mukesh, father-in-law-Sudarshan Gupta, mother-in-law-Shiv Kumari have killed her for not meet out the demand of Rs.1 lakh as additional dowry.

3. On the basis of above written report, an FIR was lodged at P.S.-Beejpur under Section 498-A, 304-B IPC and 3/4 of Act, 1961, against Mukesh Kumar Gupta, Sudarshan Gupta and Shiv Kumari.

4. Nayab Tehsildar-Dudhi prepared inquest report and investigation took place. After investigation, the Investigating Officer submitted charge-sheet against Mukesh Kumar Gupta, Sudarshan Gupta and Shiv Kumari Gupta under Section 498-A, 304-B IPC and Section 3/4 of Act, 1961. Case was committed to the court of sessions and learned trial court framed charges against all the said persons under the aforesaid Section 498-A, 304-B IPC and Section 4 of Act, 1961. After completion of trial, learned trial court found no sufficient evidence against Sudarshan Gupta and Shiv Kumari Gupta and they were acquitted. Appellant-Mukesh @ Mukesh Kumar Gupta was not convicted for the offence under Section 302 IPC, but for the offence committed under Section 304(2) IPC and he was sentenced for eight years' rigorous imprisonment with Rs.10,000/- fine. Hence, this appeal.

5. Heard Shri Bed Kant Mishra, learned counsel for the appellant, Mr.B.A. Khan, learned AGA appearing for the State and perused the record.

6. Learned counsel for the appellant submitted that appellant has been falsely implicated in this case. On the basis of evidence on record, learned trial court came to the conclusion that there was no sufficient evidence on record for demand of dowry, torturing the deceased and killing the deceased for want of additional dowry and due to this reason learned trial court has acquitted all the three accused persons for above charges, hence in such a situation, it was not proper to convict the appellant-Mukesh Kumar Gupta under Section 304 (2) IPC because there is no evidence on record that anybody has seen the occurrence and there is no eye-witness in this case, who could depose that appellant has murdered the deceased. All the witnesses of fact produced by prosecution have turned hostile and nobody has supported the prosecution case. Learned counsel for the appellant submits that it is the appellant, who first of all, informed the brother of deceased regarding her death. It shows his bona fide.

7. Learned counsel for the appellant has argued that real fact is that on the fateful day, there was function of Annprashan of appellant's nephew in which the guests were invited from the family of deceased also, but no one came from her family in the function. On account of this fact, deceased was puzzled and probably due to that reason, she committed suicide and appellant being the husband of the deceased was implicated. Hence, this appeal be allowed.

8. Learned AGA argued that although the witnesses of fact have turned hostile and case of dowry death could not be proved, but there is enough evidence on record to prove that appellant murdered the deceased because he was present at the place of occurrence and occurrence took place inside the room. Learned counsel for the trial court has mentioned in the judgement that there was no access of any other person in the above said room. Learned AGA also submitted that as per provisions of Section 106 of Indian Evidence Act, 1872, it was the burden on the shoulder of appellant to prove as to why the deceased committed suicide if it was so. What was happened before the occurrence, it was the fact which was in the special knowledge of the appellant, but appellant has not discharged his burden and learned trial court rightly convicted the appellant. Learned AGA also argued that defence is taken appellant before trial court that the deceased committed suicide, but the antemortem injury in postmortem report suggests otherwise. There was no ligature mark on the neck of the deceased, therefore, it was not the case of the suicide and appellant killed his wife. There is no error in judgment of trial court, hence appeal be dismissed.

9. In this case, prosecution has produced Rajendra Prasad Shah (PW1), Choteylal Shah (PW2), Jagmati (PW3), Ramcharitra Sahu (PW7) and Shiv Prasad (PW8) as the witnesses of fact to prove its case, but all the above witnesses have turned hostile. Rajendra Prasad Shah (PW1), who is informant and brother of the deceased, has supported prosecution case in his examination-in-chief, but has turned hostile during cross-examination. Rest of the above witnesses turned hostile since beginning of their examination-in-chief. Hence, trial court acquitted all the accused persons for the charges under Section 498A, 304B IPC and Section 4 of Act, 1961, because these charges were not proved, but learned trial court held that provision of Section 106 of Indian Evidence Act, 1872, is attracted in the facts and circumstances of the case. It was burden on the shoulders of appellant to explain the surrounding circumstances due to which the deceased committed suicide, if it was his defence. Hence, on the basis of alternative remedy under Section 302 IPC, trial court found that the case of Section 304 (2) IPC is well proved against the appellant-husband.

10. Dr.Manoj Kumar Ekka (PW4) has conducted the postmortem of the deceased. In his statement, he has proved the postmortem report as Ex.ka2. PW4 in his evidence has deposed that there was antemortem injury on the neck of the deceased, which was swelling and contusion measuring 3.0cm x 2.5cm and 6.5cm away from the chin. The doctor has stated the cause of death as asphyxia due to the pressure over neck. If it would have been a case of hanging, there must have been a ligature mark on the neck of the deceased, but it was not so in this case and doctor has suggested in his statement that pressure was given on the neck of the deceased, which was the cause of death. Hence, by medical evidence available on record, it is proved that it was not the case of hanging, but it was a case of asphyxia due to pressure given on the neck of the deceased.

11. Some important aspects of this case are that deceased died in her matrimonial home, rather in the room in which she used to live with her husband. Appellant made telephonic call to the brother of the deceased, who is informant and produced before trial court as PW1 and informed him about the death of the deceased. Appellant has also stated that in his statement under Section 313 Cr.P.C. that he got to know about the hanging of the deceased when he went in his room to sleep. Hence, the appellant has admitted his presence at the place of occurrence. It is very important to note that appellant informed the brother of the deceased about hanging while according to postmortem report (Ex.ka2), it was not the case of hanging, but asphyxia due to pressure on neck.

12. Now situation is whether in view of the circumstances of this case, provision of Section 106 of Indian Evidence Act, 1872, is attracted. For ready reference Section 106 of the Act, 1872, is provided as under:

"Section 106 in The Indian Evidence Act, 1872

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."

13. It is admitted fact that (i) death was in matrimonial home of the deceased and more particularly in her room because PW7 has stated in his cross-examination that "जिस कमरे में मेरी भांजी रहती थी उसी कमरे में फांसी लगाई थी". (ii) appellant gave information to PW1 regarding the death of the deceased and in his statement under Section 313 Cr.P.C. also, he admitted his presence at the place of occurrence. Hence appellant's presence at the place of occurrence is well-proved. (iii) The cause of death told by appellant to PW1 was hanging and the explanation of hanging was given by appellant in his statement under Section 313 Cr.P.C. is that "मैं निर्दोष हूँ. मेरे चचेरे भाई के लड़के के अन्नप्राशन में मेरी बीवी के मायके का कोई नहीं आया जिससे वह काफी परेशान थी. जब कमरे में सोने गया तब घटना की जानकारी मिली".

This explanation is not at all plausible and does not appeal to the reasonable mind. (iv) Most importantly, appellant gave information of hanging of the deceased while it was found in postmortem that she died due to asphyxia by giving pressure of her neck.

14. In these circumstances, it is clear that the factum of death of the deceased was only within the special knowledge of the appellant. Hence, in the surrounding circumstances of the case, provision of Section 106 of Indian Evidence Act, 1872 is attracted.

15. In Shambhu Nath Mehra vs. State of Azmer [1956 AIR 404], it was 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 extremely difficult for the prosecution to prove that fact. It is further said that 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 all that duty. On the contrary, it is defined 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.

16. In Ganesh Lal vs. State of Maharashtra [1992 SCC (3) 106], the accused was prosecuted for the murder of his wife inside his house. Since the death had occurred in his custody, it was held that the appellant was under an obligation to give an explanation for the cause of death in his statement under Section 313 Cr.P.C. A 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 was a prime accused in the commission of murder of his wife.

17. In Dnyaneshwar vs. State of Maharashtra [(2007) 10 SCC 445], the Hon'ble Court observed that since the deceased was murdered in her matrimonial home and the appellant had not set up a case that the offence was committed by somebody else or that there was a possibility of an outsider committing the offence, it was for the husband to explain the grounds for the unnatural death of his wife.

18. The law, therefore, is quite well-settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, it is a strong circumstance pointing out to his guilt based on those facts.

19. In the present case in hand, it was duty of appellant-husband to offer plausible and cogent explanation regarding the circumstances under which the occurrence took place because factum of death of the deceased was 'especially' within the knowledge of the appellant-husband. But, he failed to do so and on account of this reason, the trial court came to the conclusion that on the basis of evidence available on record it is undisputedly proved that deceased died in her matrimonial home, rather in the room of accused and it was unnatural death. Learned trial court observed that Dr.Manoj Kumar Ekka (PW4) is independent witness and his evidence is most relevant. It is clear from medical evidence that deceased died by creating the pressure on her neck and it was given the colour of suicide by hanging.

20. Learned trial court also opined that the injury found on the neck of the deceased was not the result of abrasion by cloth, but it was the result by giving pressure on her neck, resulting her death. Learned trial court found the offence of the appellant under Section 304 (2) IPC, which needs no interference because this Court is also of definite opinion that on the basis of evidence available on record and surrounding circumstances of this case, the trial court rightly reached to the conclusion of the guilt of the appellant under Section 304(2) IPC and rightly convicted him, accordingly. But so far as the quantum of sentence is concerned, keeping in view the totality of circumstances, this Court finds it proper to reduce the sentence up to seven years, which will be sufficient to meet the ends of justice.

21. Hence, this appeal is liable to be dismissed with the modification of sentence, as above.

22. The appeal is dismissed, accordingly, with the modification of sentence.

23. Let a copy of this judgment be sent to court-below for necessary information to jail authorities.

(Ajai Tyagi, J.)

Order Date :- 13.9.2021

LN Tripathi