Gauhati High Court
CRL.A(J)/3/2022 on 26 May, 2025
Author: Manish Choudhury
Bench: Manish Choudhury
GAHC010001092022
2025:GAU-AS:7048-DB
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Criminal Appeal [J] no. 03/2022
Sukru Urang, Karbi Anglong, Diphu, Assam.
..................Appellant
-VERSUS-
The State of Assam, represented by the Public
Prosecutor, Assam.
...................Respondent
Advocates :
Appellant : Mr. A. Tewari, Amicus Curiae
Respondent State : Ms. A. Begum, Additional Public Prosecutor,
Assam
Date of Hearing : 26.05.2025
Date of Judgment & Order : 26.05.2025
BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
HON'BLE MRS. JUSTICE YARENJUNGLA LONGKUMER
JUDGMENT & ORDER [ORAL]
[Manish Choudhury, J]
This criminal appeal from Jail under Section 383 of the Code of Criminal
Procedure, 1973 ['CrPC' or 'the Code', for short] is preferred against a
Judgment and Order dated 19.03.2021 passed by the Court of learned
Sessions Judge, Karbi Anglong at Diphu in Sessions Case no. 84 of 2014. By
the Judgment and Order dated 19.03.2021, the learned Sessions Judge, Karbi
Anglong after finding the accused-appellant guilty of uxoricide, has convicted
him for the offence of murder under Section 302, Indian Penal Code [IPC].
The accused-appellant has been sentenced to undergo imprisonment for life
and to pay a fine of Rs. 5,000/-, in default of payment of fine, to undergo
rigorous imprisonment for another month.
2. The First Information Report [FIR] was lodged by one Sunil Gorh [P.W.1] on
19.04.2014 before the Officer In-Charge, Dillai Police Station stating inter-alia
that his brother-in-law [the accused-appellant] had an altercation with the
informant's younger sister, Malati Urang on 18.04.2014 over some domestic
issue and Malati Urang was assaulted with a stick by the accused-appellant.
As a result of the assault, the accused-appellant's wife, Malati Urang died in
her house on 18.04.2014. When the villagers came to know about the death
of Malati Urang, they informed the Police at about 05-00 p.m. on 19.04.2014
and handed over the accused-appellant to the Police personnel.
3. On receipt of the FIR, the Officer In-Charge of the Dillai Police Station
registered it as Dillai Police Station Case no. 11 of 2014 under Section 302,
IPC at 10-00 p.m. on 19.04.2014.
4. It has emerged that prior to the lodgment and registration of the FIR at 09-
00 p.m. on 19.04.2014, an entry was made in the General Diary of Dillai
Police Station vide General Diary Entry no. 368 at 05-00 p.m. on 19.04.2014
on the basis of an information given telephonically by Mangra Urang [P.W.3],
the Village Headman of Upper Hatuka, Mongra Basti. It was after receipt of
the telephonic information to the effect that the accused-appellant had
beaten his wife to death with a stick and on registration of General Diary
Entry no. 368 [Ext.-5], Police personnel proceeded to the Place of Occurrence
[P.O.], that is, the house of the accused-appellant. It was recorded in General
Diary Entry no. 368 that the villagers apprehended the accused-appellant
after they found the deadbody of the wife of the accused-appellant inside his
house.
5. The information recorded in General Diary Entry no. 368 was conveyed to
one Arun Gogoi [P.W.10], an Assistant Sub-Inspector of Police [ASI] at
Lahorijan Police Patrolling Out Post. On instruction of the Officer In-Charge,
Dillai Police Station, P.W.10 proceeded to the P.O. with the Officer In-Charge,
Dillai Police Station. Thereafter, P.W.10 was entrusted with the preliminary
investigation. At the P.O., the accused-appellant, who was kept detained by
the villagers, was handed over to the Police personnel and he was taken into
custody. The statements of the Village Headman [P.W.3] and other villagers
present at the P.O. were recorded. A Sketch Map of the P.O. [Ext.-3] was
prepared. The deadbody of the deceased was forwarded to Diphu Civil
Hospital and post-mortem examination on the deadbody of the deceased was
performed at Diphu Civil Hospital on 20.04.2014 after the deadbody was
brought by P.W.10 and a brother of the appellant, Dilip Urang [P.W.4]. In the
course of investigation, one branch of tree of three feet length was seized at
the P.O. on 19.04.2014 vide a Seizure List [Ext.-1]. After completing the
investigation of Dillai Police Station Case no. 11/2014 [corresponding G.R.
Case no. 326/2014], a charge-sheet under Section 173[2], CrPC was
submitted vide Charge-Sheet no. 4 on 30.05.2014 finding a prima facie case
against the accused-appellant for the offence under Section 302, IPC.
6. On submission of the Charge-Sheet, the appearance of the accused-appellant
[hereinafter also referred as 'the appellant', at places, for easy reference] was
secured from jail custody on 14.11.2014. After supplying the copies to the
appellant as per the provisions of Section 207, CrPC, the committal court by
an Order dated 14.11.2014 committed the case records of G.R. Case no.
326/2014 to the Court of Sessions, Karbi Anglong as the offence under
Section 302, IPC is exclusively triable by the Court of Sessions. The learned
Public Prosecutor was notified accordingly.
7. On receipt of the case records of G.R. Case no. 326/2014, the Court of
Sessions, Karbi Anglong ['the Trial Court', for short] registered the case as
Sessions Case no. 84 of 2014. On appearance of the appellant before the
Trial Court, the case was opened by the learned Public Prosecutor under
Section 326, CrPC. After hearing the learned Public Prosecutor and the
learned defence counsel; and upon evaluation of the materials on record, the
learned Trial Court proceeded to frame a charge under Section 302, IPC
against the appellant on 27.01.2015. When the charge was read over and
explained to the appellant, he pleaded guilty to the charge. Despite the
appellant pleading guilty to the charge, the learned Trial Court decided to
proceed with the trial.
8. During the course of the trial, the prosecution side examined eleven nos. of
witnesses and exhibited six nos. of documents, in order to bring home the
charge against the appellant. The details of the prosecution witnesses and
the documents exhibited are as under :-
Prosecution Witnesses
P.W.1 Sunil Gorh
P.W.2 Bipul Urang
P.W.3 Mangra Urang
P.W.4 Dilip Urang
P.W.5 Samuel Lagun
P.W.6 Masi Maudh
P.W.7 Dayal Jaja
P.W.8 Bandhana Urang @ Bhadro Urang
P.W.9 Dr. Son Kumar Das
P.W.10 Arun Gogoi
P.W.11 Mwblik Brahma
Exhibits
Ext.-1 Seizure List
Ext.-2 Post-Mortem Examination Report
Ext.-3 Sketch Map
Ext.-4 Charge-Sheet
Ext.-5 General Diary Entry no. 368 dated 19.04.2014
Ext.-6 Ejahar
9. After closure of evidence from the prosecution side, the appellant was
examined under Section 313, CrPC by putting before him the incriminating
circumstances appearing from the evidence of the prosecution. The plea of
the appellant at the stage of his examination under Section 313, CrPC was
denial. After hearing the learned counsel for both the sides; and upon
evaluation of the evidence/materials on record; the learned Trial Court
returned the verdict of guilt by the impugned Judgment and Order of
conviction and sentence by holding the appellant guilty of uxoricide.
10. We have heard Mr. A. Tewari, learned Amicus Curiae appearing for the
accused-appellant and Ms. A. Begum, learned Additional Public Prosecutor for
the respondent State.
11. Mr. Tewari, learned Amicus Curiae appearing for the appellant has submitted
that there was no eye-witness to any incident of assault on the deceased.
Though the appellant has been held guilty of uxoricide, there was no history
of any strained relationship between the appellant and the deceased. Mr.
Tewari has submitted that there was no specific evidence that the appellant
and the deceased were last seen together. He has further submitted that
though there was allegedly extra-judicial confession, such extra-judicial
confession is not to be relied upon when it is tested on the parameters
required for acceptability. He has submitted that the extra-judicial confession
cannot be termed as a voluntary one. He has further submitted that as per
the testimony of the co-villagers, the appellant was found in a pensive mood.
It would further emerge from the evidence on record that the appellant was
apprehended by the villagers and was handed over to the Police after their
arrival at the P.O. He has contended that the circumstances are not
established by way of cogent evidence and as a result, there were gaps in the
chain of circumstances to lead to the conclusion that the appellant, and none
else, was the perpetrator behind the alleged homicidal death of his wife. He
has, thus, contended that the impugned Judgment and Order of conviction
and sentence passed by the learned Trial Court needs to be interfered with.
12. Ms. Begum, learned Additional Public Prosecutor appearing for the State has
submitted that the appellant had confessed about committing the crime
before the co-villagers when they appeared at the P.O. on 19.04.2014. The
extra-judicial confession made by the appellant did not suffer either from
promise or inducement or threat. There is no whisper from the defence side
that the extra-judicial confession of the appellant was made after any kind of
threat. It would emerge from the evidence on record that the deadbody of
the appellant's wife was found lying inside the house wherein the appellant
and his wife resided and as such, the appellant owed an explanation as to
how his wife had died. It is further submitted by Ms. Begum that it was the
appellant who had handed over a lathi as the alleged weapon of assault. It is
not the case of the defence that other than the appellant and his wife, there
was any other person inside the house. The evidence of P.W.4 is reliable and
without blemish as his evidence is duly corroborated by other evidence. The
fact that the deceased met a homicidal death is evident from the nature of
injuries she sustained. Thus, there is no merit in the instant appeal.
13. We have duly considered the submissions advanced by the learned counsel
for the parties and have also perused the evidence/materials on record. We
have also gone through the testimony of the prosecution witnesses and the
documentary evidence, available in the case records of Sessions Case no. 84
of 2014, in original.
14. Before turning to the testimony of the other witnesses, we turn to the
medical evidence. P.W.9, the Autopsy Doctor in his testimony, stated that on
20.04.2014, he was serving as the Medical & Health Officer at Diphu Civil
Hospital. On that day, he performed post-mortem examination on the
deadbody of the deceased, Malati Urang, on being brought by P.W.10 and
P.W.4 in reference to Dillai Police Station Case no. 11 of 2014. On
examination of the deadbody, P.W.10 found the following :-
External Appearance : A female deadbody of about 32 years of age
XXX built medium, height approximately 5 feet, complexions was
swarthy. Eyes closed, mouth closed, bleeding present around nose. Hair
long. Rigor Mortis present with multiple injuries in upper limbs and
lacerated would in left temporal region. In scalp there was lacerated
wound of 4 cm x 4 cm in left temporal region. Membrane is intact. There
was hemorrhage inside the scalp.
Thorax : No abnormality detected.
Abdomen : No abnormality detected.
Multiple lacerated injuries in both hands and forearms. There is fracture
in right shoulder with dislocation. Another fracture in left shoulder with
dislocation.
The Autopsy Doctor further testified that in the Post-Mortem Examination
[PME] Report, he opined that the cause of death was due to head injury
caused by heavy blunt trauma. P.W.9 exhibited the PME Report as Ext.-2; his
signature therein as Ext.-2[1]; the signature of the Superintendent, Diphu
Civil Hospital as Ext.-2[2]; and the signature of the Joint Director of Medical
Services, Karbi Anglong, Diphu as Ext.-2[3].
14.1. In cross-examination, P.W.9 stated that if the deceased would have been
immediately operated, she might have been alive.
15. From the testimony of P.W.9, it has emerged that the deceased sustained
multiple injuries in upper limbs. There was lacerated wound in the left
temporal region. In the scalp portion, the deceased sustained a lacerated
wound of size, 4 cm x 4 cm in left temporal region. There were also multiple
lacerated injuries in both hands and forearms. There was fracture in the left
shoulder with dislocation and also fracture in the right soldier with dislocation.
As per the Autopsy Doctor, the death was due to head injury sustained by the
deceased in the left temporal region.
16. P.W.4 is the younger brother of the appellant. In his testimony, P.W.4
deposed to the effect that at the time of the incident, he was not in his home.
P.W.4 further stated that though his house and the house of the appellant
were in the same compound, they used to stay separately in separate
houses. On the date of the incident, he went for his work. It was later in the
day, at around 08-00 p.m., the appellant called him to his house and
disclosed to him that appellant's wife had died. After learning about the death
of the deceased, P.W.4 informed the villagers about the incident. Thereafter,
P.W.4 informed the incident to the Police. The Police personnel arrived at the
P.O. and seized one branch of tree from the P.O. wherein P.W.4 signed as a
witness. The appellant was arrested by the Police and he was thereafter
taken, to the Police Station.
16.1. In cross-examination, P.W.4 stated that he found the deceased lying dead
near a clay oven [Indian chulha] inside the house. P.W.4 stated that he did
not know who killed the deceased.
17. From the testimony of P.W.4, it has emerged that it was the appellant who
called P.W.4 to his house at around 08-00 p.m. on 18.04.2014 and disclosed
to him that his wife, that is, the deceased had died. P.W.4 found the
deadbody of the deceased lying inside the house near a clay oven [Indian
chulha]. P.W.4, other than the appellant, was the first person to see the
deadbody.
18. P.W.1 was the informant. The appellant is his brother-in-law and the
deceased was his sister. As regards the incident, P.W.1 testified to the effect
that on the date of the incident, the brother of the appellant informed P.W.1
that the appellant had killed the deceased after making a quarrel with her.
Thereafter, P.W.1 along with the villagers went to the house of the appellant.
Going there, they found the deadbody of the deceased lying on the ground
with injuries. They also found the appellant in the campus of the house
without talking to anybody. On being asked, the appellant informed P.W.1
that he assaulted the deceased with a lathi. On being led and shown by the
appellant the lathi by which the deceased was assaulted, was recovered from
the house. After seizing of the lathi, the Police took it to the Police Station.
P.W.1 stated that he was lodged the FIR on 19.04.2014.
18.1. During cross-examination, P.W.1 admitted that he did not see the incident
and he was informed by the brother of the appellant. He did not see anything
except the deadbody at the P.O.
19. Like P.W.1, the prosecution witnesses - P.W.2, P.W.3, P.W.5, P.W.6, P.W.7 &
P.W.8 - were all inhabitants of Village - Hakuta Basti and co-villagers of the
appellant and the deceased. P.W.3, Mangra Urang was the Headman of the
Village - Hakuta Basti and P.W.6, Masi Maudh was the Secretary of the
Village Defence Party [VDP] at the relevant time.
20. The prosecution witnesses - P.W.2, P.W.3, P.W.5, P.W.6, P.W.7 & P.W.8 -
had all testified that it was on 19.04.2014, they received the information from
the brother of the appellant, that is, P.W.4 that the deceased was murdered.
On receiving the information, they all reached the house of the appellant
during day-time. Reaching there, they found the deadbody of the deceased
lying on the floor inside the house of the appellant. They further testified to
the effect that at that time, the appellant was also present in his house and
he was sitting in a room. These prosecution witnesses were unanimous, in
their testimony that when they asked the appellant about the incident, the
appellant told them that he killed his wife [the deceased] with a lathi.
Noticeably, these prosecution witnesses were not confronted by the defence
on anything as regards their testimony regarding making of extra-judicial
confession by the appellant before them. Conspicuously, not even a
suggestion was put to any of these prosecution witnesses, who are co-
villagers of the appellant.
21. P.W.5, in his testimony, deposed that the appellant after making confession
that he had killed the deceased, showed a stick stating that he killed the
deceased with that stick. The appellant further told P.W.5 that he did not
know what had got into him. It was thereafter, P.W.5 informed the Police
about the incident. This part of testimony of P.W.5 is relatable to General
Diary Entry no. 368 dated 19.04.2014 recorded at 05-00 p.m. As per the
General Diary Entry no. 368, exhibited as Ext.-5, P.W.3, the Village Headman
of Hakuta Basti informed the Police Station telephonically that the appellant
had beaten his wife to death with a stick and when the villagers found the
deadbody of the deceased inside the house of the appellant, they
apprehended the appellant and kept him detained. During cross-examination,
P.W.5 stated that he did not see any cut on the deadbody.
22. P.W.6 who was the Secretary of the VDP also went to the P.O. with P.W.5.
P.W.6 who was the VDP Secretary at the relevant time, also stated that when
the appellant was asked about the reason for the death of the deceased, the
appellant told them that he did not know what had got into him. P.W.6 also
deposed that the appellant showed a stick to them saying that it was with
that stick he killed the deceased. Thereafter, the incident was informed to the
Police Station. The above part of testimony of P.W.5 and P.W.6 was not to
put into challenge by the defence when they were cross-examined.
23. The arrival of the Police personnel at the P.O. was only after recording of
G.D. Entry no. 368 at 05-00 pm. and prior to receipt of the FIR at 09-00 pm.
on 19.04.2014. The I.O, P.W.10 stated that on arrival at the P.O., he found
presence of the Village Headman and other villagers at the P.O. The I.O.,
P.W.10 was informed that the appellant had killed his wife by assaulting her
with a stick and the deadbody was on the floor inside the house. The I.O.
prepared a Sketch Map of the P.O. The I.O. [P.W.10] exhibited the Sketch
Map and his signature therein as Ext.-3 and Ext.-3[1]. The I.O., P.W.10
further stated that when he interrogated the appellant at the P.O. itself, the
appellant confessed to have killed his wife and showed them a branch of tree
which he used in assaulting the deceased. The said branch of tree was seized
at the P.O. vide Ext.-1, Seizure List in presence of witnesses. The I.O.,
P.W.10 stated that the deadbody and the appellant were thereafter, taken to
the Police Station. It was at about 09-00 p.m. on the following day, that is,
on 20.04.2014, P.W.1 lodged the FIR. Inquest was held on the deadbody and
the appellant was arrested and forwarded to the court.
23.1. In cross-examination, P.W.10 stated that he did not send the seized branch
of tree to the FSL for examination. Though P.W.10 stated that he recorded
the statement of P.W.5 earlier under Section 164, CrPC, but he did not exhibit
any such previous statement.
24. Evidently, the case is based on circumstantial evidence as there was no eye-
witness who had seen any incident of assault on the deceased by the
appellant. Neither from the testimony-in-chief of the prosecution witnesses
nor from the trend of their cross-examination by the defence it has emerged
that in the house of the appellant, there was presence of any other person at
any time. The deadbody of the deceased, that is, the appellant's wife was
found lying inside the house and all the co-villagers, who arrived at the P.O.
on getting the news and who testified as witnesses, found that the appellant
was also present in the house. The fact that the deadbody of the deceased
was lying inside the house of the appellant received corroboration from the
testimony of all the co-villagers, who testified before the Trial Court. There is
nothing emerging from the evidence on record that there was any kind of
animosity between the appellant and the co-villagers or any of them.
25. It was the younger brother of the appellant, P.W.4 who had seen the
deadbody of the deceased for the first time at around 08-00 pm. on
18.04.2014 inside the house of the appellant. It was only on 19.04.2014,
P.W.4 informed the co-villagers including the Village Headman and VDP
Secretary [P.W.6]. A question would arise as regards the delayed
communication about the death of the deceased by P.W.4. It can be noticed
from the materials on record that the Village - Hatuka Basti is located in a
very interior area and the Police Station was at a distance of 9 kms from the
P.O. It is not difficult to comprehend that in such an interior area, the people
do not venture out of their houses in late hours of night. P.W.5 was shown
the deadbody at 08-00 p.m. on 18.04.2014. The delayed communication
could also be for the reason that the appellant who appeared to be the
perpetrator of the crime, was the elder brother of P.W.4, P.W.4 might be in
dilemma whether to inform or not to inform Police or co-villagers about the
incident. The incident of death was informed to the Village Headman, VDP
Secretary and other co-villagers by P.W.4 only on the next day, that is, on
19.04.2014. After being so informed only, the Village Headman, VDP
Secretary and other co-villagers reached the P.O.
26. One of the circumstances on which the prosecution has relied on is the extra-
judicial confession made by the appellant before the co-villagers including the
Village Headman and the VDP Secretary.
27. As per Section 24 of the Evidence Act, a confession made by an accused
person would be irrelevant if the making of the confession appears to the
court to have been caused by any inducement, threat or promise, having
reference to the charge against the accused person, proceeding from a
person in authority and sufficient, in the opinion of the Court, to give the
accused person grounds which would appear to him reasonable for supposing
that by making it he would gain any advantage or avoid any evil of a
temporal nature in reference to the proceedings against him.
28. Extra-judicial confession is generally used as a corroborative link to lend
credibility to the other evidence on record. It is to be accepted with care and
caution. If it is not supported by other evidence on record and it fails to
inspire confidence, then it shall not be treated as a strong piece of evidence
for the purpose of arriving at the conclusion of guilt.
29. It has been held in Kalinga @ Kushal vs. State of Karnataka, 2024 INSC
124, that the extent of acceptability of extra-judicial confession depends on
the trustworthiness of the evidence before whom it was given and the
circumstances in which it was given. The prosecution has to establish that a
confession was indeed made by the accused; that it was voluntary in nature;
and that the contents of the confession were true.
30. In State of Rajasthan vs. Raja Ram, [2003] 8 SCC 180, it has been
observed as under :-
19. An extra-judicial confession, if voluntary and true and made in a fit
state of mind, can be relied upon by the court. The confession will have
to be proved like any other fact. The value of the evidence as to
confession, like any other evidence, depends upon the veracity of the
witness to whom it has been made. The value of the evidence as to the
confession depends on the reliability of the witness who gives the
evidence. It is not open to any court to start with a presumption that
extra-judicial confession is a weak type of evidence. It would depend on
the nature of the circumstances, the time when the confession was made
and the credibility of the witnesses who speak to such a confession.
Such a confession can be relied upon and conviction can be founded
thereon if the evidence about the confession comes from the mouth of
witnesses who appear to be unbiased, not even remotely inimical to the
accused, and in respect of whom nothing is brought out which may tend
to indicate that he may have a motive of attributing an untruthful
statement to the accused, the words spoken to by the witness are clear,
unambiguous and unmistakably convey that the accused is the
perpetrator of the crime and nothing is omitted by the witness which may
militate against it. After subjecting the evidence of the witness to a
rigorous test on the touchstone of credibility, the extra-judicial confession
can be accepted and can be the basis of a conviction if it passes the test
of credibility.
31. Resting our discussion on the aspect of extra-judicial confession at this point
for the moment, we can turn to the testimony of P.W.9, Autopsy Doctor
again. During cross-examination, the defence had elicited from P.W.9 that if
the deceased would have been immediately operated, she might have been
alive. From the unchallenged testimony of P.W.4, it has emerged that it was
at around 08-00 p.m. on 18.04.2014, the appellant called P.W.4 and took him
inside his house to inform that Malati Urang was dead. P.W.4 found the
deadbody of Malati Urang lying inside the house. In the testimony of the
Autopsy Doctor, P.W.9 and the PME Report [Ext.-2], the injuries sustained by
the deceased were mentioned. If the deceased might have survived had she
received medical attention earlier, the same clearly works out adversely
against the appellant, rather than in his favour, because it was the appellant,
who only had kept his wife [the deceased] with such injuries on her person
for long, thereby, letting her die of the injuries without making any effort to
provide medical treatment to her. An adverse inference is clearly possible to
draw against the appellant that it was he who had allowed his wife with
injuries on her person to breathe her last inside the house of the appellant.
32. It has already emerged from the evidence on record that there was nobody
else in the house of the appellant other than his wife. There was no plea, by
way of any suggestion, that there was presence of any third person in the
house. It is true that the onus of establishing a case is always on the
prosecution. Section 106 of the Evidence Act speaks about burden of proving
fact especially within knowledge. When any fact is especially within the
knowledge of any person, the burden of proving the fact is upon him. It has
been expounded that the word 'especially' means facts which are pre-
eminently or exceptionally within the knowledge of the accused. The ordinary
rule applicable to criminal trial is that the onus lies on the prosecution to
prove the guilt of the accused is not in any way modified by the rule of
evidence embodied in Section 106 of the Evidence Act. Section 106 of the
Evidence Act creates an exception to Section 101 of the Evidence Act. 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.
33. Explaining the rule of evidence contained in Section 106 of the Evidence Act,
the Hon'ble Supreme Court in Nagendra Sah vs. State of Bihar, [2021] 10
SCC 725, observed as under :-
22. Thus, Section 106 of the Evidence Act will apply to those cases
where the prosecution has succeeded in establishing the facts from
which a reasonable inference can be drawn regarding the existence of
certain other facts which are within the special knowledge of the
accused. When the accused fails to offer proper explanation about the
existence of said other facts, the court can always draw an appropriate
inference.
34. In Trimukh Maroti Kirkan vs. State of Maharashtra, [2006] 10 SC 681,
the Hon'ble Supreme Court considered the case of homicidal death inside the
house of the appellant and in that connection, the observations made are in
the following words :-
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 vs. Director of Public Prosecutions , 1944
AC 315 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 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.
* * * * *
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 place 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......
35. In Anees vs. State Government of NCT, 2024 INSC 368, three-Judge of
Bench of the Hon'ble Supreme Court has observed as under :-
50. Section 106 of the Evidence Act would apply to cases where the
prosecution could be said to have succeeded in proving facts from which
a reasonable inference can be drawn regarding guilt of the accused.
51. The 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.
* * * * *
55. If an offence takes place inside the four walls of a house and in
such circumstances where the accused has all the opportunity to plan
and commit the offence at a time and in the circumstances of his choice,
it will be extremely difficult for the prosecution to lead direct evidence to
establish the guilt of the accused. It is to resolve such a situation
that Section 106 of the Evidence Act exists in the statute book........ 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.
36. In the case in hand, it has emerged from the evidence on record that - [i]
the wife of the appellant sustained injuries, referred above, on her person
which included multiple lacerated injuries in both the hands and forearms,
fractures in right shoulder and left shoulder with dislocations and lacerated
would of size 4 cm x 4 cm in left temporal region. These injuries cannot be
self-sustained one; [ii] as per the Autopsy Doctor, the appellant's wife
sustained with those injuries on her person prior to her death; [iii] the
Autopsy Doctor opined that the head injury was caused by heavy blunt
trauma and it cannot be discarded that, the injuries sustained by the
deceased on her person were possible to be inflicted by a stick; [iv] the
deadbody of the appellant's wife was found lying inside the house of the
appellant and not in a place outside the house of the appellant; [v] there was
no one else in the house of the appellant other than the appellant and his
wife; [vi] it was the appellant who had shown the deadbody of his wife for
the first time to his younger brother, P.W.4, who had found the deadbody
lying inside the house; [vii] the appellant was found to have made extra-
judicial confession before the Village Headman, VDP Secretary and the co-
villagers on the next day, 19.04.2014; [viii] the Village Headman, VDP
Secretary and the co-villagers were not remotely alleged to be inimical to the
appellant and nothing has been brought out to indicate that they had a
motive of attributing an untruthful statement to the appellant.
37. The fact that there was extra-judicial confession from the appellant is not
contested in any manner by the defence. The testimony of the Village
Headman, VDP Secretary and the co-villagers on the aspect of making extra-
judicial confession by the appellant were clear and unambiguous that it was
admitted before them by the appellant that it was he who had killed his wife
and such testimony has passed the test on the touchstone of credibility, for
acceptance. From the testimony of the co-villagers, it was clear that the
extra-judicial confession was made by the appellant prior to giving
information to Police and arrival of the Police personnel at the P.O. There was
no indication of any threat, inducement or promise to the appellant from any
person in authority. In remote, interior and backward areas where the
inhabitants are illiterate and rustic, it is normally the village headman of the
village to whom the villagers look upto for their causes and the villagers find
themselves comfortable to confide. There was no plea from the defence that
the confession made before the Village Headman, P.W.3 and the co-villagers
was involuntary in nature. It is settled that an extra-judicial confession, if
voluntary and true and made in a fit state of mind, can be acted upon. In the
case in hand, there is no reason to disbelieve the testimony of the Village
Headman and the co-villagers that the appellant admitted before them about
killing his wife and the same is clearly a strong additional link in the chain of
circumstances.
38. In light of the above circumstances emerging from the evidence on record,
the appellant clearly owed an explanation. The appellant herein did not offer
any kind of explanation either during his examination under Section 313,
CrPC or by adducing any evidence in defence. From the suggestions made
during cross-examination of the prosecution witnesses, it does not emerge
that except clear denial, there was no suggestion even indicating about
involvement of any other person in the death of the appellant's wife; or
regarding the manner of assault; or how the appellant's wife sustained those
injuries on her person inside his own house; or why he did not take his
injured wife for medical treatment; etc.
39. Though the learned Amicus Curiae has made a submission that there would
be no application of the last seen theory in the case in hand to bring into
operation the rule of law embodied in Section 106 of the Evidence Act, we
find after consideration, more particularly, in view of the circumstances
narrated above, the submission as regard non-applicability of last seen theory
is not acceptable. Merely because there was no evidence about strained
relationship between the couple, the same cannot tilt the case in favour of
the appellant in view of the afore-mentioned strong adverse circumstances
against him. It is settled that in case when the various links have been
satisfactorily made out and the circumstances pointed to the appellant as the
probable assailant with reasonable definiteness and in proximity to the
deceased as regards time and situation, and he offers no explanation, which
if accepted, though not proved, would afford a reasonable basis for a
conclusion on the entire case consistent with his innocence, such absence of
explanation or false explanation would itself be an additional link which
completed the chain. We find, in the case in hand, that in the absence of any
explanation, not to speak of any plausible explanation, from the appellant as
regards reason having the deadbody of his wife inside the house with so
many injuries on her person, is the additional link which has completed the
chain.
40. In the light of the discussion made above and for the reasons mentioned
therein, we are of the considered view that there is no good reason to depart
from the view reached by the learned Trial Court as regards guilt of the
appellant on the charge of uxoricide. Therefore, the Judgment and Order of
conviction and sentence dated 19.03.2021 passed by the learned Trial Court
is affirmed. Resultantly, the instant criminal appeal fails.
41. Before parting with the record, we wish to place our appreciation on record
as regards the serves rendered by Mr. A. Tewari, learned Amicus Curiae
appearing for the appellant and direct the Registry to make available to him
just remuneration as per the notified fee structure applicable to the Amicus
Curiae.
42. The District Legal Services Authority is directed to award adequate
compensation to the victim[s] after due enquiry under Section 357A, CrPC
and the extant Victim Compensation Scheme, 2012 framed thereunder. We
further observe that such enquiry shall be undertaken and completed with
utmost expediency and thereafter, to award and disburse appropriate
compensation thereunder to the victims entitled upon conclusion of such
enquiry.
43. The records of the Trial Court are to be sent back forthwith.
JUDGE JUDGE
Comparing Assistant
