Ganesh Swarnkar vs The State Of Jharkhand
2023 Latest Caselaw 2456 Jhar

        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         (Criminal Appellate Jurisdiction)

                     Criminal Appeal (DB) No. 878 of 2014

Ganesh Swarnkar, s/o Gouri Sao, r/o Gagi, PO & PS-Peterwar, District-
Bokaro                                              ...... Appellant
                                 Versus
The State of Jharkhand                                        ...... Respondent

CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
       HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

For the Appellant          : Mr. Arwind Kumar, Advocate
For the State of Jharkhand : Mrs. Vandana Bharti, APP
                              --------------
                                                       ORDER

28th July 2023 Per, Shree Chandrashekhar, J.

Ganesh Swarnkar aged about 27 years, husband of the deceased Savita Devi, is aggrieved of the judgment of conviction under section 302 of the Indian Penal Code rendered in Sessions Trial Case No.132 of 2012.

2. In Sessions Trial Case No.132 of 2012, the learned Addl. Sessions Judge-II, F.T.C, Bermo at Tenughat has convicted and sentenced the appellant to undergo imprisonment for life and a fine of Rs.10,000/- under section 302 of the Indian Penal Code for committing murder of his wife.

3. The trial Judge has convicted the appellant for the following reasons: (i) the witnesses have made allegations of demand of dowry against him; (ii) a possibility of causing death of Savita Devi by throttling cannot be ruled out; (iii) he failed to establish that he was not in the house in the night of the occurrence; and (iv) he has failed to offer explanation to meet the reverse burden under sections 106 and 114 of the Indian Evidence Act, 1872.

4. The aforesaid reasonings given by the trial Judge for convicting him have been challenged by the appellant by filing the present criminal appeal under section 374 (2) of the Code of Criminal Procedure.

5. Peterwar PS Case No.130 of 2011 was lodged on the basis of the written complaint given by Anand Sonar to the police on 26 th December

2011 expressing his suspicion that Ganesh Swarnkar, Deepak Swarnkar and wife of Deepak Swarnkar have throttled his daughter to death. After the investigation, wife of Deepak Swarnkar was let off by the police for lack of evidence and Ganesh Swarnkar and Deepak Swarnkar were sent up for trial on the charge of committing murder of Savita Devi. In the trial, the prosecution has produced 17 witnesses but all of them except the doctor who conducted autopsy over the dead body of Savita Devi and the Investigating Officers who tendered evidence as PW16 and PW17 did not support the prosecution and were declared hostile - PW13 and PW14 were tendered for cross-examination by the defence.

6. PW1 is the mother, PW2 is the uncle, PW3 is the father and PW7 and PW8 are brothers-in-law of Savita Devi. The father of Savita Devi has expressed his apprehension in his written report that the accused persons committed murder of his daughter but in the Court when he came to depose he has stated that he does not know how his daughter has died and, therefore, he was declared hostile at the instance of the prosecution. Similarly, PW1, PW2, PW3, PW7 and PW8 do not claim that on the date of the occurrence they were present in the house of the appellant. Though it appears from cross-examination of these witnesses by the prosecution that they made statements before the police under section 161 of the Code of Criminal Procedure that Ganesh Swarnkar and Deepak Swarnkar were demanding a motorcycle and Rs.50,000/- in cash, in the Court they did not own their statements and flatly denied to have made any such statement before the police.

7. No doubt this is not the law that the evidence of the hostile witness cannot be considered by the Court but then the statement of a hostile witness who has completely resiled from his previous statement made before the police cannot be used by the prosecution. This is the law settled in a catena of judgments by the Hon'ble Supreme Court that a part of the evidence of a hostile witness is usable by the prosecution provided it supports the case of the prosecution [refer, "Bhajju v. State of M.P" (2012) 4 SCC 327]. This is also well-settled that the statement of a witness made under section 161 of the Code of Criminal Procedure cannot be used by the prosecution to support its case or the Court to

convict an accused. The statement of a witness made before the police during the investigation has limited utility and it can be used by the accused to contradict that witness [refer, "Parvat Singh v. State of M.P." (2020) 4 SCC 33]. Similarly the statement made by a witness under section 164 of the Code of Criminal Procedure shall not be the foundation to convict the accused [refer, "State of Karnataka v. P. Ravikumar alias Ravi & Ors." (2018) 9 SCC 614].

8. This is also not in the realm of doubt that the evidence tendered by the Investigating Officer in the trial is not a substantive piece of evidence except to the extent of recording of confessional statement and preparation of inquest and seizure memo. However, the trial Judge has extensively referred to the evidence of Sachindra Jha who was the Investigating Officer and tendered evidence in the trial as PW17 to seek support from the contents of paragraph no.66 and 71 of the case-diary that there was demand of dowry by the accused persons and the motive behind the crime was that Savita Devi was carrying a female foetus. The trial Judge has further referred to the evidence of PW15 who found injuries on the dead body of Savita Devi to raise adverse inference under sections 106 and 114 of the Indian Evidence Act, 1872.

9. In the above context, the trial Judge has referred to "Tulshiram Sahadu Suryawanshi v. State of Maharashtra" (2012) 10 SCC 373 wherein the Hon'ble Supreme Court has held as under:

"23. It is settled law that 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 position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilised. We make it clear that this section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. It is useful to quote the following observation in State of W.B. v. Mir Mohammad Omar: (SCC p. 393, para 38)

"38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. In Shambhu Nath Mehra v. State of Ajmer the learned Judge has stated the legal principle thus: (AIR p. 406, para 11) '11. This 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."

10. The trial Judge has also referred to the judgment of "State of W.B. v. Mir Mohammad Omar"(2000) 8 SCC 382 to raise an inference against the appellant that he has committed murder of his wife.

11. In "Mir Mohammad Omar" the Hon'ble Supreme Court has held as under:

"39. In the present case, the facts which the prosecution proved including the proclaimed intention of the accused, when considered in the light of the proximity of time within which the victim sustained fatal injuries and the proximity of the place within which the dead body was found are enough to draw an inference that victim's death was caused by the same abductors. If any deviation from the aforesaid course would have been factually correct only the abductors would know about it, because such deviation would have been especially within their knowledge. As they refused to state such facts, the inference would stand undisturbed."

12. Mrs. Vandana Bharti, the learned APP has referred to the medical evidence to submit that larynx and adjoining bones of Savita Devi were found broken and in such a circumstances this was the duty of the appellant to explain how his wife has suffered such injuries.

13. The doctor who conducted autopsy over the dead body of Sunita Devi has found the following injuries on her person:

"(i) red brown colored bruise at the side of neck of the deceased.

(ii) fractured larynx and adjoining bones.

Lungs- emphysematous.

Heart- right side full of blood while left side empty. Wall of carotid ruptured. Stomach-empty, small intestine liquefied, semi- digested food and gases. Large intestine- present gases. Kidney- congested. Spleen-congested, Liver-congested, Urinary bladder- empty, Uterus- present dead female foetus. Death- due to asphyxia within 12 hours. Injuries are ante-mortem in nature and as opined by the doctor are likely to produced by strangulating force."

14. The defence set-up by the appellant was that the aforesaid

injuries were caused to his wife on account of a fall in the bathroom. To corroborate this defence, PW15 was put to a suggestion in his cross- examination that the injury found over the neck of Savita Devi can be caused on account of a fall on Chimta and to this suggestion answer of PW15 has come in "affirmative".

15. The relevant portions of the cross-examination of PW15 are extracted below:

"10. I also not found the hyoid bones broken/fractured. Age of female dead foetus was not mentioned in my report.

11. ......................................

12. If a lady falls on CHIMATA (utensil made of iron used in kitchen) and it hits the nose, then such bruise, as opined by me, could be possible. Column No.22 of the report suggests and before the death, lady had taken some food. Its Column No.27 suggests that she had attended natural call before her death.

13. Asphyxia means end of breathing and blood circulation. Lack of oxygen obstructs the blood circulation. Sub-cutaneous tissues were dissected during P.M. Examination."

16. No doubt Savita Devi died in her matrimonial home and PW15 has observed a mark of bruise over her neck, and larynx and adjoining bones were fractured which may give rise to a suspicion that she has died a homicidal death. However, merely because death of a woman has taken place in her matrimonial home that by itself is not sufficient to raise a presumption under section 106 of the Evidence Act to hold an accused guilty for murder [refer, "Ranjit Singh v. State of Punjab" (2011)15 SCC 285]. Therefore the provisions under section 106 of the Evidence Act cannot be applied automatically to raise an inference against the husband that he has committed murder of his wife. As observed by the Hon'ble Supreme Court in "Shambhu Nath Mehra v. State of Ajmer" AIR 1956 SC 404, the provisions under section 106 of the Evidence Act are not intended to relieve the prosecution of its duty to prove its case and therefore in absence of prima-facie evidence on complicity of the appellant in the crime the burden shall not shift on him by operation of section 106 of the Indian Evidence Act, 1872.

17. In "Shambhu Nath Mehra" the Hon'ble Supreme Court has held as under:

"11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and S. 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.

It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, 1936 PC 169 (AIR V

23) (A) and Seneviratne v. R. 1936-3 ER 36 AT P. 49 (B). .............................................................................................................

13.We recognise that an illustration does not exhaust the full content of the section which it illustrate but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose exercise due diligence, as to the accused, the facts cannot be said to be especially" within the knowledge of the accused. This is a section which must be considered in a common sense way; and the balance of convenience and the disproportion of labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that save in a very exceptional class of case, the burden is on the prosecution and never shifts."

18. Admittedly the case of the prosecution rests on circumstantial evidence as no witness even during the investigation came forward to claim that he has seen the appellant committing murder of his wife. There is some reference of demand of dowry in respect of which affidavits were filed by the witnesses PW2, PW3, PW6 and PW7 who are related to Savita Devi but in the Court all of them have turned hostile and did not support the prosecution case. Now this is the law settled long back in "Hanumant Govind Nargundkar v. The State of Madhya Pradesh" AIR 1952 SC 343 that in a case based on circumstantial evidence the chain of circumstances must be complete and every reasonable hypothesis of innocence of the accused has been excluded.

19. In "Hanumant Govind Nargundkar" the Hon'ble Supreme Court has held as under:

"10. ... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused.

Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. ..."

20. The trial Judge was under an impression that explanation by the appellant in his examination under section 313 of the Code of Criminal Procedure was not acceptable and the same would provide a missing link in the chain of circumstances. To fortify his opinion, the trial Judge has referred to the judgment of the Hon'ble Supreme Court in "Rohtash Kumar v. State of Haryana" (2013) 14 SCC 434 wherein the Hon'ble Supreme Court has held as under:

"31. Undoubtedly, the prosecution has to prove its case beyond reasonable doubt. However, in certain circumstances, the accused has to furnish some explanation to the incriminating circumstances, which have come in evidence, put to him. A false explanation may be counted as providing a missing link for completing a chain of circumstances."

21. In his examination under section 313 of the Code of Criminal Procedure, the appellant has offered the following explanation:

"fnukad 24-12-2011 dh lqcg djhc 4-00 esjh iRuh ?kj ds ckFk:e esa fxj xbZ FkhA ml ckFk:e esa fdpu dk bLrseky djus okyh lM+yh mQZ fpeVk iM+k Fkk] mlh esa lfork dks pksV vkbZA pksV xyk esa yxh FkhA iqu% dgrs gSa fd ;g ?kVuk 26-12-2011 dks ?kj esa gqbZ FkhA" English Translation:

"My wife had a fall in the bathroom around 04:00 AM on 24 th December 2011. Sarli that is a kind of Chimta (spatula) which is used in the kitchen was lying in the bathroom and my wife suffered injury from Chimta. She suffered injury over her neck. The witness further says that the occurrence took place on 26th December 2011 in the house."

22. Deepak Swarnkar who is brother of the appellant has stated that all four brothers were living in the same house with separate kitchen. He has also stated about the cause of death of Savita Devi affirming that she suffered injury by a Chimta over her neck and was admitted at Bokaro General Hospital on 26th December 2011.

23. In our opinion, explanation offered by the appellant which is corroborated by the medical evidence is acceptable. The trial Judge seems to have overlooked the basic principle of criminal jurisprudence

that an accused is not required to prove his defence by producing evidence beyond reasonable doubt rather the test is preponderance of probability.

24. In "Harbhajan Singh v. State of Punjab" (1965) 2 SCR 235 the Hon'ble Supreme Court has observed as under:

"14. It is true that under Section 105 of the Evidence Act, if an accused person claims the benefit of Exceptions, the burden of proving his plea that his case falls under the Exceptions is on the accused. But the question which often arises and has been frequently considered by judicial decisions is whether the nature and extent of the onus of proof placed on an accused person who claims the benefit of an Exception is exactly the same as the nature and extent of the onus placed on the prosecution in a criminal case; and there is consensus of judicial opinion in favour of the view that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That, no doubt, is the test prescribed while deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but that is not a test which can be applied to an accused person who seeks to prove substantially his claim that his case falls under an Exception. Where an accused person is called upon to prove that his case falls under an Exception, law treats the onus as discharged if the accused person succeeds "in proving a preponderance of probability". As soon as the preponderance of probability is proved, the burden shifts to the prosecution which has still to discharge its original onus. It must be remembered that basically, the original onus never shifts and the prosecution has, at all stages of the case, to prove the guilt of the accused beyond a reasonable doubt. As Phipson has observed, when the burden of an issue is upon the accused, he is not, in general, called on to prove it beyond a reasonable doubt or in default to incur a verdict of guilty; it is sufficient if he succeeds in proving a preponderance of probability, for then the burden is shifted to the prosecution which has still to discharge its original onus that never shifts i.e. that of establishing, on the whole case, guilt beyond a reasonable doubt."

25. This is trite law that suspicion howsoever strong cannot take the place of legal evidence and there must be legally acceptable evidence, sufficient evidence, to prove the charge against the accused. However, in the present case, the prosecution has failed to prove the charge by producing cogent and consistent circumstances inconsistent with the innocence of the accused.

26. In view of the discussions made above, the judgment of conviction of the appellant, namely, Ganesh Swarnkar dated 20th November 2014 and the order of sentence of imprisonment for life and a fine of Rs.10,000/- dated 29th November 2014 passed under section 302

of the Indian Penal Code by the learned Addl. Sessions Judge-II, F.T.C, Bermo at Tenughat in Sessions Trial Case No. 132 of 2012 are set aside.

27. The appellant is in judicial custody.

28. Therefore, the appellant, namely, Ganesh Swarnkar shall be set free forthwith, if not wanted in connection to any other criminal case.

29. In the result, Criminal Appeal (DB) No.878 of 2014 is allowed.

30. Let the lower Court records be transmitted to the Court concerned, forthwith.

31. Let a copy of the Judgment be transmitted to the Court concerned and the concerned Jail Superintendent through Fax.

(Shree Chandrashekhar, J.)

(Anubha Rawat Choudhary, J.)

High Court of Jharkhand, Ranchi Dated: 28th July 2023 Sudhir/AFR