Jharkhand High Court

Mustak Mian @ Butan vs State Of Jharkhand .... .... Opp. Party on 12 September, 2024

Author: Rongon Mukhopadhyay

Bench: Rongon Mukhopadhyay

             Criminal Appeal (D.B.) No. 799 of 2018

     [Against the Judgment of conviction and Order of sentence dated
     07/08.05.2018, passed by learned Additional Sessions Judge-XII,
     Hazaribag, in Sessions Trial No.336 of 2013]

     Mustak Mian @ Butan, aged about 42 years S/o Late Israil Mian
     R/o Village Sariya, P.S. Churchu, P.O. Churchu, District Hazaribag.
                                                ....  .... Appellant
                                    Versus
     State of Jharkhand                         ....  .... Opp. Party

                       PRESENT
     HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
   HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
                              ......
     For the Appellant : Md. Zaid Ahmed, Advocate
     For the State     : Mr. Vishwanath Roy, Spl. P.P.
                              ......
C.A.V. on 02.09.2024               Pronounced on 12.09.2024

Per Pradeep Kumar Srivastava, J.

1. Heard learned counsel for the parties.

2. The above named sole appellant has preferred this appeal

challenging his conviction and sentence dated 07/08.05.2018

passed by Additional Sessions Judge-XII, Hazaribag in Sessions

Trial No.336 of 2013 (arising out of Churchu P.S. Case No.03 of

2013 corresponding to G.R Case No.947 of 2013) whereby and

whereunder the appellant has been held guilty for the offence

under Section 302 of the I.P.C. and sentenced to undergo R.I. for

life along with fine of Rs.1 Lakh with default stipulation.

Cr. Appeal (D.B.) No. 799 of 2018 P a g e 1 | 23

3. The facts of the case as depicted in the F.I.R. instituted on the

basis of fardbayan of one Nuruddin Ansari (P.W.-2) stating inter

alia that his daughter Gulshan Ara Khatoon (since deceased) was

married with Mustak Mian @ Butan (appellant) in the year 2011.

It is further alleged that after solemnization of marriage

informant's daughter went to her matrimonial home and lived

there properly for six months, thereafter, informant came to know

that his son-in-law in some pretext or other used to assault his

daughter and frequently stop giving food to her. The informant's

daughter was any how surviving at her matrimonial home

receiving food from neighbourers. The informant several times

attempted to resolve the matrimonial discard of his daughter and

also assured his daughter that in the course of time everything will

be settled. It is further alleged that the conduct and behavior of

son-in-law with the daughter of the informant did not change

rather physical violence increased and became usual. Not only

this, the present appellant also started demanding Rs.50,000/-

from her father and pressurized to fulfill the aforesaid demand

through physical violence and non-supply of food and other

necessities. Ultimately on 13.03.2013, the informant received a

telephonic call from his daughter that her life is not secure unless

he gives some money to her husband. Upon this, the informant

consoled his daughter that he is managing some money. On

14.03.2013, nephew of informant namely Naushad informed

through telephonic message that Gulshan Ara Khatoon has been

murdered at her matrimonial home. The informant along with

other relatives reached to the matrimonial home of his daughter at

Village Sariya P.S. Churchu and found her dead body lying on the

bed in half naked condition and dupatta was gagged in her mouth.

There was bruise and red mark on her neck and beneath the bed, a

pouch of country made wine was also lying. From the scene of

occurrence, it appeared to informant that his son-in-law Mustak

Mian @ Butan after having sexual intercourse with the deceased

has inserted dupatta in her mouth due to which she has been died.

4. On the basis of above information, F.I.R. was registered for the

offence under Sections 302 and 376 of the Indian Penal Code

against the present appellant and after investigation charge-sheet

was submitted for the aforesaid offences.

5. The learned Trial Court after hearing prosecution and defence

found sufficient material to frame the charge under Section 302 of

the I.P.C. against the present appellant and accordingly charge was

framed on 17.08.2013 and was read over and explained to accused

to which he did not plead guilty and claimed to be tried.

Cr. Appeal (D.B.) No. 799 of 2018 P a g e 3 | 23

6. In the course of trial, altogether nine witnesses were examined by

the prosecution and documentary evidence were also adduced.

7. After completion of prosecution evidence, statement of accused

was recorded under Section 313 of the Code of Criminal

Procedure which he has denied and claimed to be innocence and

falsely implicated. It is also pleaded that on the date and time of

the occurrence, he was not present at his house and later on came

to know about the murder of his wife. However, no oral or

documentary evidence has been adduced by the defence.

8. The learned Trial Court after apprising and appreciating the

prosecution evidence in the light of the defence of the accused

concluded that although F.I.R. was lodged for the offences under

Sections 302 and 376 of the I.P.C. only due to fact that the dead

body of deceased was found nude and dupatta was inserted in her

mouth. As against it, P.W.-9 Dr. R.S. Dangi, who conducted the

autopsy of the dead body of the deceased has clearly opined that

no sign of rape was found after examination of vaginal swab. The

cause of death was due to asphyxia caused by throttling. Sign of

multiple abrasions were found around the neck of the deceased. It

was also observed that the prosecution has succeeded to prove that

there was matrimonial dispute between husband and wife and

there was demand of dowry and non-fulfillment of which the

deceased was continuously tortured, harassed and her food was

also stopped. There were no any other persons in the house except

the present appellant and his wife. It is also proved that the death

of the deceased was caused due to throttling and it was not a

natural death as such mere defence of accused that he was not

present at his home and he is a driver, he was out of station being

bald plea cannot be accepted. The accused has failed to offer any

explanation as to under what circumstances, in his presence, in the

house, his wife died as an unnatural death. Therefore, principle of

Section 106 of the Indian Evidence Act may also be invoked in

this case against the accused and the accused has also failed to

prove his plea of alibi. Hence, prosecution has fully succeeded in

proving the charge levelled against the accused under Section 302

of the I.P.C. and convicted and sentenced him as stated above.

9. Learned counsel for the appellant assailing the impugned

judgment of conviction and sentence of the appellant has

vehemently argued that the learned Trial Court has committed

serious illegality by not taking into consideration that for invoking

the principles under Section 106 of the Indian Evidence Act, the

foundational facts prima facie showing guilt of the accused must

be proved by the prosecution. The prosecution has miserably

failed to prove the exact date, day and year of the demand of any

Cr. Appeal (D.B.) No. 799 of 2018 P a g e 5 | 23 illegal money and consequent torture meted with the deceased at

the hands of the appellant. None of the witnesses have been able

to prove that there was tense relationship between husband and

wife. Admittedly, the appellant is by profession a driver and

usually remains outside his house. The prosecution has miserably

failed to prove the presence of appellant at his house on the

relevant date and time of occurrence. The learned Trial Court has

passed the conviction and sentence of the petitioner only on

conjecture and surmises without any legal evidence. Hence, the

impugned judgment and order is fit to be set aside and appellant is

entitled for acquittal.

Learned counsel for the appellant has placed reliance upon

reported judgment in the case of Balvir Singh v. State of

Uttarakhand, (2023) 12 SCR 815.

10. Per contra, learned A.P.P. appearing for the State controverting the

aforesaid contentions raised on behalf of the appellant has

submitted that the prosecution has been able to prove the

foundational facts which could be proved by the prosecution.

There is no doubt that the prosecution case is based on

circumstantial evidence and there is no eye witness of the

occurrence. The circumstances proved by the prosecution clearly

shows that just within two years of marriage, the deceased was

killed in her matrimonial home while in custody of the appellant

by throttling. Her dead body was also found in the house of the

appellant. The appellant did not inform to his in-laws about the

unnatural death of his wife and he has also taken no recourse

before the police authority in lodging any case against unknown

miscreants or unnatural death of his wife. Prosecution has also

proved that the appellant was asking Rs.50,000/- as additional

dowry which could not be fulfilled by the informant and the

deceased was being mentally and physically tortured, assaulted

and put under starvation by the appellant. The accused has simply

denied his non-presence at the time of relevant occurrence. He has

neither proved his defence of alibi as mandated under Section 103

of the Indian Evidence Act nor he offered any explanation as to

under what circumstances his wife died unnatural death by

throttling. The learned Trial Court has very wisely and aptly taken

into consideration all the events and chain of circumstances in the

light of defence plea and arrived at right conclusion about the

guilt of the appellant. There is no illegality or infirmity in the

impugned judgment of conviction and sentence of the appellant

and no merits in this appeal which is fit to be dismissed.

Cr. Appeal (D.B.) No. 799 of 2018 P a g e 7 | 23

11. For better appreciation of the case before us, a brief resume of

prosecution evidence appears to be beneficial to arrive at right

conclusion.

12. Out of nine witnesses examined by prosecution, P.W.-3 Kesiya

Devi, P.W.-4 Mosmat Shanti Devi, P.W.-5 Sita Devi, P.W.-6

Madina Khatoon, P.W.-7 Dulari Devi who happens to be local

villagers of the accused, have been turned hostile. These witnesses

have admitted about the murder of the deceased in the house of

present appellant in the night of 13/14.03.2013 but expressed their

no knowledge as to who has committed the murder of the

deceased, rather above witnesses have claimed to see the dead

body of the deceased in her matrimonial home.

P.W.-3 Kesiya Devi has specifically stated that the incident is

of two years ago and in the evening of the date of occurrence, she

had seen accused Mustak Mian @ Butan at his home, thereafter,

she did not see the accused. What happened in the night, she does

not know. On the next day morning after hearing hallah in the

village, she went to the house of the accused Mustak Mian @

Butan and found his wife lying dead in the house on the bed.

The appellant has taken plea of alibi that he was not present

in the house on the date of occurrence, is falsified by the aforesaid

witness although turned hostile and the appellant has not cross-

Cr. Appeal (D.B.) No. 799 of 2018 P a g e 8 | 23 examined her to rebut above testimonies or other hostile witnesses

disputing or denying his presence at his home on the date of

occurrence.

13. The main witnesses of facts examined by prosecution are family

members of the deceased.

P.W.-1 Basir Ansari @ Ahmad is the uncle of deceased.

According to his evidence, the marriage of Gulshan Ara Khatoon

with the present appellant was solemnized in the year 2011. She

went to her sasural and lived quite well about six months.

Thereafter, she was being harassed and tortured on account of

non-fulfillment of additional demand of dowry by the present

appellant. He came to know from his brother Nuruddin Ansari

(informant) that the accused was asking money for purchasing

vehicle. About one or two days prior to occurrence, the accused

returned to his home thereafter, deceased informed through

telephonic call to her father that any untowards incident may

happen with her at the instance of her husband and just after two

days, Gulshan Ara Khatoon was murdered in her matrimonial

home. This witness has claimed to have seen the dead body of the

deceased at her matrimonial home which was lying on bed and

mouth was gagged with dupatta. There is nothing in his cross-

examination to rebut these aforesaid testimonies and no

suggestion has been extended by defence about his non-presence

at his home on the date of occurrence.

P.W.-2 Nuruddin Ansari is the informant and father of the

deceased. According to his evidence, just after six months of

marriage, his deceased daughter complained about ill-treatment

with her by her husband and he was demanding Rs.50,000/- He

came to know about murder of her daughter at her matrimonial

home and went there along with other family members and saw

the dead body of his daughter was lying on bed in half naked

condition. There was scratch marks on her neck and mouth was

gagged with dupatta.

In his cross-examination, he admits that the accused never

asked money from him nor assaulted the deceased in his presence

but above information was given by his daughter through

telephonic call. He has also admitted that Mustak Mian @ Butan

is a driver and used to come his home once in a week and on the

date of occurrence appellant was in his house. He also came to

know from the local villagers that in the evening, appellant was

present at his house. This witness has been simply suggested that

any other person has committed murder of the deceased and

accused is innocent but no cross-examination has been conducted

regarding presence of the accused at his house.

P.W.-9 Dr. R.S. Dangi has conducted autopsy of the dead

body of deceased on 14.03.2013 and found followings:

External Injury:-

Multiple bruises and scratch marks are present over the front and

sides of neck at the level of larynx and over it.

No Injury found inside the mouth.

Rigor mortis present both upper and lower limbs.

Internal Injury:-

Dissection of neck-Hemorrhage in the subcutaneous tissue and

muscle underlying the external injury.

Submucosal hemorrhage of the larynx and fracture laryngeal

cartilage found:

No injury found inside the mouth, tongue and inner aspect of lips.

Heart- Both chambers filled with blood and blood clots.

Both lungs are intact and congested, liver intact and congested,

spleen intact and congested, both kidneys intact and congested,

wall of stomach is normal and fill with approximately three ounce

of mucoid fluid, Urinary bladder is empty, no injury seen in

private part, hymen old torn, vaginal swab taken and send for

examination of spermatozoa.

As per laboratory report, no sperm was seen in the smear

provided.

Opinion about rape:-

Since hymen old torn no any injury seen over the private part and

no sperm material was found in the vaginal smear, definite

opinion about rape cannot be given.

Opinion about death:-

Death is due to asphyxia caused by throttling.

Time elapsed since death - 6 to 36 hrs.

The postmortem report is marked as Ext-7.

No material of any significance has been elicited in the cross-

examination of this case.

P.W.-8 S.I. Anand Kishore Prasad is the I.O. of this case.

According to his evidence, the fardbayan (Ext-2) of informant

Nuruddin Ansari on his dictation was recorded by him at Village

Sariya and accordingly formal F.I.R. (Ext-4) was registered. He

got prepared inquest report (Ext-5) of the deceased in presence of

witnesses. This witness has noticed, on the dead body some

scratches and reddish mark over the neck, mouth was gagged with

dupatta and lower part of the body was naked. Some wet

substance was found near the vagina; prima facie it appeared that

she was also ravished and dead body was found on bed in a room

in the house. One cup and country made liquor pouch was also

lying near. Above materials were seized and seizure list (Ext-6)

was prepared. He has further deposed that the place of occurrence

of this case is the pakka house of accused Mustak Mian @ Butan

situated in Village Sariya. There is 10 ft. X 10 ft. courtyard and

adjacent to the courtyard towards south, there are two rooms

constructed under Indira Awas and in the western side of room the

dead body was found lying on bed. During course of

investigation, he recorded the statement of witnesses, Majid Alam,

P.W.-3 Kesiya Devi, P.W.-1 Basir Ansari, Karamat Ansari, P.W.-4

Mosmat Shanti Devi, P.W.-6 Madina Khatoon, P.W.-5 Sita Devi,

P.W.-7 Dulari Devi etc. who have supported the prosecution case.

He also arrested the accused Mustak Mian @ Butan who

confessed his guilt finding sufficient evidence. He submitted

charge-sheet against the accused.

In his cross-examination, he has reiterated none of the

witnesses are eye witness of the occurrence. Prior to this

occurrence, no complaint was made by parents of deceased about

ill-treatment or torture meted with her.

14. From the facts proved by the prosecution following undisputed

facts may be deducted:-

(i) The appellant and deceased were married in the year 2011, it

was second marriage of the deceased.

(ii) Just after six months of the marriage, the appellant started

torturing for demand of Rs.50,000/- from his wife and

stopped her food and clothing and started assaulting and

torturing followed with frequent quarrel.

(iii) Just prior two days of the occurrence, the deceased gave a

distress call to her parent that any untowards incident may

happen with her at the instance of her husband who is

present with her.

(iv) Just within two days i.e. on 14.03.2013, the nephew of the

informant informed through telephonic message about

murder of deceased in her matrimonial home. The informant

P.W.-2 and other relatives went to matrimonial home of the

deceased found her dead body lying on bed. Lower part of

body was naked and some liquid was noticed near vagina,

there was scratches and nail marks over the neck. Mouth

was gagged with dupatta. There was also small pouch of

country made liquor and a cup indicating that the deceased

was murdered due to throttling or gagging her mouth and

she might have been raped.

(v) The postmortem report (Ext-7) of the deceased also shows

mark of injuries around the neck and cause of death due to

throttling within 6 to 36 hours.

(vi) The accused fled away from his house and on the arrival of

relatives of the deceased, he was not present in his house.

Rather he was arrested on 15.03.2013 at about 17:30 hours

in his Village Sariya.

15. In his statement under Section 313 of the Cr.P.C., the accused has

simply denied the aforesaid circumstances and there is a specific

defence that on the date of occurrence, he was not present in his

house rather he was elsewhere.

16. There is very stout argument on behalf of appellant that the

burden of proof of the guilt of accused lies on the shoulder of

prosecution, which never shifts upon the accused. The prosecution

cannot take advantage of the silence of accused or non-offering

any defence. In the instant case, the prosecution has miserably

failed to prove the foundational facts regarding inference of the

guilt of the appellant, hence, he cannot be convicted with the aid

of Section 106 of the Indian Evidence Act.

17. The Hon'ble Apex Court in catena of judgments has discussed

what constitutes a prima facie case (foundational facts) in the

context of Section 106 of the Indian Evidence Act. Referring to

the dictionary meaning of the latin term, the Supreme Court noted

that "prima facie" means 'at first sight' or 'based on first

impression'. The provision of Section 106 of the Indian Evidence

Act would apply to cases where the prosecution has successfully

proved facts from which a reasonable inference can be drawn

regarding the guilt of the accused.

18. In the case of Anees v. State Government of NCT, 2024 SC

Online SC 757. The Hon'ble Apex Court has elaborately

discussed the principles of law governing applicability of Section

106 of the Indian Evidence Act as under:-

"35. Section 106 of the Evidence Act reads as follows:

"106. Burden of proving fact especially within knowledge.-

When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

Illustration

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him."

36. Section 106 of the Evidence Act referred to above provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The word "especially" means facts that are pre-eminently or exceptionally within the knowledge of the accused. The ordinary rule that applies to the criminal trials that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the rule of facts embodied in Section 106 of the Evidence Act. Section 106 of the Evidence Act is an exception to Section 101 of the Evidence Act. Section 101 with its illustration (a) 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 the facts which are, "especially within the knowledge of the accused and which, he can prove without difficulty or inconvenience".

Cr. Appeal (D.B.) No. 799 of 2018 P a g e 16 | 23

37. In Shambhu Nath Mehra v. The State of Ajmer, AIR 1956 SC 404, this Court while considering the word "especially" employed in Section 106 of the Evidence Act speaking through Vivian Bose, J., observed as under:

"11. ... 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 & 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, AIR 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R. [1936] 3 All ER 36 AT P. 49 (B)."

38. The aforesaid decision of Shambhu Nath (supra) has been referred to and relied upon in Nagendra Sah v. State of Bihar, (2021) 10 SCC 725, wherein this Court 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.

23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused."

(Emphasis supplied)

Cr. Appeal (D.B.) No. 799 of 2018 P a g e 17 | 23

39. In Tulshiram Sahadu Suryawanshi v. State of Maharashtra, (2012) 10 SCC 373, this Court observed 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 [(2000) 8 SCC 382 : 2000 SCC (Cri) 1516] : (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. The State of Ajmer [AIR 1956 SC 404 : 1956 Cri LJ 794] the learned Judge has stated the legal principle thus:

'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

Cr. Appeal (D.B.) No. 799 of 2018 P a g e 18 | 23 or inconvenience.

The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge.'""

(Emphasis supplied)

40. In Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681, this Court was considering a similar case of homicidal death in the confines of the house. The following observations made therein are considered relevant in the facts of the present case:

"14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions [[1944] A.C. 315 : [1944] 2 All ER 13 (HL)] - quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh [(2003) 11 SCC 271 : 2004 SCC (Cri) 135].) 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:"

19. In the instant case as discussed herein above, the foundational

facts proved by the prosecution as could be within its capacity

Cr. Appeal (D.B.) No. 799 of 2018 P a g e 19 | 23 reveals that there was tense relationship between appellant and his

wife due to demand of some money or otherwise matrimonial

discard or dispute which was communicated by deceased to her

parents but due to their inability no effective steps were taken.

Just prior to the date of occurrence, the deceased informed

through telephonic message that any untowards incident might

happen with her at the hands of her husband and just next day, the

information about murder of deceased was communicated through

niece of the informant. The presence of the appellant at his house

on the fateful day is stated by the local villager (P.W.-3 in her

evidence) and other villagers have also seen the dead body of

deceased wife in the house of the present appellant. The death was

caused due to throttling. Just from the morning, when people and

local villagers assembled at the house of the appellant, he was

absconding from his house, which also shows his conduct

influenced by fact in issue. The dead body after conducting

inquest report was sent for post-mortem examination, thereafter,

present appellant arrived to his house and was arrested by police.

In the course of investigation, the statement of present petitioner

was recorded wherein he has also not denied his presence on the

fateful date of occurrence in his house and has failed to express

any enmity with any other person, who might have caused death

of the deceased in his house. The above clinching circumstances

are sufficient to reasonably infer that the appellant is the author of

the murder of his wife. In the rebuttal, the appellant has simply

denied his presence at his house but failed to offer any explanation

as to where he was on the fateful day when his wife died

unnatural death. He has also not informed the incident to police or

any other local villager as to under what circumstances his wife

died inside the four walls of the room of his house. In the

aforementioned circumstances, if the strict principle of

circumstantial evidence is insisted upon by the courts, it would be

extremely be difficult for the prosecution to lead evidence to

establish the guilt of the accused. Here, it is also pertinent to

observe that if the appellant was outside in connection with his

duty, he must come with fair submissions as to where he had gone

and what duty he was discharging on the fateful date of

occurrence. How he came to know about murder of his wife and

returned to home. He has also not expressed any suspicion against

any person who might have caused the murder of the deceased.

The plea of alibi is also required to be proved by the accused

through evidence as mandated by Section 103 of the Indian

Evidence Act which reads as follows:-

Cr. Appeal (D.B.) No. 799 of 2018 P a g e 21 | 23 "103. Burden of proof as to particular fact. - The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

Illustrations [(a)] ....

(b) B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it."

The Court has to presume absence of circumstances favouring the

accused unless it is proved.

20. In the instant case, we have given anxious consideration to overall

aspects of the case and the foundational facts proved by the

prosecution leading to inference of guilt of the appellant. No more

facts may be insisted upon to be proved by the prosecution for

drawing such inference. If such insistence is strictly adhered to,

the same will lead to failure of justice. The non-fulfillment of any

reasonable explanation to the foundational facts and the specific

plea of defence by the accused adds an additional link in the chain