CRLA/203/2015
2021 Latest Caselaw 1037 Ori

CRLA No.203 of 2015

Misc. Case No.1033 of 2017

15. 29.01.2021 Matter is taken up by Video Conferencing Mode.

Heard Mr. R.K. Pattanaik, learned counsel for the sole appellant-Laxman Mahanta. We have also heard Mrs. S. Pattanaik, learned Addl. Government Advocate.

This is an application under Section 389 of the Cr.P.C. filed by the aforesaid appellant for suspension of sentence and grant of bail upon appeal.

The appellant has been convicted for the commission of offence under Sections 302, 304-B, 498-A of the IPC read with Section 4 of the Dowry Prohibition Act and sentenced to undergo imprisonment for life for the offence under Section 302 of the IPC and pay a fine of Rs.10,000/-, in default to undergo imprisonment for one year. He has been sentenced to undergo imprisonment for seven years and to pay fine of Rs.5,000/- in default to undergo imprisonment for six months for the offence under Section 304-B read with Section 498-A of the IPC and also undergo imprisonment for two months for the offence under Section 4 of the D.P. Act.

In course of hearing, the learned counsel for the appellant submits that the case is undoubtedly based on circumstantial evidence and the circumstances in this case are not complete as far as the offence under Section 302 of the IPC is concerned. He further submits that the offence under Section 304-B of the IPC is not also made out as there is no material on record that soon before the unnatural death of deceased, which allegedly took place within seven years of her marriage to the appellant, she was subjected to torture because of a demand of

dowry.

Mrs. S. Pattanaik, learned Addl. Government Advocate, on the other hand, submits that though there is no specific evidence on record to show that in fact on the previous night of the incident, the deceased and the appellant were inside their bed room, but it is incumbent on the part of the appellant to explain how his wife died. In other words, inference under Section 106 of the Indian Evidence Act would be attracted. She further submits that as the appellant is the husband of the deceased, it is his duty to take care of the deceased and in case where the deceased has died under any suspicious circumstances, it is duty of the defence to explain the death, so that he can be held not guilty. She further submits that this is a matter of bail not a final hearing of the appeal and she is objecting to grant of bail.

Section 106 of the Indian 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. Illustrations :-

(a) When a person does not 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.

A plain reading of this provision along with the illustrations leaves no doubt in the mind of the Court that if a person has knowledge about any particular fact, then the burden of proving that fact is upon him. It is settled principles

of law that the criminal justice system is administered in our country. The prosecution must establish the burden that lies heavily upon it. Only, when it is seen that there are certain facts, which are exclusively in the knowledge of the accused, the onus rests on him to establish that particular fact. As admitted by the learned Addl. Government Advocate that there is no evidence in this case that prior to the incident, in the previous night, the appellant and the deceased stayed together in the bed room to the exclusion of any other person in that room.

This principle of law was considered by the Hon'ble Supreme Court in the case of Reena Hazarika vs. State of Assam, AIR 2018 SC 5361. At paragraph-8 of the judgment, the Hon'ble Supreme Court held that the essential of circumstantial evidence stands well established by the precedent and the Supreme Court do not consider it necessary to reiterate the same and burden the order unnecessarily. Suffice it to observe that in a case of circumstantial evidence the prosecution is required to establish the continuity of the link of the chain of circumstances, so as to lead the only and inescapable conclusion of the accused being the assailant, inconsistent or incompatible with the possibility of any other hypothesis compatible with the innocence of the accused. Mere invocation of the last seen theory, sans the facts and evidence in a case, will not suffice to shift the onus of the accused under Section 106 of the Evidence Act, 1872 unless the prosecution first establishes a prima facie case. If the link in the chain of circumstances itself is not complete, and the prosecution is unable to establish a prima facie case, leaving open the

possibility that occurrence may have taken place in some other manner, the onus will not shift to the accused, and the benefit of doubt will have to be given.

The other grievous offence in which the appellant has been convicted is under Section 304-B of the IPC.

Careful examination of the impugned judgment leaves no doubt in the mind of the Court that there is no evidence worth regarding the ingredient to establish that soon before the death, she was subjected to mental or physical torture for a demand of dowry. So, in the considered opinion of this Court, there is very good possibility of the appeal being allowed. Moreover, the petitioner happens to be a permanent resident of Manitira, P.S. Sukinda, Dist. Jajpur. Hence, there is no reasonable apprehension of his absconding from the process of justice.

In the result, the application for bail is allowed. The sentence imposed on the appellant is hereby suspended.

Let the appellant-Laxman Mahanta be released on bail by the learned Addl. Sessions judge, Jajpur in C.T. No.126 of 2009 on such terms and conditions as deemed just and proper by the learned Judge.

The fine amount, as directed by the learned Addl. Sessions Judge in C.T. Case No.126 of 2009 shall remain stayed till disposal of the Appeal.

S.K. Mishra (Judge)

This is the successive application filed under Section 389 of the Cr.P.C. by the appellant-petitioner-Laxman Mahanta to release him on bail during pendency of the appeal.

While praying for release of the appellant- petitioner on bail, the learned counsel states that the conviction is based on circumstantial evidence and the chain of circumstances is not complete and the appellant is in custody for more than five years.

His earlier bail application had been rejected in Misc. Case No.532 of 2015 vide order dated 21.07.2015. The reasons for rejection are as follows:

" Looking to the internal injuries sustained by the deceased, as described in paragraph 7 at page 5 of the impugned judgment, which the appellant-husband is unable to explain, we are not inclined to grant bail to the appellant.

The bail prayer is accordingly rejected and the Misc. Case is dismissed."

At paragraph-7 of the impugned judgment, the learned trial court has discussed the evidence of doctor, P.W.13, who along with another doctor, namely, Niranjan Swain jointly conducted post mortem examination on the dead body of the deceased. He found swelling of neck on the right side having sub-tutanuous, emphysema of neck with ecchymosis on the right side of the neck. He also found one abrasion of 1 c.m. diameter on the right side of the neck having no ligature mark. On dissection of the neck, he found haemorrhage sub-tutaneous tissue with air bubbbles and abrasions of few muscles on the right side of the neck and there was lacerated injury on larynx and upper part of trachea with full of blood. He opined that the cause of death was due to asphyxia caused by blunt trauma on the neck. On further dissection, he found internal organs intact and opined that the injuries were ante mortem in nature. He

has stated that such injuries on the neck cause death in ordinary course of nature, and there was no symptom of any malaria fever on the dead body. During re-examination, P.W.13 the doctor has proved Ext.9, his response to the query regarding cause of death.

The learned trial court has discussed the cause of death in paragraphs 12 and 14 of the judgment and come to a conclusion that it is a homicidal death. The consistent evidence of the relations of the deceased, namely, P.W.3-Purna Chandra Mahanta, P.W.4-Hemalata Mahanta, P.W.5- Ramesh Chandra Mahanta, P.W.6- Kalandi Mahanta, P.W.7-Susila Mahanta and P.W.10-Baidyanath Mahanta as well as P.W.8-Bauribandhu Pradhan, an independent witness is that the deceased was being harassed and tortured on account of demand of dowry.

The circumstances against the accused are as follows :

i) there is allegation of demand of dowry and harassment and torture of the deceased by the accused appellant on account of non payment .

ii) the doctor has stated about blunt trauma on side of the neck being the cause of death.

iii) prosecution witnesses have stated that the dead body of the deceased was found lying in a cot in the matrimonial house

iv) the appellant-accused who is the husband of the deceased has not given any plausible explanation as regards the injuries found on the deceased or cause of her death.

v) he has given a false explanation that she died due to malaria.

The Hon'ble Supreme Court in a catena of cases has held that crimes relating to the wife are generally committed in

complete secrecy inside the house and it becomes difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in Court as they want to keep aloof and do not want to antagonize a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the house should go unpunished.

In the case of Trimukh Maroti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681, the Hon'ble Apex Court at paragraphs 12, 13, 14 and 15, has held as follows:

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

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

14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such

evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:

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

15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."

The aforesaid case has again been relied upon by the Hon'ble Supreme Court in the case of Jayantilal Verma vs State Of M.P. (Now Chhattisgarh), 2020 SC Online SC 944, where it has been held, at paragraphs 9 & 10, as follows:

" 9. The High Court in the given situation, apart from relying on the testimony of PW-1, turned its attention to the postmortem report. In this context, it was noted that there was

blood oozing from both nostrils and mouth of the deceased, there was swelling over the right cheek, marks of ecchymosis at epiglottis region and back of the neck, bruise present at left axillary of cheek and there was depression mark of a mala on the left side of the neck. It went on to state that since the incident had taken place inside the privacy of the house, the onus was on the persons residing in the house, to give an explanation. In such situations, it was noted that it is difficult for the prosecution to lead any direct evidence to establish the guilt of the accused. In this regard, the High Court referred to Section 106 of the Indian Evidence Act, 1872, which reads as under:

"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."

10. It, thus, opined that in such cases, while the initial burden to establish the case would be upon the prosecution, it would be of a relatively light character. There would be a corresponding a burden on the inmates of the house to give cogent explanation as to how the crime was committed. They could not get away by keeping quiet and offering no explanation."

In the present case, the appellant had stated in the statement under Section 313 of the Cr.P.C. that his wife had died due to disease suffering from malaria fever, which developed to jaundice and he had taken her to hospital. But, the P.W.13, the doctor, in his evidence, has categorically stated that death was not due to malaria.

The Hon'ble Supreme Court in the case of Trimukh Maroti Kirkan vs. State of Maharashtra, (supra ) has held

that in case a false plea is taken that provides an additional link. The Hon'ble Apex Court, at paragraph-22 of the aforesaid case, has held as follows:-

" 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 xxx."

In view of the circumstances referred to above, which prima facie point to the complicity of the appellant petitioner, who is the husband of the deceased, the position of law as laid down by the Hon'ble Apex Court regarding standard of proof in cases of death of a wife in her matrimonial home and the rejection of the earlier prayer for bail, I do not consider this to be a fit case to release the appellant-petitioner on bail at this stage.

Hence, the Misc. Case is dismissed.

Savitri Ratho (Judge)

Misc. Case No.1033 of 2017

16. 29.01.2021 Since there is a difference of opinion of the two judges of the Court, the matter may be placed before the Hon'ble

Chief Justice for appropriate order to refer the case to a 3rd Judge to resolve the issue.

S.K. Mishra (Judge)

Savitri Ratho (Judge)

PCD