Orissa High Court

Rendo @ Karamsingh Munda vs State Of Odisha on 11 August, 2022

                     IN THE HIGH COURT OF ORISSA, CUTTACK

                                       JCRLA No. 73 of 2019

        From judgment and order dated 29.06.2019 passed by the
        Sessions Judge, Keonjhar in Sessions Trial No.106 of 2017.
                              ---------------------------

Rendo @ Karamsingh Munda ....... Appellant

-Versus-

               State of Odisha                              .......                     Respondent


                      For Appellant:                        -            Mr. Chitta Ranjan Sahu
                                                                         Advocate


                      For Respondent:                       -            Mr.Arupananda Das
                                                                         Addl. Govt. Advocate
                                           ---------------------------

        P R E S E N T:

                          THE HONOURABLE MR. JUSTICE S.K. SAHOO

---------------------------------------------------------------------------------------------------

Date of Hearing and Judgment: 11.08.2022

---------------------------------------------------------------------------------------------------

S.K. SAHOO, J. The appellant Rendo @ Karamsingh Munda faced trial

in the Court of learned Sessions Judge, Keonjhar in Sessions

Trial No.106 of 2017 for commission of offences punishable

under sections 498-A, 302 and 201 of the Indian Penal Code

(hereafter 'I.P.C.') on the accusation that he being the husband

of Tiki @ Tikili Munda (hereafter 'the deceased') subjected her to // 2 //

torture both physically and mentally, committed her murder on

28.04.2017 night and tied the saree of the deceased around her

neck and hanged her from the roof beam of the room with an

intention of screening himself from the legal punishment.

The learned trial Court vide impugned judgment and

order dated 29.06.2019, though acquitted the appellant of the

charges under sections 498-A and 302 of the I.P.C., but found

him guilty under sections 304 Part-I and 201 of I.P.C. and

sentenced him to undergo R.I. for ten years and to pay a fine of

Rs.5000/- (rupees five thousand), in default, to undergo further

R.I. for six months for the offence under section 304 Part-I of

the I.P.C. and R.I. for two years and to pay a fine of Rs.2,000/-

(rupees two thousand), in default, to undergo further R.I. for two

months for the offence under section 201 of the I.P.C. and both

the substantive sentences were directed to run concurrently.

2. The prosecution case, as per the first information

report (Ext.1) lodged by one Guru Charan Munda (P.W.1), the

father of the deceased on 29.04.2017 is that four years prior to

the date of occurrence, the deceased married to the appellant

and it was a love marriage and out of their wedlock, a male child

was born, who was aged about three years at the time of

occurrence. It is stated that after the marriage, the appellant

// 3 //

subjected the deceased to physical and mental torture and the

deceased used to intimate the informant about the same. It is

further stated that few days prior to her death, the deceased was

assaulted by the appellant for which she came to reside in her

uncle's house. On 29.04.2017 at about 9.00 a.m., the appellant

communicated to the informant (P.W.1) about the death of the

deceased and the family members of the deceased immediately

rushed to the house of the appellant and found the deceased

lying dead on the floor of her bed room. When P.W.1 confronted

to the appellant as to why he killed the deceased, the appellant

disclosed that on the previous night, there was a quarrel with the

deceased and he assaulted her with a lathi on her head for which

she died and then he tied the saree around the neck of the

deceased. The informant found bloodstains on the floor of the

house and accordingly, he lodged F.I.R. before the Inspector in-

charge of Keonjhar Sadar police station on 29.04.2017, pursuant

to which Keonjhar Sadar P.S. Case No.132 of 2017 was

registered under sections 498-A, 302 and 201 of the I.P.C.

against the appellant.

3. The Inspector in-charge of Keonjhar Sadar Police

Station entrusted P.W.11 Srikanta Sahoo, Sub-Inspector of

Police attached to the said police station for investigation. During

// 4 //

investigation of the case, the I.O. visited the spot, prepared the

spot map (Ext.8), issued requisition to the S.D.M. -cum-

Executive Magistrate, Keonjhar to depute one Executive

Magistrate to the spot and accordingly, in the presence of the

Executive Magistrate, he conducted inquest over the dead body

and prepared the inquest report (Ext.2). The dead body was sent

for post mortem examination and P.W.8 Dr. Ajaya Kumar

Mohanty conducted post mortem examination over the dead

body on 29.04.2017 and submitted his report (Ext.6).

The I.O. (P.W.11) during the spot visit, collected the

sample earth and blood stained earth under seizure list Ext.3 and

after the appellant was taken into judicial custody, on the basis

of his statement recorded under section 27 of the Evidence Act,

one bamboo lathi was seized as per the seizure list Ext.4. The

wearing apparels of the appellant were seized under seizure list

Ext.10 so also the wearing apparels and the biological samples of

the deceased collected by the medical officer and produced by

the constable, which were seized under seizure list Ext.11. The

I.O. sought for opinion of the medical officer relating to the

possibility of the injuries noticed on the deceased by the bamboo

lathi and saree of the deceased and he received the query report

(Ext.7/1). The material objects were sent to S.F.S.L., Rasulgarh,

// 5 //

Bhubaneswar through the learned S.D.J.M., Keonjhar for

chemical examination and report and on completion of

investigation, P.W.11 submitted charge sheet against the

appellant under sections 498-A, 302 and 201 of the Indian Penal

Code on 20.07.2017.

After submission of charge sheet, the case was

committed to the Court of Session where the learned trial Court

framed charges against the appellant and since the appellant

refuted the charges, pleaded not guilty and claimed to be tried,

the sessions trial procedure was resorted to prosecute him and

establish his guilt.

4. The defence plea of the appellant is one of denial.

5. During course of trial, in order to prove its case, the

prosecution has examined as many as eleven witnesses.

P.W.1 Guru Charan Munda, is the informant of the

case and father of the deceased and he stated that on being

informed by the appellant regarding the death of the deceased,

he along with his wife and other relatives had been to the house

of the appellant, where they saw injury on the head of the

deceased and on being asked by him to the appellant, the latter

stated before them that he caused the death of the deceased by

// 6 //

physically assaulting her. He proved the F.I.R. (Ext.1). He is also

a witness to the inquest report Ext.2.

P.W.2 is the mother of the deceased, who also

accompanied P.W.1 to the house of the appellant on receiving

the death news of the deceased and stated that she saw the

injury on the head of the deceased and her dead body was lying

on the floor of the house and a saree was tied around her neck

and since the appellant had already gone to the police station,

they could not ask him about the death of the deceased and she

further stated that when they arrived at the house of the

appellant, he was absent there.

P.W.3 Santosh Kumar Mohanta, who is a co-villager

of P.W.1, stated that on being called by the police, he had been

to the house of the appellant on the date of occurrence and he

saw the deceased lying on the floor of her bedroom and a portion

of saree was tied around her neck and the other portion of the

same saree was thrown on the roof beam of her bedroom. He is

a witness to the inquest report Ext.2.

P.W.4 Rabindra Munda, who is a co-villager of P.W.1,

is a witness to the seizure of some sample earth and blood

stained earth collected from the spot as per seizure list Ext.3

// 7 //

P.W.5 Manik Kumar Munda is a co-villager of P.W.1,

who accompanied P.W.1 to the house of the appellant on getting

the death news of the deceased and stated the same thing as

that of P.W.2. He is a witness to the seizure of some sample

earth and blood stained earth collected from the spot as per

seizure list Ext.3.

P.W.6 Madhusudhan Mahanta, who is known to the

appellant and the deceased, stated that in his presence as well

as in presence of others, the appellant confessed before the I.O.

to have killed his deceased wife by means of a lathi and

concealed the said lathi in a 'huda' (i.e. embankment of the

pond) and the lathi being produced by the appellant, the same

was seized and he is a witness to such seizure as per seizure list

Ext.4 and the statement of the appellant was recorded in his

presence after the lathi was recovered as per Ext.5.

P.W.7 Rashmi Munda, who is the sister in-law of

P.W.1 (being younger brother's wife), accompanied P.W.1 and

P.W.2 on receiving the death news of the deceased. She stated

that there was mark of violence on her back and there was

bleeding from her head and on query being made to the

appellant, he disclosed before them that in the preceding night,

he demanded food from the deceased and when the same was

// 8 //

not served, he inflicted a blow to the deceased by means of a

bamboo stick, as a result of which she fell down on the ground

and did not respond.

P.W.8 Dr. Ajaya Kumar Mohanty was working as

Pediatric Specialist in D.H.H. Keonjhar, who conducted the post

mortem over the dead body of the deceased and proved the

report as per Ext. 6. He also proved the requisition of the I.O. on

the query dated 06.06.2017 as per Ext.7 with the production of

bamboo0 lathi (M.O.I) and saree (M.O.II) and his report as per

Ext.7/1.

P.W.9 Jyoti Munda, who is the aunt of the deceased

(husband's sister's daughter) stated that on getting information

about the serious health condition of the deceased, she had been

to the house of the appellant and stated in the same manner as

that of P.Ws.1 and 2. She is also a witness to the inquest report

as per Ext.2.

P.W.10 Mangat Singh Purty, who is a neighbour of

the appellant, did not support the prosecution case, for which he

was turned hostile.

P.W.11 Srikanta Sahoo was the Investigating Officer

of the case, who submitted charge sheet.

// 9 //

The prosecution exhibited fourteen numbers of

documents. Ext.1 is the F.I.R., Ext.2 is the inquest report, Ext.3

is the seizure list of sample earth and blood stained earth, Ext.4

is the seizure list relating to recovery of bamboo lathi at the

instance of the appellant, Ext.5 is the statement of the appellant

recorded under section 27 of the Evidence Act, Ext.6 is the post

mortem examination report, Ext.7 is the requisition of the I.O. to

the medical officer seeking opinion on production of bamboo

stick and the saree, Ext.8 is the spot map, Ext.9 is the dead

body chalan, Ext.10 is the seizure list in respect of the wearing

apparels of the appellant, Ext.11 is the seizure list in respect of

the wearing apparels and biological samples of the deceased

being produced by the medical officer, Ext.12 is the seizure list

of the biological samples of the appellant, Ext.13 is the

forwarding report of the exhibits by the learned S.D.J.M.,

Keonjhar to the S.F.S.L., Rasulgarh for chemical examination

and Ext.14 is the chemical examination report.

The prosecution examined five material objects.

M.O.I is the bamboo lathi, M.O.II is the saree of the deceased,

M.O.III is the pink colour saya of the deceased, M.O.IV is the

black colour blouse of the deceased and M.O.V is the wearing

// 10 //

apparels of the appellant including a black colour trouser and one

white T-shirt, one maroon and white check napkin.

6. The learned trial Court after assessing the evidence

on record came to hold that there is no evidence to corroborate

the facts alleged in the F.I.R. to constitute the offence under

section 498-A of I.P.C. and accordingly, held the appellant not

guilty under such offence. Learned trial Court further found that

it is clearly established that the deceased was found lying dead

in her bed room with injuries on her person particularly on the

head and there was also bleeding when the witnesses found her

lying and it is also clear from the evidence that a portion of the

saree was tied round her neck, whereas the other portion of the

saree was tied on the roof beam of the said house. After

accepting the evidence of the doctor, who conducted the post

mortem examination, it was held that the deceased died a

homicidal death. Learned trial Court also accepted the extra

judicial confession of the appellant and held that it has come out

of the evidence on record that the appellant not only confessed

his guilt before the family members of the deceased such as

P.Ws.1 and 7, but also before the co-villagers, namely, P.Ws.6

and 10. It was further held that in the night of occurrence, the

appellant and the deceased were together in the house and on

// 11 //

the following morning, the deceased was found lying dead on the

floor with bleeding injuries and a portion of the saree was tied on

the neck of the deceased while the other portion of the saree

was tied on the roof beam of the house and the appellant has

not given any explanation as to the cause of death of the

deceased or the circumstances under which she met her death

while staying in the same room. It was also further held that the

facts so established by the witnesses are consistent with the

hypothesis of the guilt of the appellant and no inference can be

drawn that he is innocent and some others were involved in the

alleged crime and as such, there was no reasonable ground for

presuming that the appellant was innocent, rather in all

probabilities, it can be concluded that he is the author of the

crime. Learned trial Court has also held that the appellant

committed the offence under grave and sudden provocation

without any premeditation and in the heat of passion, the

appellant assaulted his wife causing her death and the evidence

on record does not make out a case under section 302 of I.P.C.

rather it is a case under section 304 Part-I of I.P.C. The learned

trial Court further held that the appellant concealed the evidence

of killing the deceased and the weapon of assault, i.e. the

bamboo lathi was seized on the embankment of the village pond,

// 12 //

which was recovered at the instance of the appellant by the I.O.

and therefore, it was held that the appellant is guilty under

section 201 of I.P.C.

7. Mr. Chitta Ranjan Sahu, learned counsel appearing

for the appellant contended that there are no eye witnesses to

the occurrence and the case is based on the circumstantial

evidence and the circumstances are not clinching. He further

submitted that the circumstances taken together do not form a

complete chain so as to unerringly arrive at the guilt of the

appellant. It is further submitted that the materials available on

record indicate that the marriage between the appellant and the

deceased was a love marriage and they were blessed with a son,

who was aged about three years at the time of occurrence and

there is absolutely no material on record that at any point of

time, the appellant subjected the deceased to physical and

mental torture for which the appellant was acquitted of the

charge under section 498-A of I.P.C. It is argued that though

some witnesses have stated about the extra judicial confession

of the appellant before them, but the same is not acceptable as

there are evidences on record to show that such confession was

made in the presence of police officials and moreover, the

learned trial Court should not have placed reliance on the

// 13 //

evidence of the close relatives of the deceased as they are

interested witnesses. Learned counsel further submitted that

there is absence of materials to show that the appellant was

present with the deceased in the occurrence night in the spot

room and there were other family members residing in the house

and if the evidence of extra judicial confession is taken out of

consideration, then there is no material to come to a conclusion

that the appellant is the author of the crime and therefore, it is a

fit case where benefit of doubt should be extended in favour of

the appellant.

Mr. Arupananda Das, learned Additional Government

Advocate appearing for the State, on the other hand, supported

the impugned judgment and submitted that when the witnesses

have stated that on getting information from the appellant that

the deceased committed suicide, they arrived at the scene of

occurrence and found the appellant was present there and the

deceased was lying dead on the floor of the house with bleeding

injuries on the head and the doctor has opined the death to be

homicidal in nature, it was for the appellant to explain as to

under what circumstances, the deceased met with a homicidal

death and since the appellant has failed to discharge the burden,

which was cast on him in view of the provision under section 106

// 14 //

of the Evidence Act, the learned trial Court was quite justified in

holding that it is the appellant and none else to be the author of

the crime. It is contended by the learned counsel for the State

that the weapon of offence, i.e. lathi was seized at the instance

of the appellant on the basis of his statement recorded under

section 27 of the Evidence Act and the appellant has tried to give

the homicidal death of the deceased as a colour of suicidal

hanging and that is why after assaulting the deceased with the

bamboo lathi (M.O.I), he tied one end of the saree on the neck

of the deceased and the other end in the roof beam of the house

and therefore, there is no illegality or impropriety in the

judgment of the learned trial Court in convicting the appellant

under section 304 Part-I of I.P.C so also under section 201 of

I.P.C.

Whether the deceased met a homicidal death:

8. Coming to the evidence regarding the nature of

death of the deceased, it appears from the evidence of the

doctor (P.W.8) that he conducted post mortem examination over

the dead body on 29.04.2017 and he detected the following

external injuries on the person of the deceased, i.e. (i)

haematoma of 4 cm diameter over occipital areas of the scalp,

reddish brown in colour and (ii) one curvilinear ligature mark on

// 15 //

the neck of size 1.5 cm in breadth and 22 cm in length on the

front of neck and the doctor opined that the cause of death was

due to asphyxia resulting from mechanical pressure (constricting

force) along with injuries to vital organs like brain which is

homicidal in nature. P.W.8 examined the bamboo lathi (M.O.I) as

well as the saree (M.O.II), which was sent by the I.O. and he

opined that the injuries detected on the person of the deceased

over the head of the deceased could have been caused by the

bamboo lathi and further stated that the ligature mark around

the neck of the deceased can be possible by use of saree. The

post mortem examination report has been marked as Ext.6 and

the query report has been marked as Ext.7/1 and nothing has

been elicited in the cross-examination to discard such evidence

of the doctor. Learned counsel for the appellant has also not

challenged the same. In view of the inquest report and the post

mortem examination report, I am of the humble view that the

learned trial Court has come to a right conclusion that the

deceased met with a homicidal death.

Whether the evidence of the close relatives of the deceased is to be discarded:

9. Learned counsel for the appellant contended that the

learned trial Court should not have relied upon the evidence of

// 16 //

the close relatives of the deceased such as P.W.1., P.W.2, P.W.7

and P.W.9. This Court in the case of Pradip Sahoo -Vrs.- State

of Orissa reported in (2015) 61 Orissa Criminal Reports

289 has held that related witnesses are not necessarily false

witnesses. Unless their evidence suffers from serious infirmity or

raises considerable doubt in the mind of the Court, it would not

be proper to discard their evidence straightaway. 'Related' is not

equivalent to 'interested'. A witness may be called 'interested'

only when he or she derives some benefits from the result of

litigation. Close relatives of the deceased are most reluctant to

spare the real culprit and falsely mention the names of other

persons. The close relationship of the witnesses to the deceased

is no ground for not acting upon their testimony. If the evidence

is otherwise found to be reliable after close scrutiny, it can be

acted upon.

Thus, I am not able to accept the contention of the

learned counsel for the appellant to discard the evidence of

P.W.1., P.W.2, P.W.7 and P.W.9 on the ground of their

relationship with the deceased.

Whether the chain of circumstances is complete:

10. The evidence of the informant (P.W.1) indicates that

the deceased and the appellant fell in love with each other while

// 17 //

they were working together in a construction company at Talcher

and no traditional form of marriage was held between them and

after return from Talcher, the deceased continued to stay with

the appellant as his wife. P.W.1 further stated that he was

informed about the death of the deceased over phone and he

along with his wife (P.W.2) and other relatives proceeded to the

house of the appellant, where they saw injuries on the head of

the deceased and when he asked the appellant about the cause

of death, he told that he caused the death of the deceased by

physically assaulting her.

At this juncture, if the evidence of P.W.2 is analysed,

it appears that she has also stated that when she along with her

husband (P.W.1) and other relatives came to the house of the

appellant, they saw the dead body of the deceased lying on the

floor of the house and a saree was tied around her neck, but the

appellant had already gone to the police station and therefore,

they could not ask him about the cause of death of the deceased.

She has further stated that when they arrived at the house of

the appellant, he was absent. Thus, the extra judicial confession

of the appellant, which is stated to by P.W.1 is absent in the

evidence of P.W.2 even though both of them arrived at the

house of the appellant together on receiving the death news. In

// 18 //

the absence of any corroboration to the evidence of P.W.1 by

P.W.2, the extra judicial confessional part is not acceptable.

P.W.2 has stated that prior to the incident, the

deceased had told before them that the appellant was insisting

her to bring a motor cycle from her father and they did not give

any motor cycle. P.W.1 has not stated any such thing regarding

demand of the appellant in his statement before the Court,

rather, he has stated about the love marriage of the deceased

with the appellant and therefore, this part of the evidence of

P.W.2 regarding demand of motor cycle is not acceptable. P.W.3

has stated to have noticed the dead body of the deceased lying

on the floor of her bed room and he had seen a portion of the

saree being tied around her neck and the other portion of the

same saree was tied on the roof beam of her bed room.

P.W.4 has stated in the similar manner like P.W.3

about the dead body of the deceased lying on the floor of the

house and the floor was blood stained. He further stated that the

police seized some sample earth and blood stained earth as per

seizure list Ext.3 and this witness has been declared hostile by

the prosecution. P.W.5 has stated like P.Ws.3 and 4 regarding

the dead body of the deceased lying on the floor of the house

// 19 //

and a saree was tied around her neck and he is also a witness to

the seizure of sample earth and blood stained earth.

P.W.9 has stated that he found the deceased lying on

the floor of the house with bleeding injuries and there was mark

of assault on her person and a saree was tied around her neck.

The inquest was conducted in presence of the

Executive Magistrate and the inquest report vide Ext.2 was

prepared and in the inquest report, it is also mentioned that one

portion of the saree was tied around the neck of the deceased

and the other portion of the saree was tied to the roof beam of

the house. The evidence of the witnesses as referred to above

coupled with the inquest report makes it very clear that the dead

body of the deceased was lying in her bed room and there was

mark of assault on her body and there was blood stains on the

floor of the bed room and one saree was tied around her neck

and the other portion of the saree was tied to the roof beam of

the house.

P.W.7 though stated that the appellant made extra

judicial confession before her that in the preceding night, he

demanded food from the deceased and when the same was not

served, he inflicted a blow by means of a bamboo lathi, as a

result, she fell down and did not respond, but in the cross-

// 20 //

examination, it has been elicited that the appellant was in the

police outpost when he was asked about the cause of death to

which he narrated the incident. Therefore, this evidence of extra

judicial confession is not acceptable.

Even if the extra judicial confession of the appellant

is taken out of consideration and that the prosecution has not

adduced any clinching evidence that there was any demand of

dowry or any physical or mental torture on the deceased by the

appellant, but the fact remains that the deceased along with the

appellant was staying together and the spot room was their bed

room where her dead body was found and there were marks of

injuries not only on the head but also around her neck and there

were blood stains on the floor of the bed room. The doctor, who

conducted the post mortem examination, has categorically stated

that it was a homicidal death. Though the appellant was asked

about each of the circumstances appearing against him in the

accused statement, but he has taken a plea of denial.

Section 106 of the Evidence Act states that when any

fact is especially within the knowledge of any person, the burden

of proving that fact is upon him. When the husband (appellant)

and wife (deceased) were together in their bed room in the night

and the deceased was found dead with injuries over her head

// 21 //

and neck in the morning, it was for the appellant to explain it

away as to under what circumstances, the deceased died.

In case of Ajitsingh Harnamsingh Gujral -Vrs.-

State of Maharashtra A.I.R 2011 Supreme Court 3690, it is

held as follows:-

"29. The evidences of PW.3, PW 4 and PW 5, which we see no reason to disbelieve, thus fully establish that the Appellant was last seen with his wife at about midnight and was in fact quarrelling with her at that time.

30. The incident happened at 4 or 4.30 a.m. and hence there was a time gap of only about 4 hours from the time when the Appellant was seen with his wife (deceased) and the time of the incident. Thus he was last seen with his wife and there was only a short interval between this and the fire.

31. The last seen theory comes into play where the time gap between the point of time when the accused and deceased were last seen alive and when the deceased is found dead is so small that the possibility of any person other than the accused being the author of the crime becomes impossible, vide Mohd. Azad alias Samin v. State of West Bengal 2008 (15) SCC 449 and State through Central Bureau of Investigation v. Mahender Singh Dahiya 2011 (3) SCC 109, Sk.

Yusuf v. State of West Bengal JT 2011 (6) SC 640 .

32. In our opinion, since the accused was last seen with his wife and the fire broke out about 4 hours thereafter it was for him to properly explain how this incident happened, which he has not done. Hence this is one of the strong links in the chain connecting the accused with the crime.

// 22 //

33. The victims died in the house of the accused, and he was there according to the testimony of the above witnesses. The incident took place at a time when there was no outsider or stranger who would have ordinarily entered the house of the accused without resistance and moreover it was most natural for the accused to be present in his own house during the night".

In case of Babu S/o Raveendran -Vrs.- Babu S/o

Bahuleyan and Anr. reported in (2003) 7 Supreme Court

Cases 37, it is held as follows:

"14. The second important circumstantial evidence against the accused is that the accused and the deceased were last seen together. To put it tersely, both of them slept together by retiring to the room that night. Last seen together in legal parlance ordinarily refers to the last seen together in the street, at a public place, or at any place frequented by the public. But here, the last seen together is much more than that. The last seen together here is sleeping together inside the bolted room. It is in the evidence of PW-3 and PW-6 that they had dined together and the accused and the deceased were closeted in a room at about 8.30 p.m. Therefore, on the fateful day the accused and the deceased were closeted in a bedroom at about 8.30 p.m. is undisputed and it is for the accused alone to explain as to what happened and how his wife died and that too on account of strangulation.

xx xx xx xx

18. Now the question which remains to be considered is, who is responsible. As already noticed, the accused and the deceased were closeted inside the room. There is no evidence of an intruder. In such a situation, the circumstances leading to the death of the

// 23 //

deceased are shifted to the accused. It is he who knows in what manner and in what circumstances the deceased has met her end and as to how the body with strangulation marks found its way into the nearby well. All the aforesaid circumstances, taken together cumulatively lead and unerringly point only to the guilt of the accused".

In Trimukh Maroti Kirkan -Vrs.- State of

Maharashtra reported in 2006 AIR SCW 5300, the Hon'ble

Supreme Court held as follows:

"12. 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......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 S. 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

// 24 //

upon the prosecution and there is no duty at all on an accused to offer any explanation".

In case of State of Rajasthan -Vrs.- Kashi Ram

reported in 2006 AIR SCW 5768, the Hon'ble Supreme

Court held as follows:

"19.....whether an inference ought to be drawn under Section 106 Evidence Act is a question which must be determined by reference to facts proved. It is ultimately a matter of appreciation of evidence and, therefore, each case must rest on its own facts".

The Court further held that:

"23.....The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can

// 25 //

consider his failure to adduce any explanation, as an additional link which completes the chain".

In view of the materials available on record, it appears

that homicidal death of the deceased took place in her bed room

where the appellant was present and it was within the special

knowledge of the appellant and therefore, it was incumbent upon

him to explain as to how the death of the deceased was caused

and if that remains unexplained by him, then there can be an

inference of guilt as per the provision under section 106 of the

Indian Evidence Act. Though the appellant is not under any

obligation to disprove the prosecution case, yet when the

prosecution has proved the death of the deceased in the bed

room where the appellant was there, then it can be said that the

prosecution has discharged its initial burden and in such a

situation, if the appellant fails to discharge his burden in terms of

section 106 of the Evidence Act, then it can be a clinching

circumstance, which would point towards the guilt of the

appellant. No doubt, it is a case based on circumstantial evidence

and law is well settled that the circumstances from which

conclusion is drawn should be fully proved, circumstances should

be conclusive, all the established facts should be consistent with

the hypothesis of guilt and inconsistent with the innocence of the

accused and that the circumstances should exclude possibility of

// 26 //

guilt of any person other than the accused, but in view of the

materials available on record, particularly, failure of the appellant

to explain the circumstances under which the death of the

deceased took place coupled with the spot room visit findings,

the inquest report as well as post mortem report findings and the

surrounding circumstances, I am of the humble view that the

learned trial Court has rightly come to the conclusion that the

chain of evidence is complete and the irresistible conclusion is

that the appellant has committed the murder of the deceased;