Dismissed

Ram Krishna Alias Ram Kishun v. State of U.P.

Allahabad HC12 Dec 2018CRLA/901/1988

Case brief

AI extract

What is this about?

The High Court dismissed the appeal against conviction for murder under Section 302 IPC. Upholding the trial court's finding, the Court held that the accused husband failed to explain the death of his wife found dead in their home, invoking the burden under Section 106 of the Evidence Act and established precedents like Trimukh Maroti Kirkan.

What did the court decide?

Appeal dismissed; bail bond cancelled; accused to be taken into custody to serve remaining life sentence.

Ram Krishna Alias Ram Kishun Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2018)

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Court No.3

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Criminal Appeal No. 901 of 1988

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• Ram Krishna alias Ram Kishun ---- Appellant Vs • State Of U.P. ---- Respondent

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For Appellant : Shri Sarvesh Kumar Dubey Shri Awadhesh Narain Tiwari For Respondent/State : Shri Amit Sinha, A.G.A.

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Hon'ble Pritinker Diwaker, J. Hon'ble Umesh Kumar, J.

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Per: Pritinker Diwaker, J

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This appeal arises out of the impugned judgement and order dated 18.4.1988 passed by Special Judge (E.C. Act)/Additional Sessions Judge, Jalaun at Orai in Sessions Trial No. 84 of 1987 (State vs. Ram Krishna alias Ram Kishun), convicting the accused-appellant under Section 302 of IPC and sentencing him to undergo imprisonment for life.

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In the present case, name of the deceased is Shakuntala, wife of the accused appellant. Their marriage was solemnized about eight years prior to the date of incident. It is said that on 16.3.1987, at about 10:00 a.m., accused appellant first strangulated his wife by a nylon rope and then burnt her dead body. Information about the incident was communicated to (PW-1) Parsuram, father of the deceased, at whose instance, on 16.03.1987 at 11:10 a.m., FIR, Ex.Ka.16 was lodged against the accused appellant under Sections 302/201 of IPC.

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Inquest on the dead body was conducted vide Ex.Ka.5 on 17.03.1987 and the body was sent for postmortem, which was conducted by (PW-3) Dr. Hari Das Verma vide Ex.Ka.2 on 18.03.1987.

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As per Autopsy Surgeon, following injuries have been found on the body of the deceased:

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“Superficial & deep burn all over body except both sale of the lower limbs. The degree of burns are 5th degree. Hairs of head are singed”

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The cause of death of the deceased was due to shock and asphyxia as a result of strangulation.

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During investigation, police has seized one stove having very less quantity of kerosene oil, one half burnt nylon rope, one white cloth, certain burnt clothes, one stamp paper dated 04.05.1985, written by the accused appellant giving undertaking that henceforth, he would not harass the deceased and would keep her happy.

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While framing charge, the trial Judge has framed the charge against the accused appellant under Section 302 of IPC.

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So as to hold the accused appellant guilty, prosecution has examined seven witnesses, whereas one defence witness as (DW-1) Tulsi Ram, has been been examined by the appellant. Statement of the accused appellant was also recorded under Section 313 Cr.P.C. in which, he pleaded his innocence and false implication.

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By the impugned judgment, the trial Judge has convicted the accused appellant under Section 302 of I.P.C. and sentenced him to undergo imprisonment for life. Hence this appeal.

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Learned counsel for the appellant submits:

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(i) that there is no eye witness account to the incident and the appellant has been convicted solely on the basis of weak circumstantial evidence.

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(ii) that at the time of occurrence, the appellant was not present in the house and had gone to his field and this specific plea has been taken by the appellant in his defence statement and also in his 313 Cr.P.C. statement.

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(iii) that the postmortem report of the deceased does not support the

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prosecution case and if the deceased was burnt after killing her, the nature of burn injuries would have been different and part of her body would not have burnt.

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(iv) that (PW-1) Parsuram, father-in-law of the accused-appellant has falsely implicated the accused. (v) that the possibility of the deceased committing suicide cannot be ruled out and thus, it will not be safe for this Court to convict the appellant on the basis of evidence available on record.

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On the other hand, supporting the impugned judgment, it has been argued by the State counsel that the conviction of the appellant is in accordance with law and there is no infirmity in the same. He submits that the presence of accused-appellant, at the place of occurrence, has been duly proved by (PW-2) Raghuraj Singh.

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We have heard counsel for the parties and perused the record.

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(PW-1) Parsuram is a father of the deceased. He has stated that the marriage of the deceased was solemnized with the appellant about eight years prior to the date of incident and from the beginning the appellant used to harass the deceased and also used to beat her. He states that as the physical condition of the deceased was not good, he brought her into his house but in 1985, the accused-appellant again took her by assuring that he would keep the deceased properly. He stated that an undertaking of the appellant was recorded in the stamp paper Ex.Ka-3 that henceforth the appellant would not harass the deceased. He states that he received the information about the burn incident and when he reached to the house of the appellant, he found the dead body of the deceased lying in a naked condition and that she was first strangulated and then was burnt by the appellant. He states that at his instance, F.I.R. was recorded.

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(PW-2) Raghuraj Singh is a villager residing in the same village, where the accused-appellant and the deceased were residing has stated that while he was going on his Tractor, near the house of appellant, he saw him shouting that his wife is burning but when he reached there, he did not find

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her. He is also a witness of inquest. This witness has proved the presence of the appellant in the house in question and in defence no question whatsoever has been put to him in his cross-examination. Thus, the presence of the appellant, at the place of occurrence, has been duly proved by the prosecution.

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(PW-3) Dr. Hari Das Verma conducted the postmortem on the body of the deceased. He has categorically stated that burn injuries, found on the body of the deceased, were postmortem burn injuries and the deceased died because of strangulation.

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(PW-4) Haris Chand Singh has proved the stamp paper dated 04.05.1985, Ex.Ka.-3, in which undertaking was given by the appellant that he would keep the deceased properly.

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(PW-5) Jagannath Tiwari filed charge-sheet and did part of investigation.

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(PW-6) Bhagwan Sharan Shukla is the Investigating Officer of the case. He has stated that he found the body of the deceased in a naked condition and in the wall, he noticed the struggle marks and those could be of the hands of the deceased.

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(PW-7) Ram Kumar Sharma assisted during investigation.

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(DW-1) Tulsi Ram is the father of the appellant. He has stated that the appellant never used to beat his wife and on the date of incident, his son was working in the field and that he was taken by the police in the police station where he was also beaten. In the cross-examination, he has stated that on the date of incident, he never met the appellant and he was informed by a child that his son has been taken by the police. In his 313 Cr.P.C statement, the appellant denied all the incriminating circumstances appearing against him and has stated that he was not present in his house.

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Close scrutiny of the evidence makes it clear that on 16.03.1987, the accused appellant killed his wife by strangulation and then set her body ablaze. Presence of the appellant has been duly proved by (PW-2) Raghuraj Singh, in the house in question, who has categorically stated that he saw the

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appellant raising cries that his wife was burning. Though, the accused appellant has made an attempt to take the plea of alibi but that has not been proved by him and but for the bald statement that he was not present at the place of occurrence, nothing has been stated by him. Postmortem report of the deceased also confirms the homicidal death and it has been specifically stated by the Autopsy Surgeon that the deceased was first strangulated and then set ablaze. Yet another piece of evidence, which goes against the accused appellant is the undertaking given by him vide Ex.Ka.3 dated 04.05.1985, wherein he has not only admitted that he was ill treating his wife but had also assured that in future he would keep his wife happy.

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In a case where house murder is the issue, heavy burden is on the shoulders of the accused to explain as to under what circumstances the deceased died but here no such explanation has come either in his statement recorded under Section 313 of the Code of Criminal Procedure nor did he take any defence to this effect by adducing any evidence. While dealing with the matter involving the murder committed inside the house, it has been held by the Apex Court in the matter of Trimukh Maroti Kirkan v State of Maharashtra¹ as under:

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"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 AC 315) - quoted with approval by Arijit Pasayat, J in State of Punjab v. Karnail Singh (2003) 11 SCC 271). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be held. 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:

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"(b) A is charged with travelling on a railway without ticket. The

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1 (2006) 10 SCC 681

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burden of proving that he had a ticket is on him."

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Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubedly 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 offeirng 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."

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Further in the matter of State of Rajasthan v Thakur Singh ,² it has been held by the Apex Court as under:

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"17. In a specific instance in Trimukh Morati Kirkan v. State of Maharashtra (2006) 10 SCC 681) this Court held that when the wife is injured in the dwelling home where the husband ordinarily resides, and the husband offers no explanation for the injuries to his wife, then the circumstances would indicate that the husband is responsible for the injuries. It was said: (SCC p. 694, para 22)

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"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."

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Reliance was placed by this Court on Ganeshlal v. State of Maharashtra {(1992) 3 SCC 106)} in which case the appellant was prosecuted for the murder of his wife inside his house. Since the death had occurred in his custody, it was held that the appellant was under an obligation to give an explanation for the cause of death in his statement under Section 313 of the Code of Criminal Procedure. A denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant was a prime accused in the commission of murder of his wife.

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2 (2014) 12 SCC 211

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Similarly, in Dnyaneshwar v. State of Maharashtra {(2007) 10 SCC 445} this Court observed that since the deceased was murdered in her matrimonial home and the appellant had not set up a case that the offence was committed by somebody else or that there was a possibility of an outsider committing the offence, it was for the husband to explain the grounds for the unnatural death of his wife.

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In Jagdish v. State of MP {(2009) 9 SCC 495} this Court observed as follows: (SCC 503, para 22)

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"22... It bears repetition that the appellant and the deceased family members were the only occupants of the room and it was therefore incumbent on the appellant to have tendered some explanation in order to avoid any suspicion as to his guilt."

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In the present case, accused-appellant has failed to offer any probable acceptable explanation and thus, it can safely be held that it is the accusedappellant, who committed the murder of the deceased.

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Taking the cumulative effect of the evidence, we are of the view that the trial court was justified in convicting the appellant in commission of murder of his wife.

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The appeal has no substance and the same is, accordingly, dismissed . Appellant Ram Krishna @ Ram Kishun is on bail. His bail bond stands cancelled and he be taken into custody forthwith to serve the remaining sentence.

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Dated: 12.12.2018

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RK/SK

Ram Krishna Alias Ram Kishun v. State of U.P.

Case brief

What is this about?

What did the court decide?

Ram Krishna Alias Ram Kishun v. State of U.P.

Case brief

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