Partly allowed

Dr.Anil Kumar Singh v. the State of M.P.

Chhattisgarh HC1 Oct 2015CRA/2007/2000

Case brief

AI extract

What is this about?

A husband's convictions concerned his wife's homicidal death in their shared home and alleged dowry-related cruelty. The court upheld the murder conviction and life sentence on circumstantial evidence but set aside the cruelty conviction for lack of positive evidence. The appeal was partly allowed, and his arrest was directed to serve the remaining sentence.

What did the court decide?

Conviction and sentence under Section 498A IPC set aside; appellant acquitted of that charge.

Dr.Anil Kumar Singh Vs the State of M.P. — Dowry and Cruelty | Chhattisgarh HC (2015)

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HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 2007 of 2000
Dr. Anil Kumar Singh, son of Shri Niranjan Singh Ratre, aged about 25
years, Police Station Chhal Chouki, .resident of Barra, District Raigarh
-—Appellant
Versus
State of Madhya Pradesh (Now State of Chhattisgarh)
-—Respondent
JUDGMENT FOR CONSIDERATION
Sd/-
Inder SinghUboweja
Judge
Hon'ble NIr. Pritinker Diwaker, J.
Sd/-
Pritinker Diwaker
Judge i
POST FOR PRONOUNCEIVIENTOF JUDGMENT ON O ~~
Sd/-
JUDGE
O^/ fP/2015

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<br>

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AhR

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HIGH COURT OF CHHATTISGARH. BILASPUR

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Criminal Appeal No. 2007 of 2000

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Dr. Anil Kumar Singh, son of Shri Niranjan Singh Ratre, aged about 25 years, Police Station Chhal Chouki, resident of Barra, District Raigarh (C.G.)

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-—Appellant

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Versus

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State of Madhya Pradesh (Now State of Chhattisgarh)

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-—Respondent

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ForAppellant Mr. Surendra Singh, SeniorAdvocate with Mr. Neenaj Mehta, Advocate For Respondent/State Mr. Avinash K. Mishra, Panel Lawyer. ForObjector Mr. Rajeev Shrivastava;%dyocate

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l-lon'bl&ShritJUstiGePritinker Diwaker Hon'ble SKri*Jugtice4nder Sinah Ubowe i a

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CAV dUfDGMENT

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Delivered on Ol -10-2015

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Per I.S. Uboweja. J.

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This appeal is directed against the judgment of conviction and order of sentence dated 31.07.2000 passed by the First Additional Sessions Judge, Raigarh, in Sessions Trial No. 81/1999 whereby and whereunder the trial Court after finding the appellant guilty, convicted him under Sections 302 and 498A IPC and sentenced him to undergo imprisonment for life and rigorous imprisonment for two years, respectively.

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The case of the prosecution, as has been unfurled, is that the name of the deceased in this case is Dr. Kalpana, wife of the accused / appellant whose marriage was solemnized on 07.05.1998. On 29.03.1999 in between 8-9 p.m. the victim^was found dead in the house of the accused/appel!ant with as many

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as 13 stab wounds on her body. On that day itself at 10.10 p.m. information was given by the Ward Boy of Additional Primary Health Centre, Barra, police outpost Jobi, Police Station Chhal, District^- Raigarh namely Vishnu Prasad (PW-1) who was residing in the same campus where the accused and the deceased used to reside, stating that on the date of incident at about 9.15 p.m. the accused/appellant came near his house, called him 3-4 times and when he came out of his house, he saw him (accused) weeping. According to the said information, accused/appellant informed Vishnu Prasad (PW-1) that somebody had committea;the murder of his wife by causing knife injuries and then tie asked him to inform the police accordingly. Accused/appellant 'is further said to have told Vishnu Prasad (PW-1) that he was geinghfo the village Sarpanch for giving information regarding ^fhe, Sa^ incident. Based on this information, un-numbered FIR (Ex.P-2) was recorded against unknown person. Thereafter, police came to the spot, recorded the merg intimation (Ex. P-1), prepared inquest over the dead body of the deceased vide Ex.P-5, sealed the house and on the next day FIR (Ex.P-16) was registered under Section 302 IPC against unknown person. Body of the deceased was sent for postmortem^{examinationtoCommunityHealth} Centre,^Kharsiya vide Ex.P-13-A, where autopsywas conducted on 30.03.1999 by a team oftwo doctors namely Dr. Sajan KumarAgrawal (PW-19) and Dr. (Smt.) Lalita Rajnala (PW-20) vide Ex.P-13, who found following injuries :-

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(i) Incised wound 8 x 2Y2 cm deep on the right cheek which

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-s

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extended to the angle of mandible bone;

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(ii) Incised wound 6 x 2 cm bone over back of neck transversally placed^{at thelevelofmiddleonneck;}

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(iii) Incised wound 5 x 2 cm bone deep transversally placed below injury No. (ii) underneath the wound 7th cervical vertebrae is fractured;

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(iv) Incised wound 13% x 1 cm bone deep below occipital underneath wound transversally placed linear fracture of occipital bone;

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(v) Incised wound + linear abrasion 6 cm skin deep at the level of Rt. Scapular region directing towards neck;

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(vi) Incised wound + linear abrasion 7 cm x 1.5 cm above & lateral to injury No (v) directing;upward,towards neck;

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(vii) Incised wound 3% x.1 cm,.muscle deep below angle of right mandible;

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Incised wound

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(viii) 1 x '''S cn-isub cut tissue deep below injury No. (vii) :IM^^

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(ix) Incised wound 1 x %CFnsub cuttissue deep lateral & Rt. Side of neck; :.'.,.,::..::,j,;':.,.:;:::l

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(x) Incised wound 2 x 1 Cm muscle deep below injury No. (ix);

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(xi) Rt. upper 3rd molar dislocate from socket;

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(xii) Incised wound 4 x 1 cm muscle deep just over Rt. knee on lateral aspect;

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(xiii) Incised wound + Abrasion 6 cm x4 cm below & lateral to umbilicus Rt. side ofabdomen.

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They opined that cause of death was shock due to excessive hemorrhage, and the death was homicidal in nature.

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On the disclosure statement of the accused/appellant on 31.03.1999, seizure of axe was made from open place vide Ex.P-7 and that of pant, shirt and slippers were made from accused/appellant himself under Ex. P-8. Seized articles were

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sent for chemical examination to the Forensic Science Laboratory, Raipur with a specific query about the imprint of slipper sole but the FSL report was not made available on record. While hearing the appeal, on 28.01.2015 the co-ordinate Bench of this Court exercising the jurisdiction under Section 391 of the Code of Criminal Procedure, 1973 (for short, 'the Code') directed the trial Court to afford an opportunity to the prosecution to adduce further evidence to prove the FSL and the serological reports. This Court also directed for further examination of the appellant under Section 313 of the Code in relation to two reports and an opportktnitywas given to the accused/appellant to adduce evidence, if any. However, despite the order of this Court, no FSL reporttias.been filed or proved by the prosecution and according to it fhe said document beinglO years old has been destroyed. ProseGution has however exhibited serological report which was already on record as Ex.P-SOA. After filing the charge sheet on 20.05.1999 against the accused persons namely Dr. Anil Kumar Singh (appellant herein), his father Niranjan Singh Ratre and sister Nita Ratre for the offences under Sections 498A, 304B, 302, 201, 34 IPC charges were framed accordingly. In order to prove the complicity of the accused persons in the crime in question, the prosecution examined as many as 25 witnesses. Statements of the accused persons under Section 313 of the Code were also recorded in which they denied their guilt and pleaded innocence and false implication in the case.

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After hearing the parties the Court below acquitted the other

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accused persons of the charges leveled against them. The court below also acquitted the accused/appellant from the charge under Section 304B IPC, but convicted and sentenced him as mentioned above.

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Learned Senior Counsel for the accused/appellant submits as

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under:-

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i. That the appellant and the deceased were living a happy married life and the prosecution has utterly failed to prove any motive against the accused/appellant for commission of murder of the deceased.

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ii. That the statement Qf'Vishnu Prasad (PW-1) cannot be used against'the accused/appellant because the same is based on the evidence of Heturam (PW-17) who himself has not suppdrtecl fhe case of prosecution. In support of this argumenti retiance is placed on the decisions of Apex Court in the matter of Yasin Gulam Haider v. State of Maharashtra reported in AIR 1980 SC 878 and in the matter of Vijender v. State of Delhi, Devinder alias Bhinder v. State of Delhi, Mukesh Kumar v. State of Delhi reported in (1997) 6 SCC 171. Thus according to the counsel for the appellant evidence of Vishnu Prasad (PW-1) being a hearsay witness has no value in the eye of law.

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iii. That the memorandum of the accused/appellant is not in accordance with law as the same has not been proved by the investigating officer. According to the counsel for the

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accused / appellant since the investigating officer did not repeat the words used in the memorandum of the accused/appellant while giving statement in the Court, it cannot be said to have been proved by the prosecution as required under the law. In support of this argument counsel for the accused/appellant placed his reliance on the decision of the Apex Court in the matter of IVIujeeb and another v. State of Kerala reported in AIR 2000 SC 591.

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Counsel for the appellant submits that out oftwo attesting witnesses, HlarishGttancl (PW-9) has been declared hostile and Raghuwar Singh'(PW-IO) has also not supported the case of the prosecution. He further submits that as the accused/ap,pellanli'(iasnot signed the memorandum, it cannot be used.againstlhim.

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v. In respect of seizure of axe it has been argued that as per the statement of Raghuwar Singh (PW-10), the said axe was seized from an open place and thus it has no evidentiary value. Counsel for the appellant submits that the most important aspect of the case is that no human blood was found on the axe as during trial FSL report was not filed or proved and even after remanding the matter such report has not been brought on record and being so in the absence of FSL report, serological report (Ex.P-SOA) has no evidentiary value because it has not been established by the prosecution as to on what basis the serological report has been prepared in particular the

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reference of FSL in the serological report is either completely missing or is not tallying with the articles sent to the Forensic Science Laboratory for chemical examination.

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vi. From the spot though important evidence was collected by the prosecution regarding the imprint of the slipper and other articles including the handle offridge, they were sent to Forensic Seience Laboratory for chemical examination but there is no FSL report on record and thus in the absence of such report it can be said that the report was though in favourof:the,accused/appellant but has been deliberately suppressed by the prosecution to falsely ! implicate him. •;

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vii. That while sending the seized articles to the Forensic Science Laboratory prpper precaution has not been taken by the State as required under the law. While referring to Rule 7 of the Criminal Court Rules and Order counsel for the appellant submits that each stage of handling of such articles must be established by the prosecution beyond all reasonable doubts. In support ofthis argument reliance is placed on the decisions oftheApex Court in the matter of State of Rajasthan v. Daulat Ram reported in AIR 1980 SC 1314 and in the matter ofValsala v. State of Kerala reported in AIR 1994 SC 117.

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viii. That as the prosecution has utterly failed to prove that there was any human blood on the seized articles, said recovery is of no consequence. In support of this

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submission reliance is placed on the decisions of the Supreme Court in the matter of K.V.Chacko alias Kunju v. State of Kerala reported in A1R 2001 SC 537, in matter of Sattatiya alias Satish Rajanna Kartalla v. State of Maharashtra reported in AIR 2008 SC 1184 and in the matter of Sunil Rai alias Pauna and others v. Union Territory, Chandigarh reported in AIR 2011 SC 2545.

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ix. That the extra judicial confession made by the appellant before Ramswaroop (PW-4) cannot be considered to be a valid piece of evidence because the said witness was a stranger to the appellarrt and there was no reason for him to make extra judjcia] confession before such a stranger. Ramswaroop (PW-4)?has not even reproduced the words uttered by fhe aGCused/appellant while making the socalled extra judicia]; cofffession before him. In support of this submission reliance is placed on the decisions of the Apex Court in the matter of Heramba Brahma and another v. State of Assam reported in AIR 1982 SC 1595, in the matter of Mohd. Azad alias Samin v. State ofWest Bengal reported in AIR 2009 SC 1307 and in the matter of Sun;7 Rai alias Pauna and others v. Union Territory, Chandigarh (supra).

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x. That during cross examination any suggestion thrown by the counsel for the appellant does not bind the accused thereto. In support of this, reliance is placed on the decision of the Supreme Court in the matter of Sakariya v. State of M.P. reported in 1990 JLJ 785.

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xi. That the prosecution has utterly failed to prove the fact that at the time of incident accused/appellant was present in the house. In support of this, reliance is placed on the decisions of the Apex Court in the matter of R. Rajendran Nair v. State of Kerala reported in AIR 1998 SC 1, in the matter of Arvind Singh v. State of Bihar reported in AIR 2001 SC 2124 and in the matter of Nesar Ahmed and another v. State of Bihar reported in AIR 2001 SC 2416.

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xii. Thateven if the accused/appellant has not taken the plea of alibi in his statement recorded under Section 313 of the Code, it is the case'of the prosecution itself that at the relevant time llte'l'had gone to the electric transformer in connection witM^sonie electric repairwork and this fact has been proved by DKan Singh (PW-14) and Kamlesh Kumar (PW-15). AecQrcting tettie counsel for the appellant when the prosecution case itself is that at the time of incident the accused/appellant had gone out of his house, it was not required to be deposed in the Court statement recorded under Section 313 of the Code. To justify this submission counsel for the accused/appellant has referred to the statement of Sohani Pradhan (PW-5), the nurse of the hospital residing in the same campus, who has stated that at the time of incident the accused/appellant was not at home. In support ofthis submission reliance is placed on the decisions of the Apex Court in the matter ofAher Raja Khima v. State of Saurashtra reported in AIR 1956 SC 217, in the matter of Bishan Dass v. State of Punjab

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xvi. So far as the circumstance that the accused/appellant and deceased had been living together is concerned, counsel for the appellant has placed reliance on the decision of Apex Court in the matter of Subramanian v. State of Tamil Nadu & Anr. reported in 2009 AIR SCW 3550 in which Apex Court in para 14 has held as under :-

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"14. So for as the circumstance that they had been living together is concerned, indisputably, the entirety of the situationshould be taken into consideration. Ordinarily when the husband and wife remained within the four walls of a house'and's deafh by homicide takes plaee it will be:.fof'';thef husband to explain the circumstanees iin which she might have died. However, we cannot lose sight of the fact that althoygti the same may be considered to be a strong GiFcumstance but that by alone in absence of ;ariy 'evidence of violence on the deceased cannot be held to be conclusive. It may be difficult to arrive at a conclusion that the husband and husband alone was responsible therefore."

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xvii. Counsel for the appellant also submits that there is no

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evidence to show circumstantially that the accused/appellant was present in the room at the time of occurrence. The time of occurrence, even by approximation has not been established by the prosecution. In support of this argument reliance is placed on the decision of the Apex Court in the matter of Sohel Mehaboob Shaikh v. State of Maharashtra reported in (2009)128cc588.

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On the other hand, counsel for the State/respondent opposes the appeal and submits that the whole case of appellant is based on circumstantial evidence. The accused/appellant has taken defense of 'Alibi'. He placed reliance on the decision of the Apex Court in the matter of Jasbir & Others v. State of hlaryana reported in (2002) 10 SCC 324 and in the matter of Arun Das v. State of West Bengal reported in 2002 Cr.LJ 1337 (Cal). He further submits that falsity of defense plea is an additional link in chain of circumstances. In support of this argument reliance is placed on the decision of the Apex Court in the matter of Swapan Patra & Others v. State of West Bengal reported in (1999) 9 SCC 242. ht^alsQsubmits that it is the duty of accused to furnish an explanatiori in his statement under Section 313 of the Code regardfFiig .an ^incriminating material that has been produced against him;.l3ut jn.the present case no explanation has been offered by the accused/appellant in this regard. In support of this argument reliance is placed on the decision of the Apex Court in the matter of Rajkumar v. State of Madhya Pradesh reported in(2014) 5 SCC 353. In support of the law relating to Section 302 and 304B ofthe IPC reliance is placed on the decision of the Apex Court in the matter of Rajbir alias Raju and another v. State of Haryana reported in (2010) 15 SCC 116 and in the matter of Jasvinder Saini and others v. State (Government of NCT of Delhi) reported in (2013) 7 SCC 256. In support of the law relating to Section 27 of the Evidence Act reliance is placed on the decision of the Apex Court in the matter of Anter Singh v. State of Rajasthan reported in (2004) 10

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Evidence Act as it is a fact within his knowledge exclusively as to how his wife died, when death took place inside the house within the four corners of a room, it is for the husband to explain as to how his wife died in unnatural circumstances. In this case appellant offers no explanation in his examination recorded under Section 313 of the Code and has also not presented any defence evidence. In the present case learned trial Court has not believed the evidence of extra-judicial confession of accused/appellant made before the prosecution witness Ramswaroop (PW-4), therefore, discussion on extra-judicial confession statement ^i-neaningless in view of non-filing of counter appeal by.the pi-osecution.

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Vishnu Prasad (PW-1) js the person who has lodged the merg (Ex.P-1) and FIR (Ex;P-25 dn the basis of what appellant has narrated to him. Me has reported the incident verbatim as intimated by the appellant. It is clear from his evidence that he had not gone to the place of incident for verifying the incident.

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Nirupa Pradhan (PW-6) was the neighbour of the appellant at the time of incident. She was living with her mother in Hospital quarter. She has proved by her evidence that in the afternoon she returned from Jobi and at about 7.30 p.m.,^{appellantcame} to their house and shouted to open the door, he said that something had happened to Kalpana, then her mother accompanied appellant to his house. She has further stated that half an hour before arrival of the appellant, she had heard screaming from outside her house. In her cross-examination she remained intact that she heard screaming from outside of her

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house.

Smt. Sohani Pradhan (PW-5) is the mother of Nirupa Pradhan (PW-6). She has proved that appellant was living with his wife (deceased) and on the date of incident at about 8.30 p.m. appellant came to her house and said that something had happened to Kalpana, then she rushed towards his house, she saw that body of the deceased was in naked condition with injuries on her neck and abdomen and she was dead. She has clearly stated that she was knowing this fact that deceased had died because she had felt her pulse and found that it was not beating, thereafteriShe saiw that appellant brought the saline bottle and tried to injecttKe ffie same into the deceased. She has further stated that on being asked by the appellant when she tried to inject Decadron, tlie needle slanted.

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Raghuwar Singh (PW-1Q^has proved that appellant came to him at about 9.00 p.m., he narrated that his wife was killed by someone, thereafter he reached the spot and saw the dead body in injured condition lying in the courtyard, appellant told him that someone had tried to commit rape on his wife and killed her.

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Dhan Singh (PW-14) has stated that at about 8.00 p.m. appellant came to him and asked to remove the electrical defects. Prakash was also with him; they went near the transformer and planted the fuse wire. Prakash has not been examined by the prosecution. Other witness Kamlesh Kumar (PW-15) has supported the version of Dhan Singh (PW-14). He also stated that Prakash was also present with them. Dhan Singh (PW-14)

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has made it clear by his statement that appellant never called him for electric work, he used to call Kamlesh (PW-15), but Kamlesh never said that appellant called him prior to that day for doing electric work. Both witnesses have also stated that after some moment they saw the appellant shouting that his wife had been killed by someone and appellant reached to Raghuwar Singh (PW-10) and brought him to his house.

¶118

¶119

Goverdhan Sidar (PW-16) is the Patwari of Patwari Halka Number 3. He has prepared map (Ex.P-10) and duly proved that map. Hetram (P-17) was declared hostile; he was crossexamined by th:& prQsecyticin but he did not support the prosecution story.

¶120

Prosecution evidence^shows that appellant was taken into custody and his CQnfessibn was recorded on the same day under Section 27 of the Indfan Eviderice Act, leading to recovery ofaxe with blood stain on it from the bushes near his house which is marked as Ex.P-7. The memorandum was recorded by the Investigating Officer, R.A. Singh (PW-25). Though independent witnesses Harishchandra (PW-9) and Raghuwar Singh (PW-10) have not duly supported those documents, but they have admitted their signatures on memorandum and seizure document and failed to explain as to how their signatures were present on those documents. It is clear that they are willingly not supporting those documents, but investigating officer, R.S. Singh (PW-25) has duly proved those documents by his reliable evidence.

¶121

¶122

Seized weapon axe was examined by Dr. Sajan Agrawal (PW-

¶123

¶124

19), before sending it to FSL for chemical examination. He has stated that wounds found on dead body of deceased could have been caused or inflicted by the same axe, although FSL report is not submitted and proved by the prosecution in this case. Serological report (Ex.P-30) shows that items sent were examined and seized item earth, kurta, salwar, bra of deceased were found stained with human blood, however, due to disintegration of bloodstains on other articles, their origin could not be determined.

¶125

¶126

Close scrutiny of the prosecution evidence, clearly reveals that on the date of incident appellantwas present in his house. Only two persons i.e. the appellant and the deceased were present in the house, the deceased sustained fatal injuries and died inside the house, her dead body was found inside the house, it reveals that appellant had gQneoutsjye of his house for some moment, but he did not say in his explanation under Section 313 of the Code that when he went outside of his house at that moment his wife was alive, he has also not clarified that how much time he spent outside the house. Statements of Dhan Singh (PW-14) and Kamalesh show that accused/appellant spent (PW-15) sometime with them for removing electrical defects. He has neither given any explanation nor taken defence that when he came back from transformer^{side,thenhefirstsawthedead} body of his wife.

¶127

¶128

¶129

Taking cumulative effect of the evidence available on record, it is clear that the appellant has tried his best to prove that somebody tried to outrage the modesty of^{thedeceasedandduringthat}

¶130

¶131

3s%..
^-i
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J S

¶132

process committed her murder, but neither any medical report nor any other spot evidence shows that such type of incident occurred at the spot. Appellant has also tried to lodge false and fabricated merg intimation / FIR through Vishnu (PW-1) that somebody has killed the deceased, which was patently false report for misleading the investigating agency; it is also a strong circumstance against the appellant. The appellant has not offered any explanation to the effect that who has caused homicidal death of his wife and at the time of incident where he was present, appellant has also not given explanation as to why he himself being a^d6ctoF;did not treat the deceased When he first saw her with fatal jnjurieson her body and why he was trying to give treatment to Ifis wife after calling his neighbour lady Smt. Sohani Pradhan (F'W-15). All this goes to show that he was trying to build up ttis'defenGe, he has also not offered any explanation as to why he himself did not report the incident at police^{stationandnarratedthethesametosomebodyelse.}

¶133

In these circumstances, the appellant was under an obligation to offer an explanation as to who caused homicidal death of his wife, when it was caused where he was, and how he came to know about the death of deceased, but the appellant has failed to offer such explanation. On the basis of disclosure statement axe has been recovered at the instance of the accused/appellant and Dr. Sajan Kumar (PW-19) has clearly proved that fatal injuries found on dead body of the deceased could be inflicted by that axe.

¶134

Death of deceased having taken place inside the house of the

¶135

£o

¶136

¶137

appellant, which was a special fact within the knowledge of the appellant exclusively, under Section 106 of the Indian Evidence Act the onus shifts on the appellant to explain the death which he had failed to discharge. In his statement under Section 313 of the Code, appellant has stated simply that when the incident occurred he was not present in his house or some other person might have killed his wife, he has also not given this explanation that when he was out of his house at that moment incident took place. Thereis no symptom of rape, robbery or dacoity on the spot; it means that death was not the result of rape, robbery or dacoity. :. . 'c :'

¶138

We find no substanGe in the arguments advanced on behalf of the appellant that once the case of the prosecution itself is that ttie deeeased was murdered when the accused/appellanf had gone to get the electricity of his house repaired, he was not required to explain under Section 313 of Cr.P.C. as to how the deceased died. It is nobody's case that the deceased was killed when the accused/appellant came out of house for few minutes to get the electricity repaired. PW-14 Dhan Singh and PW-15 Kamlesh Kumar have merely stated that on the date of incident the accused/appellant came near the transformer for repair of electricity of his house. None of the prosecution witnesses has stated that the deceased was murdered only when the accused/appellant was not at home. If according to the appellant the deceased was murdered when he had gone out of his house, then he should^have pleaded^inhis statement under Section 313 of Cr.P.C. or should have led other

¶139

¶140

evidence that at what time electricity of his house went off and at the time when he left his house his wife/deceased was alive and on his return only he found her dead. There is absolutely no such evidence on record. Though the accused/appellant has tried to take advantage of evidence of PW-14 & PW-15 but in our considered view even if the statements of these witnesses are accepted in its entirety, the same are of no help to the appellant. There is not even an iota of evidence on the part of the appellant that his wife was hale and hearty in the nightofthe incident and that he had spent some time with her. It appears that after committing myrder pf his wife, the accused/appellant made an attempt tp cause disappearance of the evidence and to prove his innocence called PW-5 Smt. Sohni Pradhan and PW-6 Nirupa Pradhan. From the evidence of PW-5 it further reflects that the wife of the accused/appellant had already died much before when she reached his house and that is why when on being asked by the accused/appellant she tried to inject some medicine into the body of the deceased, the needle slanted. 24. In the matter of Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681, at page 690 it has been held by the Supreme Court as under:

¶141

"14. Ifan offence takes place inside the privacy ofa 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 ifthe 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 : (1944) 2 All ER 13 (HL) —quoted

¶142

2-2.

¶143

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 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. lllustration (b) appended to this section throws some light on the content and scope of this provision and it reads:

¶144

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

¶145

Where an offence like murder is eommitted in secrecy inside a house, the initial burden to establish:the case would undoubtedly be upon:;the prosecution, but the jnature and amount of evidence t6';be^led;by it to establish the eharge cannot be of the same idegree 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 corresporidihg burden on the inmates of the house to give a cogenf explanation as to how the crime was committed. The inmafes Qf'ttie 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 aria:t)'iere;is.n6 duty at all on an accused to offer any explanation.

¶146

A somewhat similar question was examined by this Court in connection with Sections 167 and 178-A of the Sea Customs Act in Collector of Customs v. D. Bhoormall, (1974) 2 SCC 544, and it will be apt to reproduce paras 30 to 32 of the reports which are as under: (SCC pp. 553-54)

¶147

"30. It cannot be disputed that in proceedings for imposing penalties under clause (8) of Section 167, to which Section 178A does not apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But, in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and —as Prof. Brett felicitously puts it—'allexactness is a fake'. El Dorado of absolute proof being unattainable, the law accepts for it probability as a working substitute in this work-a-day world. The

¶148

S.3

¶149

.'•^'
^?

¶150

law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent man's estimate as to the probabilities ofthe case. 31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered—touse the words of Lord Mansfield in Blatch v. Archer (1774) 1 Cowp 63 : 98 ER 969, Cowp at p. 65—'accordingto the proofwhich it was in the power of one side to prove, and in the power of the other to have contradicted'. S;'nce it is exceedingly difficult, if not absolutely impossible, for the prosecution to prove facts which are especially within the knowledge ofthe opponent orthe accused, it is not abliged to prove them as part of its primary burden.

¶151

Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy.anel'sfealth.being its covering guards, it is impossible for the RreventiveClepartment to unravel every link of the process. Many,faets Felatjng to this illicit business remain in the special or peculiar khowl^dge of the persons concerned in it. 0/7 the principle un^erlytng/ Section 106, Evidence Act, the burden to establis^those facts is cast on the person concerned; and if he fails to esfaWsh Qr explain those facts, an adverse inference of fact may arise'against him, which coupled with the presumptive evidence^adduced by the prosecution or the Department woulcf islyuttl'ie initial presumption of innocence in favour of that person, and in the result, prove him guilty. As pointed out by Best(in Law of Ew'cfence, 12th Edn., Article 320, p. 291), the 'presumption of innocence is, no doubt, presumptio juris; but every day's practice shows that it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of stolen property', though the latter is only a presumption of fact. Thus the burden on the prosecution or the Department may be considerably lightened even by such presumptions of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. /(will only alleviate that burden, to discharge which, very slight evidence may suffice."

¶152

(emphasis supplied) 18. The question of burden of proofwhere some facts are within the personal knowledge of the accused was examined in State of W.B. v. Mir Mohd. Omar (2000) 8 SCC 382. In this case the assailants forcibly dragged the deceased, Mahesh from the house where he was taking shelter on account of the fear of the accused and took him away at about 2.30 in the night. Next day in the morning his mangled body was found lying in the hospital. The trial court convicted the accused under Section 364 read with Section 34 IPC and sentenced them^to10 years'^Rl.The

¶153

¶154

accused preferred an appeal against their conviction before the High Court and the State also filed an appeal challenging the acquittal of the accused for murder charge. The accused had not given^{anyexplanationastowhathappenedtoMaheshafterhe} was abducted by them. The learned Sessions Judge after referring to the law on circumstantial evidence had observed that there was a missing link in the chain of evidence after the deceased was last seen together with the accused persons and the discovery of the dead body in the hospital and had concluded that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt. This Court took note of the provisions of Section 106 of the EvidenceAct and laid down the following principle in paras 31 to 34 ofthe reports: (SCC p. 392)

¶155

"31. The pristine rule that the burden of proof is on the prosecution to prove the guilt ofthe accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning, Zhe doctrine of presumption is not alien to the above rule, norwciyld'itimpairthe temper oftherule. On the other hand, if tbe fractitional rute relating to burden of proof on the prosecution is aflowed^o ibe wrapped in pedantic coverage, the offenders irr.senous'' offences would be the major beneficiaries and th%;SQci@tyswould be the casualty.

¶156

In this case, when ^e'firosecution succeeded in establishing the afore-narrated circumstainGes, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the courttetely^on in conditions such as this.

¶157

Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. 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 principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of anyfact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct, etc. in relation to the facts of the case.

¶158

When it is proved to the satisfaction of the Court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the Court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused

¶159

¶160

would tell the Court what else happened to Mahesh at least until he was in their custody."

¶161

In Ram Gulam Chaudhary v. State of Bihar (2001) 8 SCC 311 the accused after brutally assaulting a boy carried him away and thereafter the boy was not seen alive nor his body was found. The accused, however, offered no explanation as to what they did after they took away the boy. It was held that for the absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they had murdered the boy. It was further observed that even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The accused by virtue of their spedal knowledge must offer an explanation which might lead the court to draw a different inference.

¶162

In a case based on circumstantial evidence where no eyewitness account is^avarlaBle, there is another principle of law which must be keRf'inimind. The principle is that when an incriminating circtlnTstance rs put to the accused and the said accused either offeFsmo^explanation or offers an explanation which is found tci be unfrue, then the same becomes an additional link in thg chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court. [See State of T.N.v.'RajendFan (1999) 8 SCC 679, (SCC para 6); State of U.P. v. Dr. Ravindra Prakash Mittal (1992) 3 SCC 300 : AIR 1992 SC 2045 (SCC para 39 : AIR para 40); State of Maharashtra v. Sures/7 (2000) 1 SCC 471, (SCC para 27); Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731 (SCC para 15) and Gulab Chand \t. State of M.P. (1995) 3 SCC 574 (SCC para 4).]

¶163

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 ofthe crime. In Nika Ram v. State of H.P. (1972) 2 SCC 80 it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with "khukhri" and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra (1992) 3 SCC 106 the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed

¶164

¶165

that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 CrPC. The mere 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 is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that the wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly.this Court reversed the judgment Qfthe High Court acquitting the accused:;and convicted him under Section 302 IPC. In State of:T. v^Sajendran the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his svifeweFe.seen together in the hut at about 9.00 p.m. and the accused came:out in the morning through the roof when the hut had Gaught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as airesult^Qf.strangulation and not on account of burn injuries. It was held tfctat 'there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetratorof the crime.

¶166

In the case of Dnyaneshwar v. State of Maharashtra, (2007)

¶167

10 SCC 445, the Supreme Court observed in para -10 thus:

¶168

"10. It has not been disputed before us that the deceased was murdered in her matrimonial home. It is not the case of the appellant that the offence was committed by somebody else. It is also not his case that there was a possibility of an outsider to commit the said offence. One of the circumstances which is relevant is that when the couple was last seen in a premises to which an outsider may not have any access, it is for the husband to explain the ground for unnatural death of his wife. In Raj Kumar Prasad Tamarkar v. State of Bihar (2007) 10 SCC 433 this Court held: (SCC p. 440, paras 22-23)

¶169

"22. The conspectus of the events which had been noticed by the learned Sessions Judge as also by the High Court categorically goes to show that at the time when the occurrence took place, the deceased and the respondent only were in the bedroom and the terrace connecting the same. There was no other person. The cause of death ofthe deceased Usha Devi i.e.

¶170

2.?

¶171

"-^"SjJS^":-

¶172

by a gunshot injury is not disputed. The fact that the terrace and the bedroom are adjoining each other is not in dispute.

¶173

The autopsy report shows that 'a blackening and charring' existed so far as Injury (/') is concerned. The blackening and charring keeping in view the nature of the firearm, which is said to have been used clearly go to show that a shot was fired from a short distance. Blackening or charring is possible when a shot is fired from a distance of about 2 feet to 3 feet. It, therefore cannot be a case where the death might have been caused by somebody by firing a shot at the deceased from a distance of more than 6 feet. The place of injury is also important. The lacerated wound was found over glabella (middle of forehead). It goes a long way to show that the same must have been done by a person who wanted to kill the deceased from a short distance. There was, thus, a remote possibility of causation of such type of injury by any other person, who was not on the terrace. Once the prosecution has been able to show that at the relevant time, the room and terrace were in exclusive occupation ofthe couple, the burden of proof lay uppm the respondent to show under what circumstances death^Was,Gaused to his wife. The onus was on him. He failed to diseharg&.fhe same."

¶174

Further, in the case 6f SoOsruru Subrahmanyam v. State of

¶175

A.P., (2013) 4 SCC 244, litwas held by the Apex Court as under:

¶176

"21. Now, we may deal withthe submission that the prosecution has not been able td proae any motive for the commission ofthe crime because the suspiGion on the part of the husband has not been established. We have already recorded an affirmative finding on that score. However, we may, in this context, profitably refer to the pronouncement in Nathuni Yadav v. State of Bihar (1998) 9 SCC 238 wherein a two-Judge Bench has laid down thus: (SCC p. 244, para 17)

¶177

"17. Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Champbell struck a note of caution in R. v. Palmer (Shorthand Report atp. 308 CCC May, 1856) thus:

¶178

'But ifthere be any motive which can be assigned, I am bound to tell you that the adequacy of that motive is of little importance. We know, from experience of criminal courts that atrocious crimes of this sort have been^{committedfromveryslightmotives;} not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing

2.Z

difficulties.'

Though, it is a sound proposition that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all, motive is a psychological phenomenon.^Merefactthat prosecution^failedto translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailant."

¶183

In the said case, it was also observed that in some cases, it may not be difficult to establish motive through direct evidence, while in some other cases, inferences from circumstances may help in discerning the mental propensity ofthe person concerned. In the case at hand, as is noticed, there is material on record which suggests that there was someire that had swelled up in the mind of the accused to extinguish the life spark of the wife."

¶184

27 In the matter of Ravirala Laxmaiah v. State ofA.P., (2013) 9

¶185

SCC 283, the Sypreme Gourt lield as under:

¶186

"20. It is a settled legal:pirQposition that in a case based on circumstantial evidence, WKere no eyewitness account is available, the principle isthaf:

¶187

"6. ... when an incriminating circumstance is put to the accused and the said accused either offers no explanation [for the same,] or offers an explanatibh whieh is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete."

¶188

[Vide State ofU.P. v. Ravindra Prakash Mittal (1992) 3 SCC 300, Gulab Chand v. State of M.P. (1995) 3 SCC 574, State of T.N. v. Rajendran (1999) 8 SCC 679 (SCC pp. 685-86, para 6), State of Maharashtra v. Suresh (2000) 1 SCC 471 and Ganesh Lal v. State ofRajasthan (2002) 1 SCC 731.]

¶189

In Neel Kumar \i. State of Haryana (2012) 5 SCC 766 this Court observed: (SCC p. 774, para 30)

¶190

"30. It is the duty of the accused to explain the incriminating circumstance proved against him while making a statement under Section 313 CrPC. Keeping silent and not furnishing any explanation for such circumstance is an additional link in the chain of circumstances to sustain the charges against him. Recovery of incriminating material at his disclosure statement duly proved is a very positive circumstance against him. (See also Aftab Ahmad Anasari v. Stete of Uttaranchal (2010) 2 SCC 583.)"

¶191

In cases where the accused has been seen with the

¶192

S.9

¶193

deceased victim (last seen theory), it becomes the duty of the accused to explain the circumstances under which the death of the victim has occurred. (Vide Nika Ram v. State ofH.P. (1972) 2 SCC 80, Ganeshlalv. State of Maharashtra (1992) 3 SCC 106 and Ponnusamy (2008) 5 SCC 587.)

¶194

In Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681 this Court held as under: (SCC p. 694, para 22)

¶195

"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 injuriesor offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission ofthe crime." (See also PnthipalSingfi'M:,State ofPunjab (2012) 1 SCC 10.)

¶196

In the matter of Stefe offia/asfhan v. Thakur Singh, (2014) 12

¶197

SCC 211, the Supreme^QUffiobserved thus:

¶198

"15. We find that the Migh Court has not at all considered the provisions ofSection1Q&ofitheEvidenceAct, 1872. This section provides, inter alia, thaf when any fact is especially within the knowledge of any persan, ttte burden of proving that fact is upon him.

¶199

Way back in Shambhu Nath Mehra v. State of Ajmer (AIR 1956 SC 404) this Court dealt with the interpretation of Section 106 of the Evidence Act and held that the section is not intended to shift the burden of proof (in respect of a crime) on the accused but to take care of asituation where a fact is known only to the accused and it is well-nigh impossible or extremely difficult for the prosecution to prove that fact. It was said: (AIR p. 406, para 11)

¶200

"11. This [Section 101] 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 ofthat duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are 'especially' within the knowledge of the accused and which he could prove without difficulty or inconvenience.

¶201

The word^'especially' stresses that. It means facts that^are preeminently 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

¶202

-3o

¶203

accused to prove that he did not commit the murder because who could know better than he whether he did or did not."

¶204

(emphasis supplied)

¶205

In a specific instance in Trimukh Maroti 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)

¶206

"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 orthe 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 pr offefs;an explanation which is found to be false, it is a strong circurnstance which indicates that he is responsible for commission ©fthecrime."

¶207

Reliance was .plaeed lby.t is Court on Ganeshlal v. State of Maharashtra (1992):!.3^seCv'lpe in which case the appellant was prosecuted for the murderQflhis wife inside his house. Since the death had occurred toHis custody, it was held that the appellant was under an obliga'tian to gjMe an explanation for the cause of death in his statement underSection 313 ofthe Code ofCriminal Procedure. A denial,.of.the.'prosecution case coupled with absence of any explanatibn was held to be inconsistent with the innocence ofthe accused, but consistent with the hypothesisthat the appellant was a prime accused in the commission of murder of his wife.

¶208

Similarly, in DnyaneshwarM. 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.

¶209

In Jagdish v. Stete of M.P. (2009) 9 SCC 495 this Court observed as follows: (SCC p. 503,para 22)

¶210

"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.'

¶211

More recently, in Gian Chand v. StateofHaryana (2013) 14 SCC 420 a large number of decisions^{of thisCourtwerereferred}

¶212

-3/

¶213

to and the interpretation given to Section 106 ofthe EvidenceAct in Shambhu Nath Mehra (AIR 1956 SC 404) was reiterated. One of the decisions cited in Gian Chand (2013) 14 SCC 420 is that of State of W.B. v. Mir Mohammad Omar (2000) 8 SCC 382 which gives a rather telling example explaining the principle behind Section 106 of the Evidence Act in the following words: (MirMohammad Omarcase, SCC p. 393, para 35)

¶214

"35. During arguments we put a question to the learned Senior Counsel for the respondents based on a hypothetical illustration. If a boy is kidnapped from the lawful custody of his guardian in the sight of his people and the kidnappers disappeared with the prey, what would be the normal inference if the mangled dead body of the boy is recovered within a couple of hours from elsewhere. The query was made whether upon proof of the above facts an inference could be drawn that the kidnappers would have killed the boy. The learned Senior Counsel finally conceded that in such a case the inference is reasonably certain that the boy was killed by the kidnappers unless they explain otherwise."

¶215

The law, therefoFe, is quite well settled that the burden of proving the guilt of an aceused is on the prosecution, but there may be certain facts pertainihg to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those factS.

¶216

Applying this principle to the facts of the case, since Dhapu Kunwar died an unnatural death in the room occupied by her and Thakur Singh, the cause of the unnatural death was known to Thakur Singh. There is no evidence that anybody else had entered their room or could have ente.'ed their room. Thakur Singh did not set up any case that he was not in their room or not in the vicinity of their room while the incident occurred nor did he set up any case that some other person entered the room and caused the unnatural death of his wife. The facts relevant to the cause of Dhapu Kunwar's death being known only to Thakur Singh, yet he chose not to disclose them or to explain them. The principle laid down in Section 106 of the Evidence Act is clearly applicable to the facts of the case and there is, therefore, a very strong presumption that Dhapu Kunwar was murdered by Thakur Singh.

¶217

It is not that Thakur Singh was obliged to prove his innocence or prove that he had not committed any offence. All that was required of Thakur Singh was to explain the unusual situation, namely, ofthe unnatural death of his wife in their room, but he made no attempt to do this."

¶218

^ss.

¶219

We find no substance in the arguments of the appellant that in the disclosure statement and recovery memo signatures of the appellant were not obtained and hence it loses its evidentiary value. It is a settled proposition of law that the investigating officer is not obliged to obtain signature of an accused in any statement attributed to him while preparing seizure memo for recovery of any article under Section 27 of the Evidence Act. Merely because the recovery memo was not signed by the accused, it will not vitiate the recovery itself. [Ptease see: Sun// Clifford Daniel v. State of Punjab, (2012) 11SCC 205]

¶220

We further find ho substanGe in the arguments of the appellant that in absence of FSL report, the serological report bears no evidentiary value. It appears that there was some fault at the level of investigation because record reveals that the seized articles were sent for chemical examination to FSL and initially report of the FSL was there with the investigating agency and that is why the same was sent to serologist and report of the serologist is on record. Once the serological report is on record based on FSL report, the appellant cannot draw any benefit of misplacing the FSL report by the prosecution.

¶221

We also find no substance in the argument ofthe appellant that the prosecution has not done investigation property by not sending the imprint of the slipper and other articles including handle of the fridge. Even in absence of FSL report, in view of other evidence available on record conviction of the accused/appellant appears to be justified.

¶222

3a,

¶223

Likewise, the argument of counsel for the appellant also has no substance that at each stage of handling of articles it must be proved by the prosecution as to how they were handled and that they were intact while handling from one stage to another. All these lapses are of no help to the accused/appellant because dead body of the deceased was found inside the house of the appellant. Yet another important aspect of the case which is required to be noted is that as per evidence, house of the accused/appellant was surrounded by an eight feet wall and hence it appears to be bit improbable that somebody else might have gained entry into his house and committed the crime, that too within the short span of time when the appellant was allegedly out of his hoyse in connection with repair of the electricity and came back. ~Fhe time gap was so small where it is difficult to believe that somebody might have gained entry into the house of the appellant, made an attempt to rape the deceased and being unsuccessful committed her murder. Had it been so, the appellant ought to have established the fact that he was away from the house for a considerable time and during that period only the incident had taken place.

¶224

In the present case prosecution has proved the complete chain of circumstances, which are as under:-

¶225

i. the appellant and the deceased were present andwere living together under the same roof of the house when the incident took place.

¶226

ii. deceased was found dead in the house of the appellant,

¶227

¶228

iii.

¶229

death of deceased was homicidal in nature, and

¶230

iv. appellant was under an obligation to offer explanation in terms of Section 106 of the Indian Evidence Act that who has caused homicidal death of deceased, although he has tried his best by reporting merg intimation through Vishnu Prasad (PW-1) that crime was committed by somebody else, but circumstances and statements of prosecution witnesses show that there was hardly any possibility that in such a short span of time when appellant was out of his house somebody might have eritered his house and killed his wife, appellant neverystated / explained that when he was out of his house, at that very juncture the incident took place. Ttierefore, repprting of incident that some other person had killed his wife is patently false and concocted story made by the appellant.

¶231

If the above circumstances are considered together, the only inference which would be drawn is that it is the appellant only who is author of the crime and none else and it also exclude the possibility of his innocence.

¶232

On the basis of aforesaid evidence and circumstances, the trial Court has rightly convicted and sentenced the appellant under Section 302 of the IPC. We do not find any illegality or infirmity in the judgment impugned convicting and sentencing the appellant under Section 302 of the IPC.

¶233

Regarding question of cruelty and harassment to the deceased

¶234

¶235

¶236

for dowry demand, father of the deceased Bhim Prasad Tonde (PW-2) has stated in examination-in-chief that after marriage of his daughter she narrated him that appellant was demanding car in connection with dowry, but he has not stated that appellant had demanded car from him as a dowry before marriage or after marriage. In cross-examination he admitted that he is in police service since 1966 and he never reported the matter any where against the appellant for demand of dowry. He was competent to complain to police, society and othergovernment officials and he appears to be a hearsay witness. His evidence is not cogent and reliable on the.pGiin^Qf'ctemand of dowry. Vimal Kumar (PW18), brother of the deceased has stated that his sister had made a complaint to him; against the relatives of the appellant in connection with demandSof^dowry, but he never stated that appellant demanded dQw/ry or harassed his sister in connection with demand of dowry. He has stated that his sister narrated that appellant is money minded and her relation with appellant is strained. On the basis of the above evidence, cruelty for demand of dowry is not proved by the prosecution as required under the law.

¶237

In the present case, there is no evidence regarding demand of dowry at the time of marriage or post marriage. There is no evidence to show that the appellant treated deceased with cruelty or caused her injuries in connection with demand of dowry. In absence of any such positive evidence, the appellant cannot be convicted under Section 498Aof IPC.

¶238

¶239

IBL:

¶240

Disagreeing with the findings recorded by the trial Court, we hold that the prosecution has failed to bring on record the positive evidence against the appellant regarding demand of dowry and has failed to bring home the charge against the appellant under Section 498A IPC, therefore, the appellant is liable to be acquitted of the said charge.

¶241

Accordingly, the appeal is partly allowed. Conviction and sentence of the appellant under Section 498A IPC is hereby set aside whereas conviction and sentence underSection 302 IPC is hereby affirmed.

¶242

It is stated thatthe appellant js pn bail. His bail bond and surety are hereby cancelled.-The trial Court shall take further steps forthwith to arrest the appellant and send him to jail to serve out

¶243

the remaining jailsentence imposed upon him.

¶244

Sd/- PritinkerDiwaker Judge	—^ ——^— -,-_.=^ Sd/- Inder Singh Uboweja Judge

¶245

Chandra

Dr.Anil Kumar Singh v. the State of M.P.

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Dr.Anil Kumar Singh v. the State of M.P.

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