Rajasthan High Court - Jaipur
Discussion And Conclusion vs Kashi Ram on 18 March, 2015
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT Mangatu Ram v. State of Rajasthan D.B. Criminal Appeal No.241/2005 against the Judgment dated 28.1.2005 passed by the Additional Sessions Judge (Fast Track), Bandikui, District Dausa in Sessions Case No.45/04(30/04) Date of Judgment:- March 18th, 2015 PRESENT HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA HON'BLE MRS. JUSTICE NISHA GUPTA Mr. Jitendra Pande, for the appellant. Mr. N.S. Dhakar, Public Prosecutor for the State.
(Per Ahluwalia, J.) Mangatu Ram, the present appellant, was married with Sunita Devi according to the Hindu customs and rites. Jagdish, brother of the deceased, Sunita Devi, on 25.3.2004, had instituted a criminal complaint (Ex.P.14) in the court of Judicial Magistrate, Bandikui. In the said complaint, orders were passed under Section 156(3) Cr.P.C. and consequently, an FIR No.51/04 (Ex.P.18) under Sections 498A, 304B, 201/302, 147 IPC was registered at Police Station Kolwa, District Dausa. After investigation of the FIR, the present appellant, Mangatu Ram, husband of the deceased, Sunita, and his father, Sheobux, father-in-law of the deceased, were sent for the trial.
The trial court vide impugned judgment dated 28.1.2005 acquitted Sheobux, father of the appellant, who was prosecuted being father-in-law of the deceased. The trial court also returned a finding that the marriage was ten years old and the prosecution has failed to prove the demand of dowry and thus, recorded acquittal of the present appellant for offence under Sections 304B and 498A IPC. The trial court further came to the conclusion that on the night of the occurrence, the appellant had stealthily without informing the relations or police and without getting the post-mortem of the dead body conducted, in hush-hush manner had cremated the deceased. Therefore, the appellant was held guilty of offence under Section 302 IPC read with Section 201 IPC for having caused murder and disappearance of the evidence of the dead body.
Having convicted the appellant for the above said offences vide impugned judgment dated 28.1.2005, vide a separate order of even date, the trial court sentenced the appellant as under:-
U/s. 302 IPC: Life imprisonment, to pay a fine of Rs.500/- and in default thereof to undergo three months simple imprisonment.
U/s. 201 IPC: Three years simple imprisonment, to pay a fine of Rs.100/- and in default thereof to undergo fifteen days simple imprisonment.
Both the sentences were ordered to run concurrently.
The peculiar feature of the case is that almost all the witnesses except Jagdish (P.W.10), brother of the deceased, have turned hostile and have not supported the prosecution case. But from the evidence of the hostile witnesses, following two incriminating pieces of evidence have emerged against the appellant:-
(i). The deceased was five months pregnant, had died in the house of the appellant.
(ii). The appellant without informing anybody cremated his wife in the night.
The finding of the learned trial court holding that the above two incriminating circumstances prove the guilt of the appellant has been assailed before us. Before we deal with the arguments raised by the learned counsel for the appellant, it would be necessary for us to notice the evidence led by the prosecution.
Jagdish (P.W.10), filed a criminal complaint (Ex.P.14) wherein he stated that his sister, Sunita, was married with the appellant according to the Hindu customs and rites and both were residing in Village Chobadi Wala. It was further stated in the complaint that at the time of marriage, dowry according to their capacity, was given. But the appellant being dissatisfied used to beat up Sunita and oust her from their house. Every time Sunita was sent back to her matrimonial house after making her see reason. On 15.3.2004 at about 11:00 AM the appellant after causing injuries to Sunita Devi, strangulated her with a rope and thereafter had thrown her dead body in the well. It was further stated in the complaint that on 21.3.2004 a meeting of Koli Samaj was held in which the appellant and his parents confessed their guilt. It was further stated in the complaint that the deceased was carrying five months old pregnancy. The appellant was charged for offence under Sections 498A and 304B IPC and in the alternative, for offence under Sections 302 and 201 IPC. The appellant pleaded not guilty and claimed trial.
The prosecution commenced its evidence.
Harjeet Singh (P.W.1) stated that on 15.3.2004 he was present in his field. At about 5:00 PM, the accused raised a shriek. The witness was attracted to the field of the accused and saw that inside the hut, the accused's wife was lying dead and two or three persons were present there. One person out of them stated that the wife of Mangatu Ram had died and the family members of Mangatu Ram be informed, upon which the witness went to the parents of the accused and informed them that the wife of Mangatu Ram had expired. This witness was declared hostile. He did not support the prosecution case.
Harsahai (P.W.2) stated that Mangatu Ram was married 5-7 years ago, but he was not aware about the name of his wife. Mangtu was keeping his wife well. As to how the wife of Mangtu had died, the witness feigned ignorance. The witness further stated that a meeting of the Samaj was held in which father of the appellant stated that ???? ???? ?? ??? ?? ??? ?? ???, ??? ???? ?? ??? ???? ??? ?????. This witness was also declared hostile by the prosecution and was confronted by the Additional Public Prosecutor with his previous statement recorded under Section 161 Cr.P.C.
Gangadhar (P.W.3) stated that Mangtu was married 6-8 years ago. Name of his wife was Sunita. She died while cutting crop of black gram. He further stated that the meeting of the Koli Samaj was held in which father of the appellant had stated that ?? ?? ?????? ???? ???? ?? ??? ?? ???? ?? ??? ??? ???? ?? ??? ???? ???? ????? ?? ??? ???? ???. This witness was also declared hostile and was confronted by the learned APP with his previous statement recorded under Section 161 Cr.P.C. In his cross-examination, the witness stated that what is the meaning of Kartab is not known to him.
Chhaju (P.W.4) has also turned hostile. But this witness in his statement stated that the accused cremated his wife in the night. The witness stated in the court that ??? ??? ?? ??? ??? ?? ??? ?? ???? ????? ???? ??? 9-10 ??? ??? ??? ??? ??? ??? ??? ?? ??? ??? ??? ??? ??, ???? ??? ???? ??? ?? ??? ?? ????? ?? ??? ???? ???? ???
Shrawan (P.W.5) was also declared hostile. However, in his examination-in-chief he stated that he heard that in the meeting Sheobux stated to Jagdish (P.W.10), the brother of the deceased, wrong was committed by his son. This witness was also confronted with his previous statement recorded by the investigating agency under Section 161 Cr.P.C.
Laduram (P.W.6) was also declared hostile. He also stated that a meeting of the Samaj was held in which Sheobux stated that ???????? ?? ?? ??? ?? ???? ???? ?? ??? ?? ?? ???? ?? ??? ???? ???? ?? ??? ???? ???? ?????.
Ram Dayal (P.W.7) also turned hostile. He also stated that Sheobux admitted that wrong was committed by his son, i.e. the present appellant.
Gyarsilal (P.W.8) stated that on the day of occurrence at about 5:00 PM Mangtu had raised a loud cry. He had gone to his Kachha hut where his wife was lying dead. He had sent Harjeet to call the parents of Mangtu, the appellant.
Prem (P.W.9) has also not supported the prosecution. She was also declared hostile and was confronted with his previous statement recorded by the police.
Jagdish (P.W.10) stated in court that his sister was married with the appellant. He daily used to beat her and demand motorcycle. He further stated that seven days after Sunita died, he received a telephonic information from his maternal uncle and brother-in-law that Sunita had died. This witness further stated that a Panchayat was held in which Sheobux, father of the appellant, and his mother confessed that murder has been committed by them. At that time, the present appellant had gone to immerse ashes of the deceased in Ganga.
Heeralal (P.W.11) was also declared hostile. He also stated that in a Panchayat meeting Sheobux had admitted that Mangtu Ram had committee a wrong act.
Mangali (P.W.12) has also not supported the prosecution case. He was also declared hostile.
Jai Singh (P.W.13) has also not supported the prosecution case and he was also declared hostile.
Phoolchand (P.W.14) after orders were passed by the Court of Judicial Magistrate u/s.156(3) Cr.P.C., upon complaint (Ex.P.14) had registered the FIR (Ex.P.18). In his cross-examination, this witness stated that before filing of complaint no information was received at the police station.
Dr. Lalchand Kayal (P.W.15) being investigating officer, has proved various facets of the investigation.
Statements of the accused were recorded under Section 313 Cr.P.C. They denied the charges and pleaded false implication. The accused-appellant stated that he had not killed his wife and has been falsely implicated due to grudge.
The learned trial court returned a finding that on the date of incident marriage between deceased, Sunita, and appellant, Mangatu Ram, was about ten years old. It will be apposite to reproduce exact words of trial court ??: ??? ?????? ??? ?? ???? ?????? ??.?????.2 ?? ????? ??????? ??? ???? ??? ??? ?? ?? ???????? ?????? ?? ?? ???????? ?? ???? ??? ???? 10 ???? ?? ???? ???? ??????? ????? ?????? ??? ???????????? ?? ????? ??? ???? ??? ??? ?? ???? ????? ??? ?? ?????????? ?? ??? ?? ?? ????? ?????? ?? ????? ???? ?????? ?? ??? ???? ?? ???? ?? ???? ???????? ???????? ?? ??? ??? ???. The trial court further held that Jagdish had made improvements in his statement of the court and held that prosecution has failed to prove demand of dowry. The finding returned by the trial court on this count reads as under:-
???????? ?? ?????? ??????? ?? ?? ?? ????? ?? ??? ????? ???? ???? ?? ?? ?????????? ?? ?????? ?? ???? ?????? ???? ???? ???? ????? ?? ???? ?? ?? ?? ??? ?? ?? ??????? ???? ?? ??? ???????? ???? ?? ??? ???? ??? ??????? ????? ??????? ???? ??? ??????? ?????? ?? ???? ?? ?????????? ?????? ???? 498A ??.?.?. ?? ??????? ??????? ????? ????? ???? ???? ????? ?? ??? ????? ???? ???? ??? ??: ??????? ???? ?? ???? ?? ????? ???? ?? ???? ?? ?? ????? ?????? ?? ????? ???? ?????? ?? 7 ???? ?? ???? ?? ???? ???????? ????? ?? ??? ??? ??? ?????????? ?????? ?????? ?? ?????? ?? ??? ??? ????? ??? ???? ?? ??? ???????? ???? ???? ??: ??? ???? ??? ?????????? ?????? ???? 304 ?? ??.?.?. ?? ???????? ??????? ????? ????? ???? ???? ?? ????? ?? ??? ????? ???? ?????.
The learned trial court, however, invoked Section 106 of the Evidence Act to hold that the appellant has not explained the circumstances regarding death of his wife and held him guilty of offence of murder punishable under Section 302 IPC.
Shri Jitendra Pandey, the learned counsel appearing for the appellant, has assailed the evidence of Jagdish (P.W.10) to contend that there was no demand of dowry on the part of the appellant and on this score witness has not been believed by the trial court. Therefore, the evidence of Jagdish (P.W.10) that he was not informed about the death of his sister should also be discarded. The learned counsel stated that in fact, the appellant had informed Jagdish, brother of deceased Sunita, but he had not come to attend the cremation. Therefore, the provisions of Section 106, Evidence Act are not attracted in the present case.
The learned counsel further submitted that Gangadhar (P.W.3) has stated that Sunita had died while she was cutting black gram and, therefore, it cannot be assumed that when she died, the accused was with his wife, Sunita.
To rebut the arguments raised by counsel for the appellant, the learned Public Prosecutor has urged that the evidence of the prosecution should be taken into consideration in totality.
Harjeet (P.W.1) and Gyarsi Lal (P.W.8) have specifically stated that the dead body of Sunita was in the hut of the appellant when he raised a cry and attracted the people around. It has also come in the evidence of Chhaju (P.W.4) that Sunita was cremated in the night at about 9:00 to 10:00 PM. We cannot ignore that as a general practice in Indian society, the dead body is not cremated after sunset. We are conscious that we cannot place reliance on the exculpatory statement made by father of the appellant who admitted before the Panchayat meeting that a wrong has been committed by his son. Even we exclude this piece of evidence, the prosecution has conclusively proved that Sunita died in suspicious circumstances and her dead body was cremated by the appellant without informing relations of the deceased.
A similar question was considered by a Division Bench of this court to which one of us (Kanwaljit Singh Ahluwalia, J.) was a Member and in the case of Devnarayan & Ors. v. State of Rajasthan [D.B. Criminal Appeal No.393 of 2005, decided on 24.2.2015],it was held that it is incumbent for the accused to furnish an explanation as to how his wife had died. To fortify the above observation, in the case of Devnarayan (supra), this court had placed reliance on the judgment of the Hon'ble Supreme Court rendered in the case of State of Rajasthan v. Thakur Singh [2014 Cr.L.J. 4047] wherein Their Lordships of the Apex Court had observed as under:-
Discussion and conclusion
14. Questioning the decision of the High Court acquitting Thakur Singh, the State of Rajasthan has preferred this appeal.
15. We find that the High Court has not at all considered the provisions of Section 106 of the Evidence Act, 1872.1 This section provides, inter alia, that when any fact is especially within the knowledge of any person the burden of proving that fact is upon him.
1 106. Burden of proving fact especially within knowledge.When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustrations
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.
16. Way back in Shambhu Nath Mehra v. State of Ajmer2 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 a situation 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:
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 of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are especially within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word especially stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not.
17. In a specific instance in Trimukh Maroti Kirkan v. State of Maharashtra3 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:
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.
18. Reliance was placed by this Court on Ganeshlal v. State of Maharashtra4 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.
19. Similarly, in Dnyaneshwar v. State of Maharashtra5 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.
20. In Jagdish v. State of Madhya Pradesh6 this Court observed as follows:
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.
21. More recently, in Gian Chand v. State of Haryana7 a large number of decisions of this Court were referred to and the interpretation given to Section 106 of the Evidence Act in Shambhu Nath Mehra was reiterated. One of the decisions cited in Gian Chand is that of State of West Bengal v. Mir Mohammad Omar8 which gives a rather telling example explaining the principle behind Section 106 of the Evidence Act in the following words:
During arguments we put a question to 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. 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.
22. The law, therefore, is quite well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining 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.
23. 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 entered 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 Kunwars 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.
24. 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, of the unnatural death of his wife in their room, but he made no attempt to do The similar view was also formulated by the Hon'ble Supreme Court in the case of State of Rajasthan Vs. Kashi Ram, (2006) 12 S.C.C. 254, and it was observed as under :-
17. It is not necessary to multiply with authorities. 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 consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Mad 218.
There is considerable force in the argument of counsel for the State that in the facts of this case as well it should be held that the respondent having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since, the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Evidence Act. This circumstance, therefore, provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt.
We also cannot ignore that in the present case the dead body was cremated in the night and that too without informing the relations of the deceased or to the police. The very fact that that dead body hurriedly with great urgency and without informing the relations of the deceased, was clandestinely cremated speaks volume against the conduct of the appellant. In the present case, the appellant had not waited for the post-mortem so as to find the cause of death.
In the case of State of Rajasthan Vs. Jaggu Ram, 2008 Cri.L.J. 1039, where the dead body was cremated without informing the Police and the parents and the disposal of the dead body in a hush-hush manner was presumed as a circumstance against the accused and Their Lordships held as under:-
The conduct of the accused and his family members in not informing the parents of the deceased about the injuries caused on her head and consequential death and the fact that the cremation of the dead body was conducted in the wee hours of 30.3.1993 without informing the parents or giving an intimation to the Police so as to enable it to get the post-mortem of the dead body conducted go a long way to show that the accused had deliberately concocted the story that Shanti @ Gokul was suffering from epilepsy and she suffered injuries on her head by colliding against the door bar during the bout of fits. The disposal of dead body in a hush-hush manner clearly establish that the accused had done so with the sole object of concealing the real cause of the death of Shanti @ Gokul.
Thus, in the totality of the circumstances, we affirm the finding returned by the trial court qua murder and causing disappearance of evidence and thus, we uphold the conviction of the accused-appellant for offence under Sections 302 and 201 IPC and also affirm the sentence awarded by the trial court.
Consequently, the present appeal being devoid of any merit is, hereby, dismissed.
(NISHA GUPTA) J. (KANWALJIT SINGH AHLUWALIA) J. Govind/-
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Govind Sharma, Sr.P