Vinod Kumar vs State Of U.P. on 31 March, 2017

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Allahabad High Court

Vinod Kumar vs State Of U.P. on 31 March, 2017

(Delivered by Hon'ble Arvind Kumar Mishra-I,J.) By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 08.05.1995 passed by the Additional Sessions Judge, (Special Judge) Allahabad, in Sessions Trial No.68 of 1991 State of U.P. Vs. Vinod Kumar, arising out of Case Crime No.242 of 1989, under Section 302 IPC, Police Station- Kokhraj, District- Allahabad (now district Kaushambi) whereby the appellant Vinod Kumar has been sentenced to life imprisonment.

Heard Sri V.P. Srivastava, learned Senior Counsel assisted by Smt. Mandvi Tripathi, learned counsel for the appellant, Sri Akhilesh Singh, learned Government Advocate assisted by Sri A.N. Mulla, Sri Saghir Ahmad, Kumari Meena, learned AGAs and Smt. Manju Thakur, brief holder for the State and perused the record of this appeal.

Factual evolution leading up to this appeal as discernible from the record is primarily rooted in the first information report lodged against the accused Vinod Kumar, at Police Station Kokhraj, the then within district Allahabad (now Kaushambi) on 28.07.1989 at 1:45 p.m. which divulges some past incident/occurrence having taken place on 10.07.1989, with following description that the informant Dinesh Kumar Mishra claims that he is resident of Kishna Colony, House No.61, Fatehpur. His niece Rajani was wedded to the accused appellant Vinod Kumar, resident of Village-Vidanpur within Police Station Kokhraj, District Allahabad (now Kaushambi) about 8-10 years ago. The first information report proceeds on with description that the accused-appellant Vinod Kumar set her wife to fire on 10.07.1989 and killed her. Request was made for lodging the report and taking appropriate action. The written report is Ext. Ka-1.

Contents of the aforesaid information were taken down in the concerned Check FIR at Case Crime No.242 of 1989 under Section 302 IPC, at Police Station Kokhraj, District Allahabad (now Kaushambi), on 28.07.1989 at 1:45 p.m. Check FIR is Ext. Ka-4. On the basis of entries so made in the check F.I.R., a case was registered against the accused-appellant in the relevant G.D. at serial no.28 on 28.07.1989 at 1:45 p.m. at aforesaid case crime number at Police Station Kokhraj under aforesaid section of I.P.C. against accused-appellant. General diary copy is Ext. Ka-5.

Record reflects that in this case, some information was received by the concerned police station regarding the occurrence on 10.07.1989 at 2:30 p.m. whereupon inquest of the deceased Rajani wife of the accused-appellant Vinod Kumar was held under supervision of Tehsildar and was prepared by Sub Inspector Brijendra Singh Chauhan on the very same day. It commenced at 7:45 p.m. and completed at 9:30 p.m. The inquest witnesses concurred with the Investigating Officer that the dead body be sent for post mortem examination in order to ascertain real cause of death. Inquest report is Ex. Ka-8.

In the course of proceedings, relevant papers were prepared for sending the dead body for post mortem examination. These papers are Ext. Ka-11 to Ext. Ka-15. Specimen seal is Ext. Ka-16. Thereafter, post mortem examination on cadaver of the deceased was done by Dr. U.S. Sinha PW-4 on 11.07.1989 at 3:00 p.m. in the mortuary at Allahabad wherein he noted the following ante mortem wounds:

An extensive burnt present only on the front of chest, neck and whole face and skull. Burn as 36%.

Note- A portion of tuft hair of scalp was unburnt on its back. Top of tongue was protruded and burnt.

In the opinion of the doctor, cause of death was asphyxia as a result of strangulation. This post mortem examination report is Ext. Ka-2.

We gather from record that on 10.07.1989, after information was given by the accused-appellant Vinod Kumar about death of his wife Rajani in writing, the information was noted in the concerned General Diary No.25 at 2:30 p.m. at Police Station Kokhraj by Constable Hare Ram Yadav. The concerned general diary entry was weeded out.

Relevant to take note of the fact that the incident in question had already taken place on 10.07.1989 and follow up action pursuant to the incident in form and shape of holding inquest and conduction of post mortem examination had also taken place, thereafter, the first information report was lodged by the informant Dinesh Kumar Mishra on 28.07.1989.

We also gather that prior to lodging of FIR, certain papers in form of memos were prepared which deserve mention at this stage; memo of match stick and plastic container in which oil was purportedly kept, was prepared by Sub-Inspector Brijendra Singh Chauhan on 10.07.1989. Memo whereof is Ext. Ka-10.

After the case was lodged on 28.07.1989 against the accused-appellant, the investigation of the case was taken over by the Investigating Officer Prem Prakash PW-5 who was, at that point of time, posted as Inspector at Police Station Kokhraj. He took primary steps and recorded relevant contents of the first information report and general diary and proceeded to the spot and recorded statement of the witnesses and prepared site plan Ext Ka-3. It has been stated by the Investigating Officer PW-5 that since post mortem examination report indicated cause of death as strangulation due to asphyxia, offence was prima facie made out, therefore, charge sheet was filed against the accused-appellant as Ext. Ka-9.

Pursuant thereto, proceedings were committed to the court of Sessions from where it was transferred for conduction of trial and disposal of the case to the aforesaid trial court of Additional Sessions Judge (Special Judge), Allahabad, who in turn heard both the sides on point of charge and was prima-facie satisfied with the case against the accused-appellant, accordingly, framed charge under Sections 302 IPC. Charge was read over and explained to the accused-appellant who abjured charge and opted for trial.

In turn the prosecution was required to adduce its testimony. The prosecution produced in all five prosecution witnesses. A brief reference of whom entails hereinbelow.

Dinesh Kumar Mishra PW-1 is the informant. He has proved the written report Ext. Ka-1. However, he has turned hostile. Subhadra Devi PW-2 is mother-in-law of the accused-appellant. She has testified on certain factual aspect of the case. Similar is the testimony of Hemlata Pandey PW-3. Dr. U.S. Sinha PW-4 has conducted post mortem examination on the cadaver of the deceased Rajani on 11.07.1989 and has proved post mortem examination report as Ext. Ka-2. Prem Prakash PW-5 is the Investigating Officer. He has detailed various steps he took in completing investigation of the case. He has proved filing of the charge sheet against the accused-appellant as Ext. Ka-9.

Except as above, no other testimony was produced by the prosecution. Consequently, evidence for the prosecution was closed and the statement of the accused-appellant was recorded under Section 313 Cr.P.C. Accused-appellant claimed his implication false and stated that Hemlata Pandey was inimical towards the accused-appellant and animosity existed between Hemlata Pandey and the accused-appellant. Hemlata Pandey and Shashibala are related to each other as sisters-in-law (Devrani and Jethani). The husband of Shashibala had died. Hemlata Pandey and her husband had grabbed property of Shashibala and had ousted Shashibala from the house. Shashibala was real Bua of deceased Rajani. Property dispute led to some litigation between Hemlata Pandey and Shashibala. The accused-appellant assisted Shashibala in this litigation and the case was contested between the parties which was decreed in favour of Shashibala but Shashibala was being persistently perplexed by Hemlata Pandey and her husband.

After the incident, the accused-appellant informed his mother-in-law and father-in-law about the incident by sending telegram. His mother-in-law and father-in-law came to his house and resided with him for 3-4 days. Thereafter, Hemlata Pandey went to Rajasthan and incited them to lodge FIR and case against him. At the time of death of his wife, he was at his tubewell. His niece informed him about the incident at the tubewell. When he came back to home, he found the door of the room bolted from inside. When Tehsildar came on the spot, he got the door broken.

The accused-appellant has produced Shashibala as DW-1. She has stated about some factual aspects of the case and has tried to give shape to the reality behind lodging of the first information report. Thereafter, evidence for the defence was closed and the case was posted for arguments.

The case was heard on merit by the learned trial Judge who after appraisal of facts and evaluation of the evidence and circumstances of the case, returned finding of conviction against accused-appellant under Section 302 IPC and sentenced the accused-appellant to life imprisonment under Section 302 IPC.

Consequently, this appeal.

Contention has been raised on behalf of the accused-appellant that it is a case of personal vengeance instigated at the instance of the prosecution witnesses. No offence was committed by the accused-appellant and he had neither any occasion nor any motive to commit murder of his own wife. The marriage had already taken place about 8-10 years ago and the victim being perplexed with non-issue committed suicide out of frustration by putting herself on fire.

Learned counsel for the accused-appellant has further contended that at the time of occurrence, the accused-appellant was not at home and he cannot say as to how his wife committed suicide. As soon as he came to know about the incident, he went to the police station and informed of the incident besides informing parents of the deceased by sending a telegram. There is no clinching and worthy evidence eliciting illicit relationship between the accused-appellant and Shashibala.

Learned counsel for the accused-appellant has further contended that the prosecution has to prove and establish that the house in question where the death took place, was exclusively under control of the accused-appellant. But this particular aspect has not been proved by the prosecution. In such view of the matter, the provision enunciated under Section 106 of the Indian Evidence Act, 1872, (hereinafter referred to as 'the Act') was not applicable in the present case. The informant was present on the date of the occurrence and the parents of the victim also came to the spot after they were informed by the accused-appellant. They resided with the accused-appellant at his home for 3-4 days but no report was lodged by them. It was only after the informant went back to home and he was instigated by Hemlata Pandey then he lodged the first information report belatedly on 28.07.1989. The prosecution has not been able to prove its case beyond reasonable doubt. The prosecution witnesses are interested and partisan witnesses and their testimony on the whole does not inspire confidence. There are material contradictions appearing in their testimony.

Per contra, it has been submitted by learned Government Advocate that in this case, post mortem examination report indicates a different story that cause of death was asphyxia due to strangulation and hyoid bone fractured, was noticed in the post mortem examination report.

It is admitted case that the accused-appellant was residing in the room with his wife, which was exclusively in his possession. It is not a case that the room was being used by any other member of the accused family except the husband and wife. The house comprises a number of rooms/accommodations and the place of occurrence was located on the first floor of the house which was exclusively under possession of the accused-appellant.

It has been further submitted on behalf of the State that the accused-appellant has put a case that the deceased committed suicide and tried to take lame excuse, but this excuse stands exposed by disclosure made in the post mortem examination report Ext. Ka-2 to the extent that cause of death was due to asphyxia as a result of strangulation. Now it is up to the accused-appellant to prove and establish that at the time of occurrence, he was not present on the spot and someone else committed the crime and he was present at the relevant time of occurrence at his tubewell where he was informed of the occurrence.

It has been further added on behalf of the State that the accused-appellant was informed of the incident by his niece at his tubewell. His niece, but for reasons best known to the accused-appellant, was not produced before the trial court to prove and establish that particular material fact. Therefore, plea of alibi was cleverly taken by the accused-appellant but the bald plea does not help him in this case and the accused-appellant has failed miserably to prove and establish his absence on the spot. It was incumbent upon the accused-appellant to have produced his niece to establish his absence on the spot. Learned trial court has judiciously recorded conviction and has passed appropriate sentence.

We have also considered the rival submissions and taken into consideration rival claims. In view of above, the point for determination of this appeal specifically relates to fact whether the prosecution has been able to prove charge under Section 302 IPC beyond reasonable doubt and has sentenced condignly.

Genesis of the crime is reflected from the written report lodged by the informant Dinesh Kumar Mishra, uncle of the deceased Rajani when he lodged the first information report on 28.07.1989 at Police Station Kokhraj, the then within District Allahabad (now Kaushambi) wherein specific allegations have been made that the accused-appellant killed Rajani by setting her on fire on 10.07.1989.

We on careful perusal of testimony on record come to know that after the incident, some information was given at the concerned police station by the accused-appellant which was taken down at Serial No.25 of the General Diary at 2:30 p.m. However, relevant General Diary has been weeded out but on the information so given at the police station, follow up action was taken and inquest of dead body of Rajani was held under supervision of Tehsildar who prepared the same with help of Sub-Inspector Brijendra Singh Chauhan.

Bare perusal of inquest report Ext. Ka-8 reflects that at the time when the police and the Magistrate arrived on the spot, they got door of the room opened then they found dead body lying on the floor of the room at the back posture, covered by old Dhoti (Sari). Signs of burning were also found on the dead body with face burnt and tongue protruded. How the dead body was covered with 'Dhoti' remains a mystery. If the door was broken open then obviously such a situation of the body as covered with 'Dhoti' could not have been seen.

Here one thing is worth consideration that the accused-appellant took plea that door of the concerned room where the deceased Rajani committed suicide was bolted from inside and the same was broken open. But nothing of the sort emanates from perusal of inquest report that the door was either broken open on the spot or was found broken on the spot, instead it mentions fact that door of the room was opened. It means that theory of breaking open the door of the room is false plea raised by the accused-appellant although it has got no such particular relevance of the actual happening. However, this plea in itself is indicative of fact that the accused has tried to make it a case that the door was bolted from inside, whereas, it is not so in fact.

At the very outset, before recording our appreciation on merit of the case qua evidence on record vis-a-vis circumstances, we may observe that it is a case fully based on circumstantial evidence. There is no eyewitness account testimony of the occurrence. No one in fact saw the occurrence but the incident came to the knowledge of the police concerned only after it had happened. Obviously, post mortem examination report Ext. Ka-2 and testimony of the doctor suggest that cause of death was asphyxia due to strangulation. This way, theory of proposed suicide being committed by the deceased stands ruled out and the same becomes a case of homicidal death which requires due consideration by us.

Assuming it to be, that the deceased committed suicide or she was prone to committing suicide but post mortem examination report Ext. Ka-2 on record classifies cause of death as a result of asphyxia due to strangulation. On this specific point, Dr. U.S. Sinha PW-4 who conducted autopsy on the dead body of the deceased Rajani, has noted 36% burn caused to the deceased Rajani and that, too, on upper part of the body only in form of extensive burn present only on the front of chest, neck, whole face and skull. No any other part of body sustained any burn injury. A portion of tuft hair on the back of skull was found unburnt.

On external examination, it was recorded, inter-alia that there was fracture of hyoid bone. Left and right lung congested. Heart chamber empty. The aforesaid area of the body was so badly affected that it was not possible to notice or to know about any sort of any ante mortem injury being caused on that limbs, therefore, the same could not be noted by the doctor.

It was also noted by the doctor that tongue protruded from mouth and was slightly burnt. A note has been appended to the post mortem examination report as well as in the examination of Dr. U.S. Sinha PW-4 that inquest report mentions magnitude of burn on the body of the deceased as covering entire gamut of the body, whereas, the doctor has confined burn area to the aforesaid limbs only totaling 36% burn. It means that observation made during preparation of inquest that burn was caused to the whole body, was per chance mistakenly noted. The note so appended to the post mortem report appears correct.

The point is that cause of death is not burn injury in question. Hyoid bone fracture has been noticed and kerosene oil smell was also felt by the doctor at the time of autopsy. This factual aspect of the case is indicative of the two things; one that theory proposed for committing suicide by the deceased is not in line with injury caused to the deceased. How and under what circumstances a person who is committing suicide will set himself or herself on fire in such a partisan manner that fire caused burn only on upper limbs of body widely extended on chest, hand and face etc. It is surprising that unburnt tuft on the back of skull was also noted by the doctor.

Secondly; such mode of committing suicide cannot be expected of normal human conduct. Therefore, theory of suicide cannot be believed and imagined that way on its face and particularly, when cause of death was shown by the doctor due to asphyxia. This very cause of death in shape of asphyxia due to strangulation comes in, in the way between culpability of the accused-appellant and homicidal death of the deceased Rajani.

The point is that the accused-appellant claims his absence from the spot and he states in his examination under Section 313 Cr.P.C. that at that relevant point of time, he was at his tubewell and he was informed of the incident by his niece at the tubewell then he came back to the room in question which was bolted from inside and the same was broken open in the presence of Tehsildar.

Bare perusal of inquest report Ext. Ka-8 shows that on arrival of the police, door of the room on the upper portion of the house was opened. It does not indicate that the room was broken open and dead body was covered by some old Dhoti (Sari). It means the statement given under Section 313 Cr.P.C. by the accused-appellant at the time of his examination by the trial court was motivated and false. There is no whisper that Tehsildar broken open door of the house in question. The statement was only given on imagination that door of the room was bolted from inside. However, there was no such fact existing on the spot as claimed by the accused. It cannot be said that door of the room was bolted from inside.

Next mere statement taking plea of alibi that the accused-appellant was not present on the spot at the time of occurrence, in absence of any corroborating and supporting testimony, becomes bald statement which is devoid of any legal force. Therefore, import of claim of alibi is not established. A better piece of testimony could have been adduced by producing niece of the accused-appellant who informed of the incident to the accused-appellant at the tubewell. But claim made by the accused-appellant on information being given to him by his niece remains an imagination and appears to be a devise to take false plea for escaping explanation of the real existing situation on the spot. Thereby genesis of the crime has been tried to be concealed.

It is not reflected from testimony of the prosecution witnesses of fact that room in question, where the incident took place, was also used by any other family members of the accused-appellant. Admittedly, room was situated on the upper portion of the house and the other members of the house were residing on the ground floor. This much picture is clear from perusal of the site plan Ext. Ka-3. This way, contention raised on behalf of the accused-appellant that it cannot be said that the room in question was exclusively under control and possession of the accused-appellant cannot be accepted, as such.

The entire gamut of consideration is obvious to the extent that all the circumstances indicate that it is a homicidal case where death of the deceased Rajani has been caused by strangulation. There is no doubt about this specific cause of death. As measure of particular motive behind crime, we come across fact that some illicit relationship was stated to have been working as the motivating force for committing murder of the deceased Rajani.

The prosecution thrust on illicit relationship is covered from testimony of the prosecution witnesses of fact namely Subhadra Devi (PW-2) mother of the deceased and mother-in-law of the accused-appellant and Hemlata Pandey PW-3 who stands in relationship of 'Bua' (sister of father of deceased) with the deceased Rajani. Both the witnesses have categorically and ambiguously testified on fact of existing illicit relationship between the accused-appellant and Shashibla. Both the aforesaid witnesses have claimed that they were informed by the deceased herself about existing illicit relationship between the accused-appellant and Shashibala.

Testimony of Hemlata Pandey PW-3 on the point of existing relationship is directly connected with information given by the deceased herself to this witness. She has testified in his examination in chief on page 21 of the paper book that she had met her niece on 08.07.1989 in the field when she had gone to ease out herself where she was told by the deceased Rajani that her husband Vinod Kumar is having illicit relationship with Shashibala and Vinod Kumar did not come to her but he resides with Shashibala and he is trying to kill the deceased Rajani. This witness pacified her. On this aspect, nothing adverse of any sort has emerged in cross-examination which may impeach the aforesaid innocuous testimony on point of existing illicit relationship. Even the Investigating Officer has testified on the statement having been given by this witness to him qua point of existing illicit relationship between the accused-appellant and Shashibala. On page 31 of the paper book in cross-examination, the Investigating Officer Prem Prakash PW-5 has testified that Hemlata Pandey PW-3 was told (about illicit relationship) by the deceased Rajani in the evening of 08.07.1989. However, she did not tell any exact time and she had told about fact of illicit relationship on 09.07.1989 in the morning at 8:00 a.m. A suggestion was made to Hemlata Pandey PW-3 that she is inimical towards Shashibala because some litigation was going on between Shashibala and herself. Shashibala happens to be 'Jethani' of this witness. The husband of Shashibala had expired way back in the year 1978. This witness along with her husband were trying to grab property of Shashibala. May be that some litigation was going on between two sisters-in-law where some property matter was in dispute, but that by itself is not sufficient to create doubt on the testimony of Hemlata Pandey and its evidentiary value on point of existing illicit relationship.

We also come across testimony on fact of existing illicit relationship from scrutiny of testimony of Subhadra Devi PW-2, mother of the deceased. She has stated that she was also informed by her daughter (deceased) about such existing illicit relationship. That way, testimony of Hemlata Pandey PW-3 on point of such subsisting illicit relationship cannot be said to be her own afterthought and it cannot be said that she deliberately improved on her testimony because her testimony tends to directly affect the accused-appellant and he will be answerable for that and it nowhere touches Shashibala on point of culpability of the case.

At this stage, affirmation of such particular fact (on illicit relationship) has got reliable corroboration from testimony of Subhadra Devi PW-2. Therefore, fact of illicit relationship between the accused-appellant and Shashibala is found to be proved to a reasonable extent. That way, it may be considered to be working as the prime motive for eliminating the deceased Rajani from the scene.

We have already discussed that theory of suicide being committed by the deceased is thrown out of reference by cause of death noted by Dr. U.S. Sinha PW-4, in the post mortem examination report, as proved before the trial court. Fact is that it cannot be said that burn injury caused on the body of the deceased had engulfed the entire body and burn was confined only to the upper limbs of the body and that, too, tuft hair on the back of the skull of the deceased was unburnt. This aspect positively, inter-alia, shows an attempt to commit suicide as such, is not probable under circumstances of the case.

Now we leave aside and discard theory of suicide and come to the point of cause of death. No doubt, post mortem examination report Ext. Ka-2 indicates cause of death asphyxia due to strangulation. The point is that the accused-appellant has taken plea of absence from the spot but which plea has not been established under facts and circumstances of the case because niece who is stated to have informed of the incident to the accused-appellant has not been produced before the trial court.

Therefore, the fact that the accused-appellant was informed of the incident at his tubewell by his niece remains an imaginative and ambiguous statement with no evidentiary value. In view of missing factual and circumstantial indication about fact of absence of the accused-appellant from the spot, it was desirable and incumbent on the accused-appellant to have come out with some sort of testimony or description which would have made fact of his absence on the spot probable and natural. But no worthy testimony or description has been put forth by the accused-appellant.

We have carefully scanned the entire record and also the entire facts and circumstances of the case but we could not come across any such fact, circumstance or testimony which may create a situation in consonance with claim of plea of alibi when the accused claims that he may at the relevant point of time away from the place of occurrence.

It is pristine principle of criminal jurisprudence that principle of alibi, if not, established from facts and circumstances of the case then it would have to be proved within reasonable degree by a person who exclusively claims plea of alibi. Here in this case, plea of alibi remains under dark shadow and not established either by any cogent testimony or by any circumstance of this case. Therefore, absence of the accused-appellant from the spot cannot be taken to be correct version of the accused-appellant. The deceased Rajani was his wife. Now it is up to him to show as to how strangulation was caused to her.

It is surprising that the accused-appellant claimed himself to have been absent on the spot at the time of occurrence, still he is propounding theory of suicide committed by the deceased. Pertinent question arises as to how he came to know about fact that the deceased Rajani had committed suicide. This particular aspect also shows direct and implicit complicity of the accused-appellant in causing burn injury to the deceased. Because the cause of death is not due to burn injury but asphyxia due to strangulation.

It is established in this case that death of the deceased Rajani has resulted by strangulation. The death is homicidal and it cannot be said to be self-suffered. This way, the prosecution has been able to prove that motive behind the offence was existing illicit relationship between the accused-appellant and Shashibala. The accused-appellant being husband of the deceased Rajani will naturally be imputed with physical and constructive custody of his wife-deceased Rajani at the relevant time of the occurrence. That way, the prosecution has also proved cause of death in shape of asphyxia due to strangulation.

Now under these proven facts and circumstances of the case, nothing more can be expected of the prosecution and charge against the accused-appellant stands reasonably proved and it can be summed up at this stage that it was the accused and accused alone who was the perpetrator of the crime to the exclusion of all others. Here chain of circumstances is coherently and conclusively established which leave aside every hypothesis of innocence of the accused-appellant. The accused-appellant has very cleverly tried to invent theory of suicide in order to escape clutches of law which attempt has been abortive.

When the prosecution has successfully established guilt of the accused it would not mean that he has been left with no choice but to kiss the rod but he can still take shelter of provision contained under Section 106 of the Act and may explain especial fact which he asserts to have been working as primordial cause behind the occurrence.

We have already observed that it is a case based on circumstantial evidence because no one saw the occurrence, therefore, varied circumstances of this case when taken together do render the accused-appellant amenable to the happening as a whole. Relationship of the accused-appellant with the deceased is one that of wife and husband and the wife will be deemed to have been in custody of the husband and presence of the husband on the place of occurrence is explicit fact. It is not a case here that the accused-appellant has failed to prove his plea of alibi, therefore, his presence was imputed on the spot as that would have been against established tenets of criminal jurisprudence. May be that the accused-appellant failed to prove his plea of alibi, but that alone would not be determinative of his presence on the spot and would ipso facto prove the guilt. Burden of proof always remains on the prosecution to prove guilt of the accused and this burden is consistent and constant.

Here in this case, each and every step has been explicitly and unerringly proved by the prosecution beyond reasonable doubt. The death in question is an admitted fact. The nature of death of Rajani has been proved to the hilt that it was homicidal death and not suicidal. Hyoid bone was fractured as has been noted by Dr. U.S. Sinha, PW-4 in the post mortem examination report. This negates theory of suicide being committed by deceased Rajani.

How fact of suicide being committed by the deceased Rajani came to the knowledge of the accused-appellant has not been elaborated and clarified. The accused-appellant has stated that he was informed of the incident by his niece, but this assertion remains confined to bald statement in absence of any cogent testimony or circumstance, giving credence to such situation. Motivating force has been ascribed to the fact of subsisting illicit relationship between the accused-appellant and Shashibala. The place of occurrence is upper portion of the room located on the first floor of the house. There is no evidence on record that the house in question was being used or possessed also by other family members except the husband and the wife (deceased).

In view of the above specific testimony and circumstance of this case, it becomes obligatory on the part of the accused-appellant to come out with reasonable explanation as to how the occurrence had taken place. Provision of Section 106 of the Act is attracted in such a case like the present one, because the occurrence will be imputed to have been especially within the knowledge of the accused-appellant. Section 106 of the Act exclaims that when any fact is especially within the knowledge of any person, burden of proving that particular fact is upon him. Now burden cast upon the accused-appellant to discharge onus of special knowledge has not been discharged even in the least by him. This being so, his non-explanation of the fact of strangulation and the occurrence intensifies fact of gravity of his culpability and his involvement in the commission of the crime.

Learned counsel for the accused-appellant has placed reliance on various cases on the point of applicability of Section 106 of the Act and has claimed that no person can be convicted only by invoking provision of Section 106 of the Act unless the prosecution has reasonably established guilt against the accused. It is only when a charge has been reasonably proved against the accused-appellant beyond reasonable doubt that the accused-appellant will be required to discharge burden cast upon him by virtue of express mandate contained in Section 106 of the Act.

Our discussion made hereinabove extensively and elaborately deals with the aforesaid contention which by itself suggest that in this case, the prosecution has reasonably proved beyond all reasonable doubts guilt and charge against the accused-appellant and the only escape route open to the accused-appellant is available in shape and form of reasonable explanation by virtue of dictum contained in Section 106 of the Act but the accused has failed to offer reasonable explanation to the fact of strangulation caused to the deceased due to which she died of asphyxia. The accused-appellant failed to account for strangulation.

Here a holistic view of the circumstances, testimony and facts on record pegs guilt around the accused and accused only because he was in custody of his wife at the time of her death and his presence on the spot cannot be ruled out merely on the basis of his bald statement unless supported by cogent testimony or conspicuous circumstances. In this case, no such evidence or circumstance exists that may incarnate presence of the accused-appellant somewhere else than on the place of occurrence. Consequently, the contentions raised by the learned counsel for the appellant to the extent that the appellant was not present on the spot at the time of the incident, are devoid of force and the various grounds urged in support of the appeal are not sustainable.

Learned trial court has taken correct view of the fact, circumstances and evidence on record and has recorded just finding and has rightly sentenced the appellant to life imprisonment which order of conviction and sentence needs no interference by this Court. Judgment of conviction and sentence dated 08.05.1995 passed by Additional Sessions Judge (Special Judge) Allahabad, in Sessions Trial No.68 of 1991 against the appellant is upheld by us.

In view of above, the appeal lacks merit and is dismissed. The appellant is already in jail. He shall serve out his sentence.

Let a copy of this judgment be certified to the trial court for necessary information and follow up action.

Order Date :- 31.03.2017 rkg

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