Sunil Kumar vs State Of U.P. on 27 April, 2022

[Cites 29, Cited by 0]

Allahabad High Court

Sunil Kumar vs State Of U.P. on 27 April, 2022

1. The present appeal has been preferred by the appellant against the judgment of conviction, dated 17.12.2019, and order of sentence, dated 19.12.2019, passed by Additional Sessions Judge/Fast Track Court No.1, Etawah in Sessions Trial No. 17 of 2019 (State Vs. Sunil Kumar) whereby the appellant has been convicted under Section 302 IPC and sentenced to imprisonment for life with fine of Rs. 50,000/- coupled with a default sentence of five months.

INTRODUCTORY FACTS

2. The FIR of the present case was lodged by Chhottey Lal (PW-1) on 3.10.2018, at about 13.59 hours, as Case Crime No.245 of 2018 at Police Station Sefai, District Etawah, under Sections 304-B, 498-A, 201 IPC and Section 3/4 of Dowry Prohibition Act, against the appellant and five others.

3. The prosecution story in the FIR is as follows: the marriage of the appellant was performed with the daughter of informant on 17.4.2014. In the marriage, informant gave Rs. 4,00,000/- (Rs. Four Lacs) cash and a motorcycle to the appellant and his family members along with other items worth Rs.2,00,000/- (Rs. Two Lacs) yet, appellant and his family members were not satisfied and they demanded a car as an additional dowry. When the informant disclosed his inability to give a car, appellant and other accused persons started harassing his daughter (deceased). Informant's daughter also gave information that if the demand is not fulfilled she will be murdered. Thereafter, on 12.9.2018, at about 10.00 AM, the informant received an information that in the night of 11.9.2018 due to non-fulfilment of the demand of additional dowry, his daughter has been murdered and her dead body has been disposed off. On getting the information, when the informant arrived at the matrimonial home of his daughter, along with other persons, neither his daughter nor the accused persons including the appellant were found. When the informant and his family members inquired, they came to know that after committing the murder of his daughter, dead body was put on Railway Track and from there, it was recovered by the Police.

4. It be noted that much prior to the lodging of the above-mentioned FIR, on 12.9.2018, at about 9.42 hours, an information was given by one Pradeep Kumar (not examined), Porter Railway Section, Sarai Bhupat, Jaswant Nagar, Etawah to the Police that a dead body of an unknown lady is lying on Railway Track which appears to be a consequence of train accident. On this information, Police arrived at Railway Section Sarai Bhupat, Jaswant Nagar, Etawah and at 10.15 am, on 12.9.2018, the inquest team proceeded to the spot. Inquest was completed by 13.00 hrs on 12.09.2018. Inquest report (Ext.Ka-7) was prepared by SI Mahendra Kumar (PW-6), PS Jaswant Nagar, Etawah. Body was identified later.

5. After inquest proceedings, dead body was dispatched for autopsy. It be noted that though the inquest was conducted of an unknown body but autopsy was of the cadaver of Archana Yadav wife of Sunil Kumar which, as per autopsy report, was brought by CP-1026 Pankaj Kumar, P.S. Jaswant Nagar, Etawah.

6. The autopsy commenced at about 11.35 AM of 13.09.2018 and was completed by 12.05 PM. The autopsy surgeon (PW-3) noticed following ante mortem injuries on the body of the deceased:

"(i) Neck, face and head badly crushed and lacerated, some part of Head and face missing.

(ii) Multiple contusion present at chest and abdomen with underlying multiple ribs are fractured (both side).

(iii) Multiple contusion present at both upper limb with multiple underlying bone fracture.

(iv) Lacerated wound in size 10.0 cm X 6.0 cm present at right thigh region ankle joint with underlying bone fracture.

(v) Lacerated wound in size 6.0 cm X 4.0 cm present right ankle joint with underlying bone fracture.

(vi) Multiple contusion present at left lower limb with underlying bone fracture.

(vii) Both buttocks lacerated."

According to the Autopsy Surgeon, deceased died due to shock and haemorrhage caused by ante mortem injuries and the probable time of death was estimated to be a day and a half before the autopsy.

7. After registration of the FIR on 3.10.2018, investigation of the case commenced. During investigation, the Investigating Officer recorded the statement of witnesses and found that except the appellant (the husband of the deceased), implication of all other accused persons nominated in the FIR was false. Consequently, on 16.12.2018 charge sheet (Ext. Ka.6) was filed only against the appellant under Sections 304-B, 498-A IPC and Section 3/4 of Dowry Prohibition Act.

8. After submission of charge sheet, cognizance was taken and the case was committed to the Court of Session. Before the trial court, appellant pleaded not guilty and claimed trial. On 30.1.2019 trial court framed charges against the appellant under Sections 498-A and 304-B IPC and Section 4 of Dowry Prohibition Act. On the same day i.e. 30.1.2019 an alternate charge under Section 302 IPC was also framed against the appellant.

9. During trial, prosecution examined six witnesses. PW-1 (the informant), father of the deceased, and PW-2, were witnesses of fact, whereas, rest were formal witnesses. After examining the prosecution witnesses, trial court recorded the statement of appellant under Section 313 Cr.P.C. and convicted the appellant under Section 302 IPC. However, the appellant was acquitted under Section 498-A, 304-B IPC and Section 4 of Dowry Prohibition Act.

PROSECUTION EVIDENCE

10. Chhote Lal (PW-1). He is the father of the deceased Archana and had lodged the FIR. PW-1 stated that on 17.4.2014 the marriage of his daughter was solemnised with the appellant; that in the marriage, lot of dowry was given; that after marriage, his daughter (the deceased) visited PW-1's house often, but she made no complaint regarding demand of additional dowry or with regard to her harassment by the appellant and his family members i.e. deceased's in-laws; that, before the incident, her daughter had called PW-1 and when he arrived at her matrimonial home on 12.9.2018, he came to know that his daughter (deceased) had gone somewhere in the night; that after hectic search, the dead body of his daughter was found on a Railway Track. PW-1 admitted that in respect of the incident he had submitted a report by putting his signature on the application. PW-1 proved the written report as Ext.Ka-1.

In his cross-examination, PW-1 stated, his daughter Archana (deceased) was mentally retarded. She used to sleep-walk and in that state she used to go anywhere from the house. PW-1 stated that his son-in-law (appellant) had informed him that during sleep his daughter Archana (deceased) had gone somewhere and is not traceable. PW-1 stated that when he along with others arrived at Railway Station then, on Railway Track, the dead body of Archana (deceased) was found. Thereafter, the police arrived and inquest report (Ext. Ka-7) was prepared. PW-1, in his cross-examination, also stated that the written report (Ext. Ka-1), which was given to SSP, was not read over to him. He reiterated that neither the appellant nor any member of his family made a demand for dowry. PW-1 also resiled from his statement recorded under Section 161 Cr.PC and stated that he never gave any such statement.

When the Court put some questions to PW-1, he stated that on Tuesday night, his daughter had called him, as a result, he went to her matrimonial home on Wednesday and reached there at about 11.00 AM. Then he did not find his daughter. The in-laws of his daughter (deceased) had told PW-1 that her daughter had left at about 5.00 AM in the morning and has gone somewhere. PW-1 further stated that he did not receive any phone call from her matrimonial home. PW-1 further stated that the deceased was a chronic patient of stomach pain though, otherwise, she did not have any ailment. It was only due to stomach pain that she used to walk and go anywhere. PW-1 admitted that her daughter's in laws had given her medical treatment at Jaswant Nagar.

11. Jai Prakash (PW-2). He was the mediator of the marriage. He stated that on 17.4.2014 the marriage of the deceased was performed with the appellant. He reiterated that the deceased used to sleep-walk and that there was no demand of dowry from the side of the appellant. At this stage, he was declared hostile by the prosecution.

During cross-examination by prosecution, PW-2 resiled from his earlier statement recorded under Section 161 Cr.P.C. and stated that he never gave such a statement to the Investigating Officer.

In his cross-examination at the instance of the accused-appellant, PW-2 stated that the deceased used to sleep-walk and even before her marriage she was treated for that by her father, and after marriage was given treatment by her husband Sunil (appellant). PW-2 stated that she (the deceased) was happy in her matrimonial home and on 11.9.2018 appellant and his father had informed PW-2 that Archana (deceased) had gone somewhere in sleep and was untraceable. PW-2 stated that next day he received information that she had met with a rail accident.

After the cross-examination of PW-2 by the appellant, the Trial Court had put questions to him. On questions put by the Trial Court, PW-2 stated that though he was the mediator of the marriage but he does not remember whether he informed appellant's father (Agya Ram) that the deceased (Archana) used to sleep-walk. He stated that he has no information whether the deceased was offered treatment. He stated that when he met Agya Ram (appellant's father), after she had disappeared, he was told that she has left with a Lota (large tumbler).

12. Dr. Rakesh Yadav (PW-3). He conducted the autopsy of the body of the deceased. PW-3 stated that on 13.9.2018 the autopsy commenced at 11.35 AM and was over by 12.05 PM. He proved the autopsy report and the ante mortem injuries noted therein which we have already noticed above. The Autopsy report was marked Ext.Ka-2. He estimated the time of death about one and a half day before autopsy.

In his cross-examination, Autopsy Surgeon (PW-3) stated that ante mortem injuries sustained by the deceased could be a result of train accident.

13. Constable Mamta (PW-4). She prepared the Chik report (Ext.Ka-3) and GD of Kayami Mukadama (Ext. Ka-4).

14. Nirmal Kumar Bisht (PW-5). He is the Investigating Officer of the case. PW-5 stated that after registration of the FIR, he started the investigation and recorded the statement of witnesses and after perusing the inquest report (Ext. Ka-7) and autopsy report (Ext. Ka-2), submitted charge-sheet (Ext. Ka-6) on 06.12.2018 only against appellant under Section 304B, 498A IPC and 3/4 Dowry Prohibition Act. No charge-sheet was filed against rest of accused persons who were also named in the FIR. During investigation PW-5 also prepared site plan (Ext. Ka-4) and (Ext. Ka-5). Ext. Ka-5 was the site plan of the place from where the dead body of the deceased was found i.e. railway track.

In his cross-examination, PW-5, the Investigating Officer admitted that the place of incident was a railway track and the deceased died due to train accident. He denied the suggestion that he did not record the statement of Chhote Lal.

15. S.I. Mahendra Kumar Gautam PW-6. He had prepared the inquest report (Ext. Ka-7). He stated that he prepared the inquest report (Ext. Ka-7) of an unknown body as its identity was not known at that time.

In his cross-examination, PW-6 stated that at 9.45 PM an information was received at Police Station that a person has met with a train accident. This information was given by a Railway Employee. Inquest commenced thereafter, at 10.15 PM and was over by 11.30 PM. PW-6 further stated that the dead body was lying on the railway track and by the time of inquest, dead body could not be identified. Note: The timing of the inquest disclosed by PW-6 is apparently incorrect as from the record, it appears, the inquest was conducted in the morning and information was received at 9.42 hours not 9.45 PM. It appears the witness mistook 9.42 AM as 9.45 PM and likewise the completion time was also mistaken.

16. After recording the statement of prosecution witnesses, the trial court recorded the statement of appellant under Section 313 Cr.P.C., who denied all the allegations. In reply to question no.4, appellant stated that his wife (deceased) died due to train accident. In reply to question no. 10, appellant stated that his wife Archana was mentally retarded and she used to sleep-walk and was provided medical treatment too, and this fact was known to her family members and it appears that in sleep she went away and met with train accident.

17. Trial court acquitted the appellant of the charges under Sections 498A, 304B IPC and 4 D.P. Act but convicted him under section 302 IPC by taking the aid of the provisions of section 106 Evidence Act.

18. We have heard Sri Ajay Vikram Yadav, learned counsel for the appellant and Sri J.K. Upadhyay, learned AGA assisted by Sri Awadhesh Kumar Shukla, Brief Holder for the State.

Submissions on behalf of the appellant

19. Learned counsel for the appellant submitted that the present case is based on circumstantial evidence. The prosecution miserably failed to prove the guilt of appellant and trial court on the basis of Section 106 of Evidence Act wrongly convicted the appellant. He submitted that there is no evidence on record to indicate that the appellant was seen with the deceased at or about the place of incident. There is no evidence that the deceased was murdered at home and her body was left on the Railway Track. Since the allegation of harassment in connection with dowry is not proved, no benefit of presumption would be available to the prosecution and since death has not occurred within the house, burden cannot be placed upon the appellant by taking recourse to Section 106 of the Evidence Act.

20. He placed reliance on the judgment of Apex Court in case of Satye Singh and another Vs. State of Uttarakhand reported in 2022 SCC Online SC 183. He further submitted that even if the explanation given by the appellant is found false, conviction cannot be recorded as the chain of circumstances is not complete and the same cannot be completed with the aid of Section 106 of Evidence Act. Learned counsel for the appellant vehemently argued that the trial court wrongly shifted the burden upon the appellant without considering that prosecution did not prove the presence of appellant at or near the place of occurrence on or about the time of the death of deceased. He further submitted that inquest report (Ext. Ka-7) clearly shows that an information in respect of train accident was given by one Pradeep Kumar, Porter Railway Station Sarai Bhoopat, Jaswant Nagar, Etawah that deceased died due to train accident and the inquest was also conducted near the railway track and when police arrived on the information then the body of the deceased was lying on the railway track. Learned counsel for the appellant further contended that testimony of autopsy surgeon Dr. Rakesh Yadav (PW-3) shows that the deceased died due to train accident. Further, the autopsy report does not speak of post-mortem injuries but of ante-mortem injuries only. Thus, it is not a case where the deceased was killed elsewhere and dumped on the railway track. Learned counsel for the appellant also submitted that the FIR of the present case was lodged after more than three weeks and there is no explanation given by the prosecution for this delay, which suggests that the informant (PW-1) and other family members of the deceased were satisfied that the deceased died due to train accident.

Submissions on behalf of the State

21. Per contra, learned AGA submitted that as, during trial, the informant (PW-1) did not support the story of demand of dowry and harassment as alleged in the FIR, the appellant was not convicted under Section 498A, 304B IPC and 3/4 D.P. Act but, as there was ample circumstantial evidence against the appellant to indicate that he committed the murder of his wife (deceased), the appellant was justifiably convicted under section 302 IPC. Learned AGA submitted that appellant had not stated that when his wife (the deceased) left her matrimonial home, appellant was not present at home. Rather, his explanation shows that he was present at home. Learned AGA argued that in the judgment passed by the trial court, it is mentioned that the railway track was far away from the matrimonial home of the deceased, therefore, it was impossible for the deceased to sleep-walk that distance. Learned AGA further submitted that the explanation offered by the appellant, apparently, is false and it provides an additional link, which can be used against him and, therefore, the trial court rightly, with the aid of Section 106 of Evidence Act, convicted the appellant in the present case.

Trial court findings

22. The Trial Court found that there was no medical evidence on record to show that the deceased, the wife of appellant, was mentally retarded or that she used to sleep-walk. Consequently, it disbelieved the defence version that the deceased died due to train accident. It observed that the injuries sustained by the deceased appears to be not a result of train accident but appears to be a case where, after committing the murder of deceased, her body was put on the railway track. Trial court observed that as the appellant and the deceased were husband and wife, it will be presumed that till 11 PM in night they were together and if the deceased walked out during sleep, then the appellant could have made an effort to stop her, or to have searched for her, when she was not found. Hence, Section 106 of Evidence Act was applicable. Consequently, by shifting the burden upon the appellant to explain as to how his wife came to be lying on the railway track, which was about 15 kilometres away from his home, the trial court convicted the appellant by taking into account his conduct.

Analysis

23. In the present case, there is no eye witness account. The entire case is based on circumstantial evidence. The law with regard to conviction based solely upon circumstantial evidence is settled by the Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116 where, in paragraph 153, it was observed:-

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 where the following observations were made:

"19. .....Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

24. Recently a three-judge Bench of the Apex Court in case of Shatrughna Baban Meshram Vs. State of Maharashtra (2021) 1 SCC 596 after discussing and following the decision in the case of Sharad Birdhichand Sarda (supra), in para 42, observed:-

".....42. Before we deal with the second submission on sentence, it must be observed that as laid down by this Court in Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116], a case based on circumstantial evidence has to face strict scrutiny. Every circumstance from which conclusion of guilt is to be drawn must be fully established; the circumstances should be conclusive in nature and tendency; they must form a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused; and such chain of circumstances must be consistent only with the hypothesis of the guilt of the accused and must exclude every possible hypothesis except the one sought to be proved by the prosecution. The decision in Sharad Birdhichand Sarda V. State of Maharashtra [(1984) 4 SCC 116] had noted the consistent view on the point including the decision of this Court in Hanumant v. State of M.P. [1952 SCR 1091] in which a bench of three judges of this Court had ruled (AIR pp 345-46, para 10):-

"10. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

25. Bearing in mind the legal principles noticed above, we shall now proceed to evaluate the evidence. In the present case, according to the prosecution, in the night of 11.9.2018 the deceased (wife of appellant) had called her father. When her father reached her house on 12.09.2018 he got information that she has gone somewhere. In the meantime, on 12.9.2018 at about 9:42 hours, her dead body was found on a railway track of which information was given to the police, which was followed by inquest. As there is no direct evidence of murder, to prove the appellant guilty for murder, the prosecution had to prove, either by circumstantial evidence or direct evidence, that either the deceased was killed at home and kept on the railway line or she was carried alive up to the railway track by the accused and pushed before a running train or forcibly laid on the track either after assaulting her or making her unconscious. In either scenario, the prosecution would have to prove the presence of the appellant at, or near, the place of incident i.e. Railway Track from where dead body was recovered at the relevant time, or that the appellant was seen carrying the body of the deceased or leaving the house with the deceased at or about the probable time of the incident so as to build a case on the last seen theory. Importantly, here the prosecution has failed to prove the motive for the crime therefore, the probability of foul play at the instance of the accused cannot be presumed. Further, the possibility of the deceased leaving her matrimonial home on her own has not been excluded by the prosecution evidence. Notably, there is no evidence that the deceased could not have left her matrimonial house on her own. It is neither the prosecution case nor there is any evidence that she was confined to bed and could not have gone out on her own without the knowledge of the accused-appellant.

26. There is no shadow of doubt that the dead body of deceased was found on or about the railway track and information of it was given to the police by Pradeep Kumar (not examined), a Porter of Railway Station Sarai Bhoopat, Jaswant Nagar, Etawah. The information was with regard to a train accident. This information was given at about 9.42 hours on 12.09.2018 and on this information, police arrived at 10.15 hours. Inquest report (Ext. Ka-7) shows that police removed the body of the deceased from the railway track and conducted the inquest proceedings. The report of autopsy, which was conducted at or about noon of 13.09.2018 estimated that the deceased could have died a day and a half before, which means that she could have died around wee hours of 12.09.2018. Thus, the probability of the deceased leaving the house early morning of 12.09.2018, following the night of 11/ 12.09.2018, is high. In this kind of a scenario, adverse inference drawn by the trial court from the conduct of the appellant as to why no information was lodged by the appellant about his wife having gone missing since night, does not appear justified. Notably, at 9.42 hrs of 12.09.2018 (vide column no.1 of inquest report -Ex. Ka-7) information came to the police station from a railway employee about a lady having met with a rail accident and, thereafter, from the testimony of PW-1, father of the deceased, it appears, PW-1 got information same day that his daughter has gone missing and later, perhaps, on the same day, the body was identified. This we say so, because the autopsy is not of an unidentified body. In these circumstances, in our considered view, there was no occasion for the trial court to draw adverse inference against the appellant for not making a prompt report of his wife having gone missing.

27. What is important in the case at hand is that according to PW 3, the autopsy surgeon, the injuries found were ante-mortem. PW-3 does not at all state that the injuries were post-mortem. Rather, PW-3 stated that the injuries sustained by the deceased could be result of a train accident. In fact, testimony of autopsy surgeon (PW 3) clearly shows that death of deceased was a result of a train accident. Importantly, prosecution led no evidence to prove that the deceased died a homicidal death in her matrimonial home. In that scenario, the trial court's observations that deceased was kept on the railway track have no support from medical evidence or other evidence. These observations are therefore, purely conjectural. Notably, prosecution produced no evidence to prove the presence of appellant near the railway track on or about the time of accident. Further, there was no evidence that the appellant was seen by any one leaving the house with the deceased (dead or alive) in the night. Most importantly, the prosecution led no evidence to prove a case of dowry death therefore, the benefit of presumption that might otherwise have been available to the prosecution by virtue of section 113-B of the Evidence Act was not available here. Hence, the burden squarely fell upon the prosecution to prove the charge of murder either by direct evidence or by circumstantial evidence. Admittedly, there is no direct evidence and the golden rule of circumstantial evidence is that there must be a chain of circumstances so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused; and such chain of circumstances must be consistent only with the hypothesis of the guilt of the accused and must exclude every possible hypothesis except the one sought to be proved by the prosecution. In the instant case, the proven circumstances are as follows: (i) the deceased was married to the appellant; (ii) in the night before the incident she was with her husband (appellant); (iii) that in the morning at 9.42 hours, she was reported to be a victim of train accident several kilometres away from her matrimonial home; and (iv) that autopsy suggested that she died in a train accident as being run over by the train. These circumstances do not form a chain so complete that they exclude all hypotheses consistent with the innocence of the appellant. The alternative hypotheses, inter alia, are: (i) the deceased might have left her matrimonial home in the night while others were sleeping probably to end her life, or (ii) she might have some ailment, as is the version of the prosecution, that she used to have severe stomach ache and be restless in the night, and, therefore might have thought it appropriate to end her life and, because of that, might have left the house in the darkness of night or wee hours of the morning when no body could notice her leaving the house. Notably, the autopsy report (Ext. Ka-2) and the statement of the autopsy surgeon (PW-3) and inquest report (Ext. Ka-7) clearly proves that deceased died on the railway track due to train accident. Thus, the probability of her death being accidental or suicidal are much higher than it being homicidal. No doubt, had the necessary ingredients of the applicability of the presumptive clauses of section 113-B or 113-A of the Evidence Act been proved, things might have been different. But, here, for lack of evidence in that regard, the trial court has acquitted the appellant of the charge under section 304-B and 498-A IPC. Even demand of dowry could not be proved. Thus, there was no scope for the trial court to act on assumptions and presumptions.

28. Now, we shall examine whether the conviction of the appellant could have been sustained with the aid of section 106 of the Evidence Act. In respect of conviction of a person on death of his or her spouse due to injuries, the Supreme Court in the case of Shivaji Chintappa Patil Vs. State of Maharashtra, reported in 2021 (5) SCC 626, in paragraph 23, observed:-

"23. It could thus be seen, that it is well-settled that Section 106 of the Evidence Act does not directly operate against either a husband or wife staying under the same roof and being the last person seen with the deceased. Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof would lie upon the accused."

29. Further, in the case of Satye Singh and others Vs. State of Uttarakhand 2022 SCC Online SC 183, on which reliance was placed by learned counsel for the appellant, after analysing the previous decisions, in respect of applicability of Section 106 of Evidence Act, the Supreme Court, in paragraph 16, observed:-

"16. Applying the said principles to the facts of the present case, the Court is of the opinion that the prosecution had miserably failed to prove the entire chain of circumstances which would unerringly conclude that alleged act was committed by the accused only and none else. Reliance placed by learned advocate Mr. Mishra for the State on Section 106 of the Evidence Act is also misplaced, inasmuch as Section 106 is not intended to relieve the prosecution from discharging its duty to prove the guilt of the accused. In Shambu Nath Mehra vs. State of Ajmer, AIR (1956) SC 404, this court had aptly explained the scope of Section 106 of the Evidence Act in criminal trial. It was held in para 9:

"9. This 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 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 accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. Emperor [AIR 1936 PC 169] and Seneviratne v. R. [(1936) 3 All ER 36, 49]."

30. The Apex Court in Nagendra Sah Vs. State of Bihar (2021) 10 SCC 725 observed in paragraphs 22 and 23 as:-

"22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the Court can always draw an appropriate inference.

23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused."

31. Further, in the case of Shivaji Chintappa Patil (supra) in paragraph no. 25 it was observed:-

"25. Another circumstance relied upon by the prosecution is, that the appellant failed to give any explanation in his statement under Section 313 Cr.P.C. By now it is well-settled principle of law, that false explanation or non-explanation can only be used as an additional circumstance, when the prosecution has proved the chain of circumstances leading to no other conclusion than the guilt of the accused. However, it cannot be used as a link to complete the chain. Reference in this respect could be made to the judgment of this Court in Sharad Birdhichand Sarda (supra)."

32. In Reena Hazarika Vs. State of Assam: (2019) 13 SCC 289, in paragraph 9, the Supreme Court held "....in a case of circumstantial evidence the prosecution is required to establish the continuity in the links of the chain of circumstances, so as to lead to the only and inescapable conclusion of the accused being the assailant, inconsistent or incompatible with the possibility of any other hypothesis compatible with the innocence of the accused. Mere invocation of the last seen theory, sans the facts and evidence in a case, will not suffice to shift the onus upon the accused under Section 106 of the Evidence Act,1872 unless the prosecution first establishes a prima facie case. If the links in the chain of circumstances itself are not complete, and the prosecution is unable to establish a prima facie case, leaving open the possibility that the occurrence may have taken place in some other manner, the onus will not shift to the accused, and the benefit of doubt will have to be given."

33. In State of Rajasthan Vs. Kashi Ram, (2006) 12 SCC 254, the prosecution case was that the accused had killed his wife and two daughters on the intervening night of 03.02.1998 and 04.02.1998 and thereafter, after locking the door of the house from outside, disappeared. The FIR was lodged on 06.02.1998 by a cousin of the wife of the accused after the door of the house was broke open and bodies of the wife and two daughters of the accused were found inside the house. The FIR was lodged by narrating the background facts as well as the reason for the crime. By leading evidence during trial, the prosecution could successfully establish that the wife and two daughters were strangulated; that the three deceased were last seen alive in the company of the accused on 03.02.1998 in their house; that the house was found locked on the morning of 04.02.1998 and continued to remain locked till it was opened after removing the door on 06.02.1998; that throughout this period the accused was not to be seen and he was arrested only on 17.02.1998; and that neither at the time of his arrest, nor before the court, accused gave any explanation. In these circumstances, reversing the order of acquittal recorded by the High Court and upholding conviction recorded by the trial court, the Supreme Court observed that whether an interference ought to be drawn with the aid of Section 106 of the Evidence Act is a question which must be determined by reference to proven facts. It was observed that it is ultimately a matter of appreciation of evidence and, therefore, each case must rest on its own facts. After observing as above, the Supreme Court in paragraph 23 of its judgment, clarified the law with regard to the provisions of Section 106 of the Evidence Act in the following words:-

"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 compatiable 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 Naina Mohd."

34. In our view, the legal principle deducible from the decisions noticed above is that in absence of statutory exception to the contrary, the ordinary rule that applies to criminal trials is that the burden lies on the prosecution to prove the guilt of the accused, this burden is not in any way modified by the rule of evidence contained in Section 106 of the Evidence Act. It is only in cases where facts proved by the evidence give rise to a reasonable inference of guilt unless the same is rebutted and that such inference can be negatived by proof of some fact which can only be within the special knowledge of the accused, the court can take the aid of Section 106 of the Evidence Act to take the failure of the accused to adduce an explanation as an additional link, which completes the chain. But if the proven circumstances by themselves do not indicate that in all human probability it is the accused who has committed the crime in question and those proven circumstances do not exclude a reasonable ground for a conclusion consistent with the innocence of the accused, it would not be legally justified to absolve the prosecution of its burden to prove the guilt by taking recourse to the provisions of Section 106 of the Evidence Act. Ultimately, it is a matter of appreciation of evidence and, therefore, each case must turn on its own facts.

35. In the case at hand, as already noticed above, prosecution has failed to prove a chain of circumstances so complete that it may lead to an inescapable conclusion firstly, that it is a case of homicide and not of suicide or accident, and, secondly, there is no other person than the appellant who could have done the act. At the cost of repetition, it be observed that there is no evidence that the deceased died within her house and her body was carried for being placed on the railway track; there is no evidence that the accused appellant was seen leaving the house with the deceased in the early hours of the morning or in the night or was seen near the spot, with or without the deceased, at or about the relevant time, from where her body was recovered; and that there is no evidence that the appellant had a motive to kill his wife or had planned her murder. Notably, in the present case, initially, though, an allegation of demand of dowry was made but, during trial, neither the informant (PW-1) nor PW-2 stated that there was a demand of dowry or harassment of the deceased at the instance of the appellant. Thus, there was complete absence of a motive which, in a case based on circumstantial evidence, is an imporant link to the chain of circumstances. In the case of Anwar Ali and another V. State of Himachal Pradesh, (2020) 10 SCC 166, it was observed that absence of motive in a case based on circumstantial evidence is a factor that weighs in favour of the accused. In the instant case, as those vital links to the alleged chain of circumstances were missing, there existed no proven chain of circumstances as to point towards the guilt of the accused appellant by excluding all other hypotheses consistent with his innocence. Thus, in our considered view, trial court wrongly relied on the provisions of section 106 of the Evidence Act to hold the appellant guilty more so because the chain of incriminating circumstances itself was not complete pointing towards the guilt of the appellant by excluding all other alternative hypotheses consistent with the innocence of the accused appellant.

36. In addition to above, in the present case, the FIR was lodged with an inordinate delay of about three weeks. There is hardly any explanation for the delay in lodging the FIR. The incident is said to have occurred in the night of 11/ 12.9.2018. As per FIR and the statement of the informant (PW-1), PW-1 arrived at the spot (Railway Track) on 12.9.2018 but he lodged the FIR only on 3.10.2018, i.e., after about 21 days. Although mere delay in lodging the FIR is not sufficient to throw out the prosecution case if the delay is properly explained but non-explanation of delay creates suspicion in the mind of the Court. In Mukesh and another Vs. State (NCT of Delhi) (2017) 6 SCC 1, a three judges Bench of the Supreme Court, in para 50 of its judgment, observed as under:-

"50. Delay in setting the law into motion by lodging of complaint in court or FIR at police station is normally viewed by courts with suspicion because there is possibility of concoction of evidence against an accused. Therefore, it becomes necessary for the prosecution to satisfactorily explain the delay. Whether the delay is so long as to throw a cloud of suspicion on the case of the prosecution would depend upon a variety of factors. Even a long delay can be condoned if the informant has no motive for implicating the accused."

37. Again a three-judge Bench of the Supreme Court in the case of P Rajgopal and others versus the State of Tamil Nadu reported in AIR 2019 Supreme Court 2866 after relying the case of Mukesh and another (supra) in para-8 of its judgment, observed as under:

"8. Normally, the Court may reject the case of the prosecution in case of inordinate delay in lodging the first information report because of the possibility of concoction of evidence by the prosecution. However, if the delay is satisfactorily explained, the Court will decide the matter on merits without giving much importance to such delay. The Court is duty bound to determine whether the explanation afforded is plausible enough given the facts and circumstances of the case. The delay may be condoned if the complainant appears to be reliable and without any motive for implicating the accused falsely. [See Apren Joseph v. State of Kerala, (1973) 3 SCC 114: (AIR1973 SC 1); Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1]: (AIR2017 SC 2161)."

38. In the present case, no explanation has been given by the informant (PW-1) that why he lodged FIR of the present case with an inordinate delay of three weeks in spite of the fact that he arrived at the place of incident i.e. Railway Track on 12.9.2018 where the dead body of the deceased was lying. This circumstance would suggest that the informant had no suspicion with regard to any foul play on the part of the appellant or any member of his family in his daughter's death. Though, later, after three weeks he lodged the FIR alleging that his daughter was murdered by the appellant and his family members due to non-fulfilment of the demand of dowry but, during trial, informant (PW-1) did not support the version of the FIR. This circumstance is also indicative of the fact that the deceased might have died due to train accident.

39. In view of the foregoing discussion, we are of the considered view that the prosecution failed to prove its case against appellant beyond reasonable doubt. Consequently, the appeal is allowed. The impugned judgment and order of the trial court dated 17.12.2019 passed by Additional District & Sessions Judge/F.T.C. No.1 Etawah in Sessions Trial No. 17 of 2019 is hereby set aside. The appellant is acquitted of all the charges for which he has been tried and convicted. The appellant is in jail, he shall be released forthwith, if not wanted in any other case, subject to compliance of provisions of Section 437-A Cr.P.C. to the satisfaction of the court below.

40. Let a copy of this order/judgment and the original record of the lower court be transmitted to the trial court concerned forthwith for necessary information and compliance. The office is further directed to enter the judgment in compliance register maintained for the purpose of the Court.

Order Date :- 27.4.2022 SKM/AKPandey/AKShukla/-

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