Mohd.Tariq vs The State Of Madhya Pradesh on 23 August, 2018

[Cites 25, Cited by 5]

Madhya Pradesh High Court

Mohd.Tariq vs The State Of Madhya Pradesh on 23 August, 2018

This appeal has been filed by the appellant being aggrieved by the judgment dated 03.05.2008 passed by the IV Additional Sessions Judge, (Fast Track), Hoshangabad in S.T. No. 154/2007 whereby the appellant has been convicted for an offence punishable under section 302 and 201 of the I.P.C. and sentenced to life imprisonment and fine of Rs. 200/- with a stipulation of additional sentence of six months R.I. in case of default and five years R.I. with fine of Rs. 300/- with default stipulation respectively.

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2. The prosecution case, in brief, is that the appellant who was married to the deceased Anjum Bano two years prior to the incident and was a Moulvi in a mosque situated in village Papan, appeared with the dead body of the deceased Anjum Bano to the Government Hospital, Harda at around 9 AM on 02.06.2007 whereupon the police authorities of Harda were informed and consequently, constable Vaheed Khan PW-7 recorded a merg intimation and thereafter after conducting an enquiry, recorded an F.I.R. on 04.06.2007.

3. According to the prosecution, the post mortem of the deceased Anjum Bano was conducted at District Hospital, Harda on 02.06.2007 whereupon it was found that the deceased had been strangulated and the cause of death was asphyxia due to strangulation. The post mortem also established the fact that the upper ring of trachea was fractured on account of the strangulation. According to the prosecution, on investigation, it was found that the appellant used to demand dowry from the deceased and also doubted her character and used to frequently physically abuse her on account of that.

4. The Police during investigation and on the statement of the appellant also seized the Dupatta belonging to the deceased on the statement of the appellant on which blood

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stains were found during forensic examination, the F.S.L. report in relation to which is Ex. P/21.

5. On the basis of the aforesaid evidence the appellant was prosecuted for an offence punishable under sections 302 and 201 of IPC.

6. The trial court on an analysis of the evidence on record has held the appellant guilty by recording a finding that the appellant used to stay alone with his wife; that he himself produced the dead body before the hospital concerned; that he used to frequently physically beat and abuse the deceased; that the Dupatta was recovered from the appellant and that the appellant had not furnished any explanation as to how and why the death of the deceased occurred although he was the only one who could have given any logical explanation for the same.

7. The learned counsel for the appellant submits that the present case is purely one of the circumstantial evidence as there is no eye witness or other witnesses produced by the prosecution to clearly establish the involvement of the appellant in the death of the deceased. It is submitted that conviction of the appellant is based simply on the basis of presumptions and assumptions and is not sustainable in the eye of law. The prosecution was required to prove beyond

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reasonable doubt the guilt of the appellant that too, on the basis of cogent evidence to prove circumstances which left the Court with no other option but to arrive at the conclusion of guilt of the appellant.

8. We have heard the learned counsel for the appellants and examined the record extensively.

9. From the aforesaid, it is clear that the prosecution has been able to establish the fact that the appellant used to live alone with his wife in a room in the Masjid concerned; that the appellant himself produced the dead-body of the deceased at Government hospital, Harda pretending that she had died a natural death without disclosing the fact of strangulation; that he has not given any explanation as to what happened to the deceased or the manner in which she was strangulated. There is no evidence whatsoever led by the appellant in defence to establish the involvement of any third party in the commission of the crime.

10. In addition to the above, the statements of the doctors Dr. Vinita Patekar (PW-4) and Dr. R.B. Patel (PW-9) as well as the post-mortem report, Ex.P/5 establishes that the deceased died on account of strangulation and that she was strangulated by using sufficient force which resulted in fracture of the ring of the trachea. The medical evidence also

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establishes the fact that the deceased was infact strangulated by the use of hands and not by the use of any other material like Dupatta, rope etc.

11. The statements of Jameer Ahmed (PW-3), father of the deceased as well as other witnesses also clearly establish the fact that the deceased alongwith the child born to the appellant and the deceased, were living with her parents since the last one year and had infact returned back to live with the appellant just 15 days before the incident and that the deceased had been left by the appellant to stay with her parents i.e. PW-3 Jameer Ahmed as he had failed to satisfy the demand of Rs.50,000/- as dowry.

12. From the aforesaid facts that have been established by the prosecution, it is apparent that the appellant and the deceased resided alone and therefore, the appellant alone could have furnished some explanation as to the reason and cause of death of the deceased, moreso as admittedly, he was the one who took her dead-body to the Government Hospital, Harda.

13. Apparently, no evidence has been led by the appellant in his defence to explain this aspect, nor has the appellant made any statement giving any kind of explanation whatsoever in his statement recorded under Section 313 of

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the Cr.P.C.

14. Though in cases of circumstantial evidence, it is for the prosecution to establish circumstances which form an unbroken chain of links leading to the only possible conclusion of guilt of the appellant, however, in cases like the present one; where the deceased, who is the wife of the appellant, was staying alone with him and the appellant himself had produced the dead-body of his wife who was found to have been strangulated, it was for the appellant to furnish an explanation as to the manner and cause of the death of the deceased, failing which the provisions of Section 106 of the Evidence Act and the general law would require a presumption to be raised against the appellant.

15. The law in this regard has been extensively summarized by the Supreme Court in the case of Trimukh Maroti Kirkan vs State Of Maharashtra (2006) 10 SCC 681 as under:-

"12. In the case in hand there is no eye-witness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be

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incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence.

13. The demand for dowry or money from the parents of the bride has shown a phenomenal increase in last few years. Cases are frequently coming before the Courts, where the husband or in-laws have gone to the extent of killing the bride if the demand is not met. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in Court as they want to keep aloof and do not want to antagonize a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the house should go unpunished.

14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab vs. Karnail Singh (2003) 11 SCC 271). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the

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Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:

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

15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.

16. A somewhat similar question was examined by this Court in connection with Section 167 and 178-A of the Sea Customs Act in Collector of Customs, Madras & Ors. v. D. Bhoormull AIR 1974 SC 859 and it will be apt to reproduce paras 30 to 32 of the reports which are as under :

"30. It cannot be disputed that in proceedings for imposing penalties under Clause (8) of Section 167 to which Section 178-A does not apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and

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as Prof. Brett felicitously puts it - ''all exactness is a fake". El Dorado of absolute proof being unattainable, the law, accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent man's estimate as to the probabilities of the case.

31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered - to use the words of Lord Mansfield in Blatch v. Archer (1774) 1 Cowp. 63 at p.65 "according to the proof which it was in the power of one side to prove, and in the power of the other to have contradicted". Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden.

32. Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. On the principle underlying Section 106, Evidence Act, the burden to establish those facts is cast on the person concerned; and if he falls to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person, and in the result prove him guilty. As pointed out by Best in 'Law of Evidence', (12th Edn. Article 320, page 291), the "presumption of innocence is, no doubt, presumptio juris; but every day's practice shows that it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of stolen property", though the latter is only a presumption of fact. Thus the burden on the prosecution or the Department may be considerably lightened even by such presumption of fact arising in

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their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that burden to discharge which very slight evidence may suffice."

(Emphasis supplied)

17. The aforesaid principle has been approved and followed in Balram Prasad Agrawal v. State of Bihar & Ors. AIR 1997 SC 1830 where a married woman had committed suicide on account of ill- treatment meted out to her by her husband and in-laws on account of demand of dowry and being issueless.

18. The question of burden of proof where some facts are within the personal knowledge of the accused was examined in State of West Bengal v. Mir Mohammad Omar & Ors. (2000) 8 SCC 382. In this case the assailants forcibly dragged the deceased Mahesh from the house where he was taking shelter on account of the fear of the accused and took him away at about 2.30 in the night. Next day in the morning his mangled body was found lying in the hospital. The trial Court convicted the accused under Section 364 read with Section 34 IPC and sentenced them to 10 years RI. The accused preferred an appeal against their conviction before the High Court and the State also filed an appeal challenging the acquittal of the accused for murder charge. The accused had not given any explanation as to what happened to Mahesh after he was abducted by them. The learned Sessions Judge after referring to the law on circumstantial evidence had observed that there was a missing link in the chain of evidence after the deceased was last seen together with the accused persons and the discovery of the dead body in the hospital and had concluded that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt. This Court took note of the provisions of Section 106 of the Evidence Act and laid down the following principle in paras 31 to 34 of the reports :

"31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though

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it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.

32. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in conditions such as this.

33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.

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

19. Applying the aforesaid principle, this Court while maintaining the conviction under Section 364 read with Section 34 IPC reversed the order of acquittal under Section 302 read with Section 34 IPC and convicted the accused under the said provision and sentenced them to

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imprisonment for life.

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

21. In a case based on circumstantial evidence where no eye- witness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court. [See State of Tamil Nadu v. Rajendran (1999) 8 SCC 679 (para 6); State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 (para 40); State of Maharashtra v. Suresh (2000) 1 SCC 471 (para 27); Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731 (para 15) and Gulab Chand v. State of M.P. (1995) 3 SCC 574 (para 4)].

22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes placed 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

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which indicates that he is responsible for commission of the crime. In Nika Ram v. State of Himachal Pradesh AIR 1972 SC 2077 it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with 'khokhri' and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra (1992) 3 SCC 106 the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. In State of Tamil Nadu v. Rajendran (1999) 8 SCC 679 the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot

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be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime."

16. This judgment has been relied upon by the Supreme Court subsequently in the decision in the case of Alber Oraon vs. State of Jharkhand reported in (2014) 12 SCC 306 wherein the Supreme Court has also taken into consideration similar law laid down by the Supreme Court in the cases of Raj Kumar Prasad Tamrakar vs. State of Bihar and another, (2007) 10 SCC 433, State of Rajasthan vs. Jaggu Ram (2008) 12 SCC 51 and Sushil Kumar vs. State of Punjab, (2009) 10 SCC 434.

17. The Supreme Court has again applied the provisions of Section 106 of the Evidence Act against the appellant/accused on failure of the accused to explain incriminating circumstances against him in the cases of State of Himanchal Pradesh vs. Raj Kumar reported in (2018) 2 SCC 69 and Chandra Bhawan Singh vs. State of Uttar Pradesh reported in (2018) 6 SCC 670.

18. From the law laid down by the Supreme Court in the aforesaid decisions, it is apparent that in a case like the present one where the death of the deceased/wife occurred inside the privacy of the house, wherein the husband and the wife alone were present, it is extremely difficult for the

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prosecution to lead evidence to establish the guilt of the accused in case strict principles of circumstantial evidence are insisted upon and in such cases where the prosecution is able to establish that the deceased and the accused were alone and that the deceased has died an unnatural death, the accused cannot get away by simply keeping quite and offering no explanation and take a plea that the entire burden of proving or establishing beyond reasonable doubt lies upon the prosecution alone. It has been held that in cases like the present one, it is for the husband, who alone was present with the deceased wife, who died in unnatural circumstances, to offer an explanation as to the manner in which the offence occurred and in case such an explanation is offered, the same should be found to be true. The Supreme Court has also held that in such cases when incriminating circumstances are put to an accused and he offers no explanation or offers an explanation which is found to be untrue then such a circumstance becomes an additional link in the chain of circumstances to make it complete, and that a finding of guilt can be arrived at by the Court on that basis in the absence of any explanation by the accused.

19. As stated by us in the preceding paragraphs in view of

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the facts established by the prosecution and infact admitted by the appellant to the extent of taking the body of the deceased who was living alone with him, to the District Hospital, Harda wherein it was found that she had died on account of strangulation and in the absence of any explanation, acceptable or otherwise on behalf of the appellant or in the total absence of any statement in this regard even in the accused's statement recorded under Section 313 of the Cr.P.C., we do not find any perversity or illegality in the conclusion recorded by the trial Court regarding guilt of the appellant. On the contrary, we are of the considered opinion that the trial Court has properly analyzed the evidence on record and in the circumstances as stated above, has rightly arrived at the conclusion of guilt against the appellant and found him to be guilty of offences punishable under Sections 302 read with Section 201 of the IPC.

20. The appeal filed by the appellant being meritless is hereby dismissed. The appellant who is in jail, shall remain incarcerated to undergo the remaining part of the jail sentence.

             (R.S. Jha)                            (Sanjay Dwivedi)
              Judge                                      Judge
msp

 Digitally signed by MANVENDRA SINGH PARIHAR
 Date: 2018.08.27 15:15:54 +05'30'
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