Himachal Pradesh High Court
State Of H.P vs Avdesh Kumar Singh on 1 August, 2016
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Appeal No. 572 of 2010
Reserved on : 29.7.2016
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Date of Decision: 1.8.2016
State of H.P. ...Appellant
Versus
Avdesh Kumar Singh ...Respondent
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of
Coram
Hon'ble Mr. Justice Rajiv Sharma, Judge.
Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes
rt
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For the appellant: Mr. P.M. Negi, Dy.A.G.
For the respondent: M/s Dinesh Kumar and Y. Paul, Advocates.
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Per Rajiv Sharma, Judge:
This appeal is instituted by the State against the judgment dated 18.8.2010 rendered by the learned Additional Sessions Judge, Fast Track Court, Solan, in Sessions Trial No. 12 FTC/7 of 2009, whereby the respondent (hereinafter referred to as the "accused"), who was charged with and tried for offence punishable under Section 302 of the Indian Penal Code, has been acquitted.
2 The case of the prosecution, in a nutshell, is that on ::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 2 21.5.2009, PW1 Mast Ram, son of Jamnu Ram, resident of Village Bagga, Tehsil Arki, District Solan, telephonically informed the Police Station, Bagga that the wife of his tenant (accused) was lying .
unconscious in her room. PW16 ASI Dhanender Singh along with PW8 HHC Amar Nath and Constable Dhani Ram visited the spot and found that wife of the accused was lying dead on her bed. Her husband (accused) and step son PW 19 Ashish Kumar were also of present there. The photographs of the dead body were taken. The dead body was examined and thereafter, the same was sent for conducting the post-mortem.
rt The Medical Officer at Arki gave the opinion that the deceased died under suspicious circumstances and hence, he referred the case to IGMC, Shimla for expert forensic opinion. The dead body was taken to IGMC Shimla, where the doctors conducted the post-mortem. The police took into possession broken gold nose pin, hair and one blood stained bed sheet from the spot and also recorded the statements of the witnesses under Section 161 Cr.P.C. The viscera and other parcels were sent for chemical examination to FSL, Junga and as per the report of FSL Junga, no poison was detected in the parcels. The final opinion was also obtained from the Department of Forensic Medicine, IGMC, Shimla and the doctors gave the opinion that the deceased died as a result of asphyxia due to manual strangulation. The accused was arrested.
::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 3The matter was investigated and the challan was put up in the trial court after completing all codal formalities.
3 Prosecution examined as many as 19 witnesses, in all, to .
prove its case against the accused. Statement of the accused under Section 313 Cr. P.C. was recorded, in which he pleaded that he has been falsely implicated. The trial court acquitted the accused vide impugned judgment dated 18.8.2010. Hence, the present appeal.
of 4 Mr. P.M. Negi, learned Deputy Advocate General, has vehemently argued that the prosecution has proved its case against the accused beyond all reasonable doubts.
rt 5 Mr. Dinesh Kumar and Mr. Y. Paul, learned counsel appearing for the accused, have supported the impugned judgment dated 18.8.2010.
6 We have heard the learned counsel for the parties and have gone through the judgment and record meticulously.
7 PW1, Mast Ram, testified that he is the owner of the four storeyed building at Bagga. He is living with his family in second storey. He has rented out the ground floor of the building to accused. On 21.5.2009 at about 10.30 P.M., son of the accused, Ashish Kumar came to his room and told him that his mother was lying unconscious in her room and he requested him to come on the spot. He went with him to the room of the deceased. The accused ::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 4 was also present there. The deceased was lying unconscious on her bed in the front room. He telephonically informed the police that the wife of the accused was lying unconscious on her bed. The police .
reached the spot within 5-10 minutes. The Doctor from Jaypee Industries came on the spot. He told them that the deceased was dead. He further deposed that he noticed mark on the nose of the deceased. On 24.5.2009, the police again visited the spot in his of presence. The police opened the lock of the door and took into possession few hair, nose pin, one bed sheet vide seizure memo, Ext.
PW1/A. He admitted his signatures in red circle 'A'. He had never rt noticed the deceased and the accused quarreling with each other.
They were having cordial relations. He was declared hostile. In cross-
examination conducted by the learned Public Prosecutor, he denied the suggestion that he had noticed the injuries on nose, face and hands of the deceased. He also denied that the accused and deceased were having dispute regarding money matters.
8 In his cross-examination by the learned counsel for the accused, he deposed that when he went with Ashish, he found the accused inside the room. The doctor tried to revive the deceased. He had heard that the deceased was suffering from asthma and once or twice, he had noticed her taking inhaler.
9 PW2, Roshan Lal, was associated by the police during ::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 5 the course of investigation. According to him on 24.5.2009, the police took into possession one nose pin, hair and one bed sheet from the room of the deceased. The accused was tenant of Mast Ram and the .
deceased and his son Ashish were living in the rented room at Bagga.
The bed sheet, Ext. P8, had stains in red colour. He also identified his signature on seizure memo, Ext. PW1/A. No quarrel took place in his presence. The deceased and the accused were having cordial of relations. He was declared hostile and in cross-examination conducted by the learned Public Prosecutor, he denied the suggestion that the accused was suspecting the character of the deceased. He rt volunteered that they were living with love and affection.
10 PW3, Ravinder Singh, deposed that he was also associated by the police during the course of the investigation. The deceased was his younger sister. She was married to the accused about seven years back. The accused was also a contractor and the deceased was having his power of attorney. The deceased had disclosed to him that the accused used to beat her and he had given beatings to her 2-3 times and also threatened to kill her. The dispute between the accused and deceased was regarding money and ornaments. According to him, he has strong suspicion that it is the accused, who had killed his sister. The accused used to suspect her character.
::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 611 PW4, Prashant Kumar, deposed that he was working as Fitter in J.H.C.P. Company at Bagga. He is also tenant of Mast Ram.
On 21.5.2009, he was sleeping in his room. At about 11.30 P.M., the .
door of his room was knocked. He opened the door. Mast ram was standing outside the door along with police. The police enquired from him about the death of the deceased, but he told that he had not heard any noise. The deceased was lying on the bed. The accused of and his son Ashish Kumar were also present in the room. Mast Ram was also present there. The police obtained his signature on the post-
mortem forms No. 25-35.
rt 12 PW5, Brij Lal, has proved on record tatima, Ext. PW5/B and site map, Ext. PW5/C. 13 PW6, Durga Dass Negi, deposed that the deceased was his cousin sister. She was married to the accused about seven years ago. They used to reside at Bagga. She had disclosed Ravinder Singh and him on telephone that she was having dispute with the accused regarding money matter. The accused had killed his cousin since he was suspecting her character.
14 PW10, Dr. Rajinder Singh Tegta, deposed that on 22.5.2009, the dead body of the deceased was brought to Civil Hospital Arki. He conducted preliminary examination of the dead body of the deceased. He found the following injuries on the person ::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 7 of the deceased:-
1) Face appeared to be swollen with blush area present on nose, bilateral cheek and neck.
Blood coming out from the nostril with blood cloth streaks present below nostrils.
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2) Abrasion on left side of forearm dosal aspect size 2cm x 2 mm.
3) Abrasion present about the left elbow six 1.5cm x 1 cm.
4) Multiple small abrasions around right elbow joint approximately 4-5 in number.
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5) Lacerated wound present on the right elbow joint approximately 1 x ½ x ½ cm in size.
6) Square abrated area 1 cm in size present on the lower knee joint.
rt The injuries noticed above were ante-mortem in nature. No dislocation and fracture was noticed. In his opinion, the deceased died under suspicious circumstances and after conducting the preliminary external examination, the dead body was referred to IGMC, Shimla for expert forensic opinion. He issued preliminary examination report of deceased, Ext. PW10/A. The injuries mentioned in Ext. PW10/A were possible in struggle.
15. In his cross-examination, he deposed that he had not conducted the post mortem because the injuries were ante-mortem in nature and there were struggle marks. He also admitted that if immediately after the dead body is mishandled, contusions and ::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 8 abrasions can be produced thereon. He had examined the dead body minutely.
16. PW11, Dr. Piyush Kapila, deposed that a board was .
constituted by the Head of Department, Dr. H.S. Sekho consisting of Dr. H.S. Sekho, he and Dr. Sangeet Dhillon, Registrar of the Department. He was the Chief Autopsy Surgeon in this case. On examination of the dead body, apparently reddish blood mixed fluid of was noticed to be coming out from the mouth and nostrils. Body had cooled down to room temperature. Rigor motris was present, but in early passing state. No evidence of external putrification was found.
rt Hypostasis was present on back, purple fixed. On external examination, the following ante mortem injuries were found:-
Head and Neck
1. No external injury over scalp but after reflecting scalp multiple small contusions present on all over the scalp of different size ranging from 5 to 2 cm.
2. Black eye present on left side.
3. Multiple small contused abrasions present on both sides of nose (no nose pin was found) in around 3 cm area including tip of nose, red in colour.
4. Multiple small pin head sized petechiae present on face.
5. Small 0.5 cm abraded contusion present on lower lip towards left side 1cm from midline.
6. Upper lip blue, contused with 1.5 cm laceration in midline where fermium joints the gums.
7. Multiple small contused abrasions present on face around ::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 9 lower lip and chin area, red.
8. Multiple small abraded contusions present on upper part of neck, moreso on the right side in an area of 7x5 cm with curvilinear abrasion (nail mark) transversely placed 3 cm below chin in midline measuring 0.8 cm with another curvilinear abrasion 0.3 cm around 0.5 cm towards right .
side.
Extremities
1. 1.5 x 1 cm red abraded contusion present on right elbow 7.5 cm lateral to tip of elbow on radial aspect directing from medial to lateral side.
2. 0.8 cm round, abrasion present on 4 cm below elbow on of right side, red directing medial to lateral aspect.
3. 1.3 cm linear, red abrasion on tip of right elbow.
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4. 1.5 x 1.5 cm abrasion on left elbow 3 cm lateral to tip of elbow.
5. 0.8 cm round red abrasion on left elbow 1.5 cm above the injury No. 4.
6. 0.5 cm red abrasion on tip of left elbow.
7. 1 x 1 cm abrasion, red on dorsal aspect of right thumb at joint of distal interphalanx.
8. 1 x 1 cm abrasion on left knee at lower aspect in midline.
9. 0.4 cm abrasion 3 cm written abrasion on lateral aspect of right knee.
Cranium and Spinal Cord.
Injuries regarding scalp are already stated above. There were no fracture of skull or vertebrae. Gross congestion of meninges with petechiae on the brain were found.
Thorax There was 7 x 5 cm contusion over the body of the sternum in the upper part after opening. Both pleurae were grossly ::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 10 congested. Larynx and trachea were grossly congested. Both lungs were grossly congested with scare petechiae present. Heart was normal in size.
Dissection of Neck Gross contusions below the skin and the subcutaneous tissue .
and underlying muscles were present. No fracture of hyoid bone was found. No fracture of thyroid cartilage or circoideartilge was found.
In the inner aspect of upper lip laceration with gross contusion was found. In stomach there was found 1 litre of food mixed fluid in which rice and curry could be made out without any smell or congestion of nucosa. Small intestines and larger intestines live spleen kidneys bladder and organs of of generation were found normal.
He has categorically deposed that the injuries mentioned in the heading "dissection of neck" were possible in case of manual strangulation.
rt The injuries mentioned in the post-mortem report, Ext.PW11/C, were possible in struggle. The injuries mentioned in red circle "D" in Ext. PW11/C were sufficient to cause death in ordinary course of nature. After considering the chemical examiner's report, Ext. PW11/A, he issued the final opinion, Ext. PW10/B that the deceased died as a result of asphyxia due to manual strangulation. The probable time elapsed between injury and death was opined to be immediate and that between death and post mortem was opined to be around 20 to 24 hours.
17 In his cross-examination, he denied that the contusions and abrasions can be produced on body immediately after the death.
He admitted that there were some diseases of upper airways and ::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 11 lungs, which can result to asphyxia.
18 PW12, Dr. Manjeet Singh, examined the accused. He issued MLC, Ext. PW12/B and found the following injuries on the .
person of the accused:-
1. A reddish brown scab is present on the right elbow joint on exterance surface.
2. A reddish brown scab is present on the left elbow joint on exterance surface. A reddish brown scab is present on the left thumb.
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3. Reddish brown scab is present on lateral side of right knee joint.
4. A reddish brown scab is present on lateral side of right knee joint.
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5. A reddish brown scab is present on lateral of left knee joint.
6. A reddish brown scab is present on lateral side of right great toe.
According to him, injuries No.1 to 6 are simple in nature within probable duration 3-4 days. The kind of weapon used was blunt. The injuries mentioned in the MLC, Ext. PW12/B, were possible in a struggle.
19 PW14, Sapna Devi, deposed that on 21.5.2009, her brother-in-law Roshan Lal was arrested by the police during agitation on that day. Roshan Lal is running a shop at Bagga. She knows Ashish Kumar, son of the accused. Ashish Kumar was engaged by Roshan Lal. Ashish Kumar used to work for whole day in the shop.
::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 12On 21.5.2009, Ashish Kumar was present in the shop till 10.00 P.M. After closing the shop, he went to his quarter along with the accused.
20 PW15, SI Mohar Singh, deposed that FIR No.26/2009, .
Ext. PW15/A, dated 28.5.2009 was registered under Section 376 of the Indian Penal Code against the accused in Police Station Bagga on the complaint of Kumari Gunjan.
21 PW16, Dhanender Singh, testified that on 21.5.2009 at of about 11.00 P.M, he was present in Police Station Bagga, when a telephonic information was received from Mast Ram intimating that wife of the accused was found in an un-conscious condition. He rt visited the spot. He found the accused and his son present in the room. The deceased was lying on the bed in an unconscious condition. He made a telephonic call to Police Station and told MHC Rishi Ram to send two lady constables on the spot. L.C. Anita and L.C. Pratima reached the spot. L.C. Anita checked the body of the deceased and declared her dead. He noticed injuries on arms, leg and nose of the deceased. The accused told him that the deceased was suffering from asthma and fits for the last 6-7 years. The post-
mortem was got conducted. The case property was taken into possession and sent to FSL Junga.
22 PW17, Ajay Sehgal, Scientific Officer, proved on record reports, Ext.PW11/A and Ext.PW15/B. ::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 13 23 PW18, L.C. Anita, deposed that on 21.5.2009, she along with LC Pratima went to the spot. One lady was found lying on the bed. She checked her and she was found dead. There were scratch .
marks on nose, arms and hands. Mast Ram, accused and his son were also present there. The accused disclosed that the deceased was suffering from Asthma and fits and, due to which she died.
24 PW19, Ashish Kumar, testified that he was living with of his parents at Bagga. The deceased was his step mother. On 21.5.2009, he was present in the shop of Roshan Lal. His father (accused) was also present in the shop till 12.30 P.M. on that day.
rt His step mother was alone in the rented room. He was declared hostile. In his cross-examination conducted by the learned Public Prosecutor, he admitted that when he reached his house, his mother was lying on the bed. He volunteered that his father was at the house of Sapna. He admitted that he had gone to the house of Mast Ram, who came with him to his house. His mother was lying unconscious on the bed in the outer room. He had noticed redness on nose and one mark on the neck of his mother. Mast Ram had informed the police.
25 In cross-examination conducted by learned counsel for the accused, he deposed that he along with father went to the house of Sapna and took food there. After taking food, he came to the room.
::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 14He saw his mother lying on the bed and on suspicion, he ran back to call his father. He and his father came back to the room. His father also noticed redness on the nose and marks on neck, on which his .
father told him that there is some mystery and asked him to call the landlord. The landlord came to the spot. The Doctor at JHCP came along with his father and police. The doctor checked his mother, massaged her chest and stomach etc and thereafter, declared her of dead.
26 In the present case, there is no eye-witness. The case is based on circumstantial evidence. The Court has to determine rt whether the chain of events is complete to prove the guilty of the accused.
27 The marriage between accused and deceased was solemnized about 6-7 years back. They were living in a rented accommodation of PW1 Mast Ram at Bagga, who has testified that on 21.5.2009 at about 10.30 P.M., son of the accused, Ashish Kumar came to his room and told him that his mother was lying unconscious in the room. He along with Ashish Kumar went to the spot. The accused was also present there. He found the deceased lying unconscious on her bed in front room. He telephonically informed the police. The police reached the spot within 5-10 minutes.
The doctor also came to the spot and declared the deceased dead. He ::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 15 also noticed mark on the nose of the deceased. He admitted his signatures in red circle 'A' on seizure memo, Ext. PW1/A. He was declared hostile and cross-examined by the learned Public .
Prosecutor. PW3, Ravinder Singh, is brother of the deceased.
According to him, the deceased used to suspect the character of his sister and fight with her over money matters. PW4, Prashant Kumar, deposed that on 21.5.2009 at 11.30 P.M., the police inquired from of him about the death of the deceased. He also visited the spot. The deceased was lying on the bed in the room. The accused and his son were also present there. The police obtained his signatures on form rt Nos. 25-35. PW6, Durga Dass Negi, also corroborated the statement of PW3, Ravinder Singh. According to him, the deceased and the accused used to fight over money matters.
28 Now the Court will advert to the medical evidence on record. It is PW10, Dr. Rajinder Singh, who had conducted preliminary examination of the dead body of the deceased. According to him, after conducting the preliminary external examination, he found that the deceased died under suspicious circumstances and, thus, he referred the matter to IGMC Shimla for expert forensic opinion. He had not noticed ligature mark around the neck, however, he admitted that the injuries mentioned in preliminary examination report, Ext. PW10/A were ante mortem in nature and were possible ::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 16 in struggle. He had noticed as many as six injuries on the person of the deceased. In his cross-examination, he categorically testified that he did not conduct the post mortem because the injuries were ante .
mortem in nature and there were struggle marks. He further went on to depose that he had examined the dead body minutely.
29 Statement of PW11, Dr. Piyush Kapila is most material.
According to him, the deceased died as a result of asphyxia due to of manual strangulation. The probable time elapsed between injury and death was opined to be immediate and that between death and post-mortem was opined to be around 20 to 24 hours. The injuries rt mentioned in heading dissection of neck were possible in case of manual strangulation. He also noticed gross contusions below the skin, in subcutaneous tissue and underlying muscles. The injuries mentioned in red circle 'D' in the post-mortem report, Ext. PW11/C were sufficient to cause death in the normal course of nature. PW12, Dr. Manjeet Singh, had medically examined the accused and he noticed the injuries on the person of the accused as per MLC, Ext.PW12/B. 30 Mr. Dinesh Kumar, Advocate, has vehemently argued that the deceased died due to asthma. There is no merit in his contention. The deceased, as per statement of PW11 Dr. Piyush Kapila, had died as a result of asphyxia due to manual strangulation.
::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 17There were injuries on the person of the accused as per statement of PW12 Dr. Manjeet Singh. PW10, Dr. Rajinder Singh Tegta also deposed in his examination-in-chief that the injuries mentioned in .
Ext.PW10/A were possible in struggle. The deceased, her husband (accused) and her son Ashish Kumar were present in the room.
PW19, Ashish Kumar had informed PW1, Mast Ram, about the incident. Mast Ram visited the room and also noticed injury mark on of the nose of the deceased. PW18 L.C. Anita had also noticed the scratch marks on nose, arms and hands of the deceased. PW19, Ashish Kumar, also deposed that his father (accused) had also rt noticed redness on the nose and marks on the neck of the deceased and told him that there was some mystery.
31 Learned trial court should have considered the statement of PW11 Dr. Piyush Kapila in its entirety instead of picking up one line from his cross-examination - "it is correct to say that there were some diseases of upper airways and lungs, which can result to asphyxia". However, fact of the matter is that after considering the chemical examiner's report, Ext. PW11/A, the board constituted by Dr. H.S. Sekho, Head of Department, consisting of Dr. H.S. Sekho, PW11 Dr. Piyush Kapila (Chief Autopsy Surgeon in this case) and Dr. Sangeet Dhillon, Registrar of the Department, has issued the final opinion, Ext. PW10/B that the deceased died as a result of asphyxia ::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 18 due to "manual strangulation". The injuries received by the accused also prove that on 21.5.2009, in night hours, some scuffle had taken place in the room before the deceased was strangulated by the .
accused. The injuries received by the accused were due to scuffle and not due to fall on the surface. The accused and his son were present in the house. The injuries received by the deceased were ante-mortem in nature. PW17, Ajay Sehgal, Scientific Officer, has of duly proved on record FSL report Ext. PW15/B and testified that human blood of 'AB' was found on blood sample and bed sheet.
Though, the blood was detected in traces on hair sample, and nose rt pin but it was sufficient for further examination. Since the accused was present in the room of the deceased, he has to explain the circumstances, under which the deceased died.
32 Their Lordships of the Hon'ble Supreme Court in Trimukh Maroti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681 have held that where prosecution succeeds in leading evidence to show that (i) either the husband and wife were last seen together, (or) the offence was committed in the dwelling house, where husband also resided, and if the accused husband offers no explanation as to the injuries received by his wife or if the explanation is false, there is strong circumstance which indicates that he committed the crime.
Their Lordships have further held that in a case based on ::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 19 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 accused either offers no explanation or offers an explanation which is found to be untrue, the same becomes an additional link in the chain of circumstances to make it complete.
Their Lordships have held as under:
of "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 basedrt 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 incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence.
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 ::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 20 106 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.
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 of 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 rt 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 ::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 21 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 of 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 rt 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 ::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 22 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 be any of hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime."
33rt Their Lordships of the Hon'ble Supreme Court in State of Rajasthan vs. Kashi Ram, (2006) 12 SCC 254 have held that the accused's failure to give satisfactory explanation to an incriminating circumstance which was within his special knowledge amounts to failure to discharge the onus which lies on accused under section 106 of Evidence Act. This itself provides an additional link in the chain of circumstances proved against him. Their Lordships have held as under:
23. 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 ::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 23 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 of 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 rt 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 Re. Naina Mohd. AIR 1960 Madras, 218."
34 Their Lordships of the Hon'ble Supreme Court in Dnyaneshwar vs State of Maharashtra, (2007) 10 SCC 445 have held that when the deceased found murdered in her matrimonial home and the possibility of any outsider committing the offence ruled out, it is for the husband to explain the ground for unnatural death of his wife. Their Lordships have held as under:
::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 24"10. It has not been disputed before us that the deceased was murdered in her matrimonial home. It is not the case of the appellant that the offence was committed by somebody else. It is also not his case that there was a possibility of an outsider to commit the .
said offence. One of the circumstances which is relevant is that when the couple was last seen in a premises to which an outsider may not have any access.
It is for the husband to explain the ground for unnatural death of his wife. In Raj Kumar Prasad Tamarkar v. State of Bihar & Anr., (2007) (1) SCALE 19, of this court held:
"22. The conspectus of the events which had been noticed by the learned Sessions Judge as also by the rt High Court categorically go to show that at the time when the occurrence took place, the deceased and the respondent only were in the bedroom and the terrace connecting the same. There was no other person. The cause of death of the deceased Usha Devi i.e. by a gun short injury is not disputed. The fact that the terrace and the bedroom are adjoining each other is not in dispute.
23. The autopsy report shows that 'a blackening and charring' existed so far as Injury No. (i) is concerned. The blackening and charring keeping in view the nature of the firearm, which is said to have been used clearly go the show that a shot was fired from a short distance. Blackening or charring is possible when a shot is fired from a distance of about 2 feet to 3 feet. It, therefore cannot be a case where the death might have been caused by somebody by firing a short the deceased from ::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 25 a distance of more than 6 feet. The place of injury is also important. The lacerated wound was found over grabellai middle of forehead. It goes a long way to show that the same must have been done by a person who wanted to kill the deceased from a short distance.
.
There was, thus, a remote possibility of causation of such type of injury by any other person, who was not in the terrace. Once the prosecution has been able to show that at the relevant time, the room and terrace were in exclusive occupation of the couple, the burden of proof lay upon the respondent to show under what of circumstances death was caused to his wife. The onus was on him. He failed to discharge the same."
35 Their Lordships of the Hon'ble Supreme Court in Swamy rt Shraddananda alias Murli Manohar Mishra vs State of Karnataka, (2007) 12 SCC 288 have held that failure of accused husband to explain how his wife met with an unnatural death in their bedroom, provides an additional link to the chain of circumstances. Their Lordships have held as under:
"34. If it is proved that the deceased died in an unnatural circumstance in her bed room, which was occupied only by her and her husband, law requires the husband to offer an explanation in this behalf. We, however, do not intend to lay down a general law in this behalf as much would depend upon the facts and circumstances of each case. Absence of any explanation by the husband would lead to an inference ::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 26 which would lead to a circumstance against the accused."
36 Their Lordships of Hon'ble Supreme Court in Jamnadas vs. State of M.P., AIR 2016 SC 3270 have held that burden to .
establish case does not entirely lie on prosecution. Corresponding burden is on accused/inmates of house to give cogent explanation.
Their Lordships have held as under:-
20. In State of W.B. v. Mir Mohammad Omar and of others, 2000 8 SCC 382 this Court, while interpreting the burden of extent of proof on prosecution, observed as under: -
rt "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 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.
xxx xxx xxx
36. In this context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows: "When any fact is especially within the knowledge of any ::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 27 person, the burden of proving that fact is upon him."
37. The section is not 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 where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any of explanation which might drive the court to draw a different inference."
21. Shri S.K. Jain, learned senior counsel, on behalf of rt the appellants drew our attention to the case of Tomaso Bruno and another v. State of Uttar Pradesh, 2015 7 SCC 178 and argued that to invoke Section 106 of the Evidence Act the prosecution must have proved presence of the appellants in their house at the time of the incident. We have carefully gone through the case cited before us. It was a case where CCTV footage of the hotel was available but not produced to show the presence of the accused in the hotel and, as such, the plea of alibi that the accused had gone to witness "Subah-e-Bararas" from the hotel was accepted. The present case relates to a different kind of incident where a bride has been brutally murdered inside the house and her body, after cutting into pieces, was thrown in the park.
22. In Trimukh Maroti Kirkan v. State of Maharashtra, 2006 10 SCC 681 which is a case similar in nature to the present one, this Court has held as under: -
::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 28"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 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 rt the prosecution and there is no duty at all on an accused to offer any explanation."
37. Mr. Dinesh Kumar, Advocate, has vehemently argued that the accused was at the house of PW14 Sapna when the occurrence happened.
38. The accused has taken the plea of alibi on the basis of statements of PW14 Sapna and PW19 Ashish Kumar. It is a trite law that the burden of proof lies on the accused under Section 103 of the Evidence Act to establish the plea and it is not for the prosecution to prove that the he was not present at the spot when the occurrence happened. According to PW14 Sapna, PW19 Ashish Kumar was engaged by Roshan Lal and he was learning work of shop-keeping.
::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 29He used to work whole day in the shop. On 21.5.2009, Ashish Kumar was present in the shop till 10.00 P.M. After closing the shop at 10.00 P.M., Ashish Kumar accompanied by his father went to his .
quarter. In her cross-examination, she deposed that after closing the shop the accused and Ashish Kumar came to her house for taking dinner. PW19 Ashish Kumar deposed that he was present in the shop of Roshan Lal. Their residence is at a distance of 150 feet of from the shop. His father (accused) was in the shop since 12.30 P.M. on that day. From the shop, they went to Sapna's house for taking dinner. Statement of PW14 that PW19 Ashish Kumar was apprentice rt in the shop of Roshan Lal is not believable. She in her examination-
in-chief deposed that after closing the shop Ashish Kumar accompanied by the accused went to his quarter, whereas in her cross-examination, she deposed that after closing the shop, Ashish Kumar along with the accused went to her house for taking dinner.
Statements of PW14 Sapna and PW19 Ashish Kumar do not inspire confidence. There was no occasion for Ashish Kumar and the accused to have dinner in the house of Sapna leaving the deceased alone in the house. Moreover, it has come in the statements of PW1 Mast Ram, PW4 Prashant Kumar, PW16 Dhanender Singh and PW18, L.C. Anita that the accused along with PW19 Ashish Kumar was present at the house at the time of death of the deceased. The ::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 30 plea of alibi has been supported by the statement of the interested/related witness PW19 Ashish Kumar, which, on the face of it, is not creditworthy. Therefore, the plea of alibi cannot be proved .
on the basis of statements of PW14 Sapna and PW19 Ashish Kumar.
39. In Satya Vir vs. State, 1958 Cr.L.J. 1266, the Division Bench of Allahabad High Court has held that where the accused sets up a plea of alibi that he was on duty at another town, of on the date of occurrence, the burden of proof lies on him under Section 103 of the Evidence Act to establish the plea and it is not for the prosecution to prove that the accused was absent from duty on rt the date of the occurrence. Their Lordships have held as under:-
15. The learned Sessions Judge's finding with regard to the plea of alibi is that it was altogether false. From all that has gone before that finding appears to be well founded. The learned counsel for the appellant did not in this Court make any attempt to revive the plea of alibi : what he argued was that the defence had in the course of the trial made the allegation in an application dated 26-11-1956 that Rameshwar Singh Station Officer of the Saddar Bazar Police Station and Dharampal Chadha brother of the deceased had gone to Jhansi in September and October, 1956 and tampered with the defence witnesses, and that, therefore, it was for the prosecution to prove that the appellant was absent from duty on the date of the occurrence.
Now, as the appellant wished the Court to believe that at the time of the occurrence he was at Jhansi the ::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 31 burden of proof of that plea of alibi lay on him. The second illustration to Section 103, Evidence Act is specifically on this point. It is not correct to say therefore that it was for the prosecution to prove that the appellant was absent from duty on the date of the .
occurrence. Of course, if there were anything on the record to support the aforesaid allegation of the prosecution having tampered with the defence witnesses, that, taken along with the other facts and circumstances of the case, might well have raised a doubt, on the princi-pie laid down in AIR 1941 All 402 of (FB) (B), that after all the plea of alibi may be well founded, and, in that case, the defence would be entitled to the benefit of that doubt. But a mere rt allegation in an application without any evidence in support of that allegation is of no consequence whatsoever.
Not only did the defence lead no evidence in support of the aforesaid allegation, but it was not even put in cross-examination to the appropriate prosecution witnesses. Neither of the two persons against whom the allegation was made was a witness for the prosecution, but that did not absolve the defence from putting questions relevant to the allegation in the cross-examination of S. I. Jai Pal Sharma P. W. 19 who made the investigation and another Sub-Inspector, Him Singh P. W. 16, who had gone to Jhansi in search of the appellant. No such question whatsoever was put to the latter and the only question put to the former was whether he had gone to Jhansi, to which the witness replied in the affirmative. The learned Sessions ::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 32 Judge's finding regarding the appellant's plea of alibi appears therefore to be quite correct.
40 Their Lordships of Hon'ble Supreme Court in State of .
Haryana vs. Sher Singh, AIR 1981 SC 1021 have held that burden to prove plea of alibi is on the accused pleading it. Their Lordships have held as under:-
4. The High Court seems to have devoted a major part of of its judgment to the various case diaries produced before the Court in order to establish that the accused was not present at the police station either on the 9th or on the 13th of April, 1972 when the first two rt demands were made. According to the High Court this gave a sufficient alibi to the respondent from which it could be safely inferred that if he was not present at the police station, there could be no occasion for him to make any demand for bribe from the complainant.
Assuming that the recitals in the said case diaries are admissible (though we have serious doubts about it) yet it does not at all exclude the presence of the respondent at the Ambarnath Police Station on the 9th and 13th because he was not sent away to a place situated far from Bombay but was in some other police station within a radius of a few miles only. Even if he was deputed to some other place he was in possession of a jeep and he could visit the Ambarnath Police Station for a few minutes on any of these dates. It is well settled that a plea of alibi must be proved with absolute certainty so as to completely exclude the possibility of the presence of the person concerned at ::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 33 the place of occurrence. Such, however, is not the case here. Therefore, the discussion of the case diaries, which engaged a substantial portion of the High Court judgment, was really an exercise in futility.
.
41. Their Lordships of Hon'ble Supreme Court in State of Maharashtra vs. Narsingrao, AIR 1984 SC 63 have held that plea of alibi must be proved with absolute certainty so as to completely exclude the possibility of the presence of the person of concerned at the place of occurrence. Their Lordships have held as under:-
rt
18. The High Court seems to have devoted a major part of its judgment to the various case diaries produced before the Court in order to establish that the accused was not present at the police station either on the 9th or on the 13th of April, 1972 when the first two demands were made. According to the High Court this gave a sufficient alibi to the respondent from which it could be safely inferred that if he was not present at the police station, there could be no occasion for him to make any demand for bribe from the complainant.
Assuming that the recitals in the said case diaries are admissible (though we have serious doubts about it) yet it does not at all exclude the presence of the respondent at the Ambarnath Police Station on the 9th and 13th because he was not sent away to a place situated far from Bombay but was in some other police station within a radius of a few miles only. Even if he was deputed to some other place he was in possession ::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 34 of a jeep and he could visit the Ambarnath Police Station for a few minutes on any of these dates. It is well settled that a plea of alibi must be proved with absolute certainty so as to completely exclude the possibility of the presence of the person concerned at .
the place of occurrence. Such, however, is not the case here. Therefore, the discussion of the case diaries, which engaged a substantial portion of the High Court judgment, was really an exercise in futility.
42. Their Lordships of Hon'ble Supreme Court in Binay of Kumar vs. State of Bihar, AIR 1997 SC 322 have held that once the prosecution succeeds in discharging the burden it is incumbent rt on the accused, who adopts the plea of alibi to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter evidence adduced by the accused to the effect that he was elsewhere when the occurrence happened. Their Lordships have held as under:-
22. The Latin word alibi means " elsewhere" and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is basic law ::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 35 that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere .
fact that the accused had adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, of to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of rt occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the Court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the Court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. This Court has observed so on earlier occasions (vide Dudh Nath Pandey v. State of Uttar Pradesh, (1981) 2 SCC 166 :
(AIR 1981 1 SC 911); State of Maharashtra v. Narisingrao Gangaram Pimple, AIR 1984 SC 63).::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 36
43. The conspectus of the events, as noticed above, goes to show that the relations between the accused and the deceased were strained, the accused used to quarrel with the deceased over .
monetary matters and suspect her character. The prosecution has succeeded in leading evidence that the accused, his son PW19 Ashish Kumar and the deceased were in one room in the night of 21.5.2009.
It was for the inmates of the house to give cogent explanation as to of how the crime was committed. The deceased was murdered in the dwelling house, where the accused used to reside with his son PW19 rt Ashish Kumar. There were ante mortem injuries on the person of the deceased. The accused has failed to offer any explanation how his wife (deceased) received injuries and the stand taken by the accused that the deceased died due to asthma found to be false as per the medical record. Thus, it is a strong circumstance which indicates that he is responsible for commission of the crime. Moreover, the strained relations of the accused with the deceased, in the absence of any plausible and satisfactory explanation having been given by him, do point to his guilt.
44. In the case in hand, the accused has been charged with and tried for the murder of his wife having taken place inside his house at Bagga, where he was living with his son, Ashish Kumar ::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 37 and the deceased. The accused has failed to give a plausible explanation for the cause of death of the deceased in his statement under Section 313 Cr.P.C. The death of his wife has occurred in his .
custody. The mere denial of the prosecution case coupled with absence of any explanation is inconsistent with the innocence of the accused, but is consistent with the hypothesis that it is the accused who has committed the murder of his wife. Moreover, the medical of evidence discloses that the deceased died of manual strangulation and not on account of asthma as per the defence taken by the accused. rt
45. It is not in dispute that the deceased was murdered in the dwelling house. When it is not the case having been set up by the accused that there was a possibility of an outsider to commit the offence, it is for the accused being husband of the deceased to explain the ground for unnatural death of his wife. Therefore, the chain of circumstances is complete and it is the husband who has committed the murder of his wife by manual strangulation. The prosecution has proved its case beyond reasonable doubt against the accused for an offence punishable under Section 302 of the Indian Penal Code.
46. Accordingly, the appeal is allowed and the impugned judgment, dated 18.8.2010 rendered by the learned Additional ::: Downloaded on - 15/04/2017 20:56:01 :::HCHP 38 Sessions Judge, Fast Track Court, Solan, District Solan, in Sessions Trial No. 12 FTC/7 of 2009 is set aside. The accused is convicted for an offence punishable under Section 302 of the Indian Penal Code.
.
He be produced in the Court to be heard on the quantum of sentence on 4.8.2016. The bail bonds are cancelled.
47. The registry is directed to prepare the production warrants.
of
(Rajiv Sharma)
Judge
rt (Sureshwar Thakur)
Judge
August 1, 2016
*pankaj*
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