Allahabad High Court
Ashok Kumar & Others vs State Of U.P. on 19 March, 2018
Author: Rajeev Misra
Bench: Amreshwar Pratap Sahi, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 40 A.F.R. Case :- CRIMINAL APPEAL No. - 2156 of 2011 Appellant :- Ashok Kumar & Others Respondent :- State Of U.P. Counsel for Appellant :- N.K. Sharma Counsel for Respondent :- Govt. Advocate Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Rajeev Misra,J.
The learned Additional District & Sessions Judge, Fast Track Court-3 Jalaun at Orai has convicted all the four appellants of having committed the alleged offence of murder of one Smt. Priti aged about 20 years, the wife of the appellant Ashok Kumar to whom she was married a year ago. The husband his two brothers Pappu and Prabhat as well as their father Om Prakash had been charged under the offences under Section 498-A read with Section 304 B read with Section 3/4 Dowry Prohibition Act initially, but later on after recording the testimony of the witnesses of the prosecution particularly, P.W.1 to P.W.5 and the Court having declared them hostile at the instance of the prosecution, the charges were altered under Section 302/34 IPC, and consequently all the appellants were tried simultaneously in Session Trial No. 254 of 2009 along with Session Trial No. 255 of 2009, arising out of Case Crime No. 390 of 2009 and were finally convicted with life imprisonment and a fine of Rs. 1000/-. In the absence of deposit of fine, the appellants have to undergo further two months imprisonment.
Aggrieved all the appellants have joined together in this appeal and have prayed for setting aside the conviction and sentence awarded to them by the trial Court as mentioned above mainly canvassing that the deceased had committed suicide being frustrated of her ailment and inability to bear a child.
The prosecution story in brief is, that information was received at the Police Station through a written report dated 12.07.2009 of Ram Kumar, the village Chaukidar who has been examined as P.W.3 about the incident having occurred at 11:00 am on the same day. On receipt of such information, the Investigation team consisting of the Investigating Officer as well as the constables on duty arrived on the spot whereafter an inquest was carried out which has been exhibited as Ka-9. According to the opinion of the inquest witnesses, the death of Smt. Priti was caused on account of burning. The inquest report gave a description of the status of the site and the burn injuries. The body was sent for post-mortem and a recovery memo was also prepared on the same date which is Exhibit-Ka-14. A site plan was prepared by the Investigating Officer namely the Circle Officer Mr. Arun Sirohi which is dated 16th July, 2009 and was exhibited as Exhibit-Ka-6 on record. The post-mortem was carried out on the next day on 13th July, 2009, and the same is exhibited as Exhibit-Ka-3 on record.
The matter was committed to the sessions Court and initially the charges under Section 304-B read with the other sections referred to herein above were framed on 19th January, 2010. However, P.W.1 was examined on 22nd March, 2010, P.W.2 was examined on 31st March, 2010, P.W. 3 Ram Kumar the informant was examined on 1st May, 2010 and P.W.4 was examined on 24th May 2010. Two other prosecution witnesses P.W.5 and P.W.6 were examined on 8th June, 2010.
The prosecution made a request for declaring the witnesses hostile and they were declared as such. On their initial statements having been made, the court proceeded to frame the alternate charge under Section 302/34 IPC on 1st July, 2010.
Thereafter the deposition of P.W.1 was continued on recall on 25th October, 2010 whereafter the formal witnesses including Dr. Avnish Kumar who carried out the autopsy and the concerned Police Officials including the Investigating Officer P.W.9, P.W.10 were all examined. The Nayab Tehsildar an official of the rank of a executive Magistrate in whose presence the inquest was carried out, came to be examined on 15th January, 2010. On conclusion of the recording of the statements of the prosecution witnesses and after their cross-examination, the statement of the accused under Section 313 Cr.P.C. was tendered on 1st February, 2011.
The trial court then proceeded to assess the evidence and concluded that firstly the circumstance of the presence of the body of the deceased inside the premises and in the room of the appellant Ashok Kumar, clearly indicated that death was on account of burn injuries, and Ashok Kumar being the husband and the other family members having fled away, clearly indicated that they have absconded after having disposed of the body that resulted in the burn injuries and death of the deceased. These circumstances including the cause of death on account of burning and the absence of the accused having fled away from the scene was a clear pointer towards the involvement of accused.
On the hostility of the witnesses, the trial court concluded that they had been won over and consequently, they were not worth believing to the extent they had turned hostile, but the date time and place of incidence as well as the manner of occurrence stood proved which could not be dislodged by the defence. Resultantly the only conclusion that could be arrived at was the involvement of the accused, the probability whereof was eminent looking to the cause of death due to burning and the near proximity of the accused residing under the same roof.
The trial Court further held that the accused were unable to discharge their burden by giving any explanation or coming forward with any explanation about the circumstances in which the deceased could have possibly committed suicide in view of the stand taken by the accused in their statement under Section 313 Cr.P.C. that the deceased on account of a long ailment and not being able to produce a child had developed a frustration that led her to commit suicide. This factum as suggested on behalf of the defence in the statement under Section 313 Cr.P.C. was taken to be an additional incriminating circumstance to conclude that the appellants having failed to discharge their burden or having proved suicide, the same clearly pointed to the involvement of the accused.
The trial Court also assessed the evidence in relation to the broken door of the premises of the room in which the dead body was found. The trial Court noticed that there was only one door in the room for any passage that has been recorded in the inquest report about which there is no explanation by the defence, nor any cross-examination has been conducted in order to counter the existence of such fact leading to the inference that the said premises could not have been entered into otherwise also by any one else apart from the household inmates.
The trial Court also took into account that after the lodging of the F.I.R. and during investigation, the prosecution witnesses who turned hostile had given affidavits to support the prosecution story but otherwise also they had made allegations of the accused having harassed the deceased for demand of dowry. The trial Court however recorded that these affidavits could not be proved. When the charge came to be altered at the instance of the prosecution, the testimony upon cross examination was found by the trial court to be acceptable to the extent that the prosecution had discharged its initial burden of bringing the circumstances on record that were sufficient to establish the links of the chain of events to establish that it was a case of homicide amounting to murder. Accordingly, the onus shifted on the defence to explain as to how and in what circumstances, the deceased met her death. The trial Court after assessing the natural circumstances that could have led to the happening of the incident and the conduct of the accused came to the conclusion that the defence that had set up a plea of suicide and the issue of ailment of the deceased having failed to establish the same, this was not a case of suicide but was of homicide. Consequently, assessing the circumstances, the Court arrived at the conclusion that the involvement of the accused cannot be ruled and the excuse set up by them was unbelievable. The trial court, therefore, took the view that the absconding of the appellants from the scene of occurrence was by itself a sufficient indication that they had realized the consequences of the guilt. In view of the attending circumstances and the corroborative material on record including the inquest and post-mortem report, there was no doubt that the deceased had been done to death by a deliberate act of burning. The Trial Court accordingly convicted all the appellants on the charge of murder under Section 302/34 IPC.
Sri N.K.Sharma learned counsel for the appellants while advancing his submissions has impeached the judgment of the trial court primarily on two grounds namely that all the witnesses of fact namely PW-1 to PW-7 have turned hostile and even the statement of the Doctor, PW-8 categorically indicates the probability of the cause of death of the deceased as a suicide. He therefore contends that once these two things are on record and there is no other evidence to link the accused with the commission of the offence, then the chain is not complete and consequently the prosecution has failed to discharge its initial burden of establishing the case beyond reasonable doubt. He submits that not only this, there is no positive and substantive evidence even otherwise on record which could link the appellants with the commission of the offence. He also submits that even though one of the prosecution witnesses namely PW-4 has indicated the absence of the accused from the scene, and being stationed somewhere else, but even if the same is not taken to be a complete alibi, then failure to prove either the suicide or lead any evidence by the defence can not be said to be an incriminating circumstance so as to draw any adverse inference against the accused. In effect he submits that if the initial burden has not been discharged by the prosecution by proving its own case then any absence of the explanation as expected from the accused can not be a ground to sustain the conviction of the appellants.
Sri Sharma has extensively taken the Court to the records of the evidence and has pointed out that the hostility of the witnesses is not on account of any inducement or otherwise as no such evidence is on record and therefore the conclusion drawn by the trial court that the witnesses had been won-over by the defence is an absolutely perverse conclusion. He further contends that the inference drawn on the basis of the status of the recovery and the body by itself can not be the basis for construing that the accused were present and they had committed the offence. As a corollary to the said argument he further submits that merely because the accused are alleged to have absconded from the scene will by itself be not sufficient to conclude that all the links in the chain of circumstances lead to only one conclusion namely the alleged guilt of the appellants.
He has invited the attention of the Court to several judgments to substantiate his submissions and has urged that the judgments relied on by him leave no room for doubt, that if the prosecution has failed to discharge its initial burden of firmly establishing its case then in that event the case can not be said to have been proved beyond reasonable doubt and consequently the trial court committed a manifest error in recording a conviction on the basis of its own inferences which according to him do not travel beyond surmises and conjunctures. He submits that in order to establish a particular fact a mere suspicion or a doubt can not take the place of proof and in the given circumstances of the case there is hardly any evidence that may point out towards the involvement of the appellants in the commission of the offence for which they have been charged.
He submits that there was complete absence of mens rea and for that he has invited the attention of the Court to the fact the prosecution began its investigation on the charge of a strong motive alleged to be a demand of dowry which later on failed and was dropped by the prosecution itself. He therefore contends that motive having been eliminated and the charge having been converted under section 302/34 I.P.C., the absence of direct evidence clearly makes out this case to be that of circumstantial evidence. He submits that if this is the situation, then motive does assume an importance when the case is based only on circumstantial evidence. The prosecution having failed to establish the motive, the evidence led which does not link all the circumstances together cumulatively, can not be deemed to be sufficient to allow a conclusion of beyond reasonable doubt against the appellants. He therefore submits that even if no positive defence evidence was led by the appellants, the prosecution on the strength of the insufficient and unconvincing evidence brought before the Court was not able to bring home the charges so as to warrant a conviction. He therefore contends that the judgment of the trial court suffers from factual and legal infirmities and consequently the same deserves to be set aside and the appellants deserve to be acquitted.
Countering the said submissions Sri Sageer Ahmad, learned A.G.A. for the State has urged that the prosecution while discharging its initial burden of proving the case set up by it has firmly established that there was a marriage and that the accused Ashok Kumar is the lawfully wedded husband of the deceased Smt. Preeti. The second fact which he says stood established is that the incident is a day time incident stated to have occurred at about 11.00 a.m. inside the room occupied admittedly shared by the appellant Ashok Kumar with his wife. The incident has happened in the same premises and the body of the deceased in a burnt state was recovered from the same premises as is evident from the inquest report. The third fact which Sri Sagir Ahmad contends is established is that the prosecution has discharged its obligation about death having occurred on account of burn injuries.
Sri Sagir Ahmad relying on an Apex Court judgment has urged that the hostility of witnesses is nothing else but a clear case which has been described by the Apex Court as a "compromise culture". He submits that the prosecution witnesses PW-1 to PW-7 have turned turtle either on some inducement or otherwise which may have taken the shape and form of such methods which can be gathered from the consequences of their hostility. He submits that in such a situation that part of the statement of the witnesses, who have turned hostile, and which establishes the factum of the death of the deceased can not be over-looked. The same being substantive evidence, which corroborates the other evidence existing on record including that of the formal witnesses, is sufficient to construe that the prosecution has discharged its initial burden and the onus stands shifted on the defence that has not come forward with any explanation as to how the deceased met her death inside the same premises of which all the appellants are the inmates.
He has further submitted that one of the prosecution witnesses namely PW-4 on cross-examination came up with a case that the deceased had died due to an accidental fire while cooking food. PW-4 is no one else than the real brother of the deceased and he while deposing before the Court has stated that this information was gathered from one of the appellant's Prabhat, that the deceased had died while cooking food. On this he submits that according to the site plan that was prepared during investigation by the Investigating Officer categorically indicates a kitchen but the body of the deceased was not found either in the kitchen nor any kitchen equipments were found so as to have caused an accidental fire in the room where the deceased was found to be dead. He therefore submits that this theory of an accidental death which was narrated by one of the prosecution witnesses has no legs to stand.
He further submits that death due to burning is established but otherwise utilization of the kerosene oil for having set the deceased on fire does not appear to have been established as neither the inquest nor the post-mortem report indicates the existence of the smell of kerosene or its utilization for having set the deceased on fire. On the other hand he contends that the presence of the kerosene can which has been shown in the recovery memo may be an instance of something having been planted before the recovery memo was prepared and such kerosene cans or equipments were not present when the inquest was prepared. He contends that this defence of the appellants that suicide had been committed by the deceased by setting herself on fire therefore does not get established and completely demolishes the hypothesis set up by the defence of a suicide. Coupled with this he submits that if the deceased was a resident of the same premises and if she was found to be dead in the same room as that of the appellant Ashok Kumar and alibi not having been established, the initial burden of establishing the presence of the accused at the scene of occurrence has been discharged. A narration of absconding in the first information report and absence at the time of preparation of the of inquest report as well as the statement by the prosecution witnesses supports his submissions. He submits that the informant PW-3 Ram Kumar tendered the information to the police station after he had visited the residence of the appellants and has categorically stated in the first information report that none of the members of the family were available and they had run away. The inquest was prepared which also narrated that none of the family members were present.
He therefore submits that the absence of all the accused from the scene is established which can also be inferred from the statement of PW-4 who has described the presence of all the four appellants at different places. What he submits is that the question of believing or disbelieving the statement of PW-4 on the issue of the absence of the accused does not arise inasmuch as, it is established according to the statement of the hostile witness himself that the accused were absconding after the occurrence and even at the time of the preparation of inquest report.
He submits that no cross-examination of the formal witnesses including the Investigating Officer namely Arun Sirohi, PW-10 and the Executive Magistrate Mahesh Chandra Pathak, PW-11 has been conducted on behalf of the defence to bring out any such material that may lead to the inference that the appellants were not present at the scene of occurrence.
He therefore, cumulatively, with the aid of the arguments contends that the doubt sought to be expressed on behalf of the defence that the death was either accidental or suicidal is completely ruled out.
He then contends that death being homicidal, the burden stood shifted on the appellants to establish and explain as to the real cause of the death of the deceased who admittedly had died at the young age of twenty in broad daylight in the same premises in the circumstances as narrated hereinabove. He therefore contends with the aid of a large number of judgments to establish that the death being homicidal was a clear act, the assailants whereof were the appellants and no one else. He submits that the judgments of the Apex court and the ratio of other judgments clearly rule that if the entire links are complete then in a case of circumstantial evidence if there is only one probability which can be believed pointing towards the guilt of the appellants, then in that event the conviction has to be sustained. He submits that this case is an example of such circumstantial evidence where the needle clearly points towards the accused and no one else. It is a broad day light incident about which the appellants have failed to give any plausible explanation. He therefore submits that the judgment of the trial court deserves to be affirmed, not only keeping in view the aforesaid facts and circumstances of the case and the evidence on record, but also the conduct of the appellants which adds to the incriminating circumstances including their statement under Section 313 Cr.P.C. establishing the case beyond reasonable doubt.
Coming to the investigation carried out in this case upon the information being tendered, the first document which deserves to be noticed is the first information report dated 15.07.2009 based on the written report of PW-1 of the same date exhibited as Ext. Ka-1. At the same juncture a reference to the written report that preceded the above, given at the police station by the Village Chaukidar Ram Kumar which is of the same date of the incident, i.e. 12.07.2009, is Ext. Ka-2.
The written report of Ram Kumar who is PW-4 and is a Village Chaukidar recites that at about 11.00 a.m. on 12.07.2009 he was informed of the death of Preeti, aged about 20 years wife of the appellant Ashok Kumar, by caste Barber, to the effect that she had died due to burn injuries. It also recites that the members of the family had run away leaving behind the dead body inside the premises. The information was being tendered for appropriate action.
The investigation proceeded with the recording of statement of the witnesses under Section 161 Cr.P.C.. A spot inspection was made on the date of the occurrence itself and the recovery memo was prepared which indicated the recovery of a container of 5 litres with half a litre of kerosene oil inside it, as well as a plastic box and a tin box that were also found besides the same. Other materials, namely blue and red coloured burnt clothes which appeared to be part of the dress of the deceased was also found and the same was sealed infront of the available witnesses. The inquest report was prepared which began at about 01:30 pm in the afternoon and concluded at 14:15 pm of the same day.
The inquest report describes the position of the body lying in the room from which it was recovered and also the material that was found to be existing on the body of the deceased which indicated charred eartops blackened with soot, a couple of bangles of red colour together with another binding thread described as "Kalawa". Other items that were found on the body have also been described and the status of the body lying in a particular position was also noted. It was however, specifically noted that none of the members of the family was present when the inquest report was prepared.
While describing the status of the body, the inquest report recites that the tongue was partly protruding and the eyes had bulged out, the mouth was closed and both the hands were in a folded position in the front. The entire body was in a burnt state and there was mucous oozing out of the nose. The cause of death in the opinion of the witnesses to the said inquest were burn injuries but in order to know the real cause of death, the body wad advised to be sent for post mortem.
There is one more special fact which deserves notice, that since the case was reported as a bride burning case, an Executive Magistrate of the rank of Nayab Tehsildar had witnessed the inquest proceedings alongwith the police officials whose presence is indicated in the report that was prepared by him on 12th July, 2009.
The body was dispatched for post mortem that was carried out on the next day i.e. 13th July 2009. The body was received in a sealed bundle and was described as one day old. The cause of death indicated was ante-mortem burn injuries and death had occurred due to shock on account of such fatal burn injuries. The entire body from head to toe was in a burnt state with 100% burn injuries of the first and second degree. Food was found inside the stomach and the bundle which had been received after post mortem was handed over with all the items that had been shown in the description roll accompanying the dead body, including two glass bangles in pieces that were also handed over to the police constables.
The written report dated 15.07.2009 filed by PW-1 the father of the deceased that led to the registration of a formal FIR recites that the marriage of his daughter took place on 10.06.2008 about one year ago and the in-laws being not satisfied with the dowry, they had been mounting pressure for more dowry in the shape of a motor-cycle and Rs.50,000/- in cash in addition to what he had already spent. This led to the harassment of his daughter and in order to resolve the controversy, after having come to know of these complaints from his daughter, he along with one of his cousin in-laws Santosh went to the house of his daughter and tried to satisfy the members of the family that he had done whatever was within his means. On 15.07.2009 he was informed that the in-laws of his daughter on 12.07.2009 had set fire to his daughter after sprinkling kerosene oil and she had died. On receiving the said information he had rushed to his daughter's place where he was informed that the dead body had been sent for post-mortem to Orai consequently he was tendering his written information report taking appropriate action. The First Information Report, therefore set out the case of dowry death.
The charge-sheet was filed against three of the appellants dated 3rd September 2009 and against the appellant Om Prakash which is dated 25th September, 2009 after they had surrendered in Court.
The prosecution commenced with the deposition of all the witnesses of fact from PW-1 to PW-7, and the first statement was that of Raju, PW-1 on 22nd March, 2010. PW-1 was declared hostile after his initial examination-in-chief, even though he admitted the written report which was exhibited as Ka-1. He, however denied the entire story relating to the dowry death of his daughter and on the request of the ADGC Criminal, on such statement being given, he was declared hostile whereafter the cross-examination commenced by the Government prosecutor. The defence cross examined him thereafter and according to the statement of PW-1, the information about the death of the deceased was given by the appellant Ashok Kumar. It was also stated that when he arrived at the house of his daughter, he found that the doors of the room, from where the dead body was recovered, was broken. He further stated that the deceased had caught fire while she was trying to lift the can of the kerosene oil which fell on her and therefore neither Ashok Kumar nor his family members can be held guilty for the same.
With the aforesaid disclosures, he further stated, that he had knowledge of the case proceedings and that he did not deliberately avoid giving his statement in Court. He also stated that no attempt had been made by him to enter into any compromise with the accused outside the Court nor he had entered into any such compromise that could have prevented him to come and depose before the Court.
The next statement that was recorded was that of Smt. Sangeeta, PW-2 who is the mother of the deceased. She narrated that her daughter was well read and that she had no difficulty nor had she faced harassment at her in-laws place but at the same time she also stated that she was not ill or suffering from any ailment. However, she also turned hostile, on the issue of demand of dowry and any such statement having been recorded by the Investigating Officer during investigation.
The third statement that was recorded was that of PW-3, Ram Kumar, the village Chaukidar, who was the first person to tender the information to the police about the death of the deceased on 12.07.2009. We may note that PW-3 after having seen the document which was the written information given at the police station on 12th July 2009, he verified the same and proved it. He admitted his signatures on the said document but at the same time he also turned hostile narrating that he had not dictated the contents of the said document nor had he tendered it in the police station. The ADGC Criminal sought permission of the Court and the said witness was declared hostile whereafter the ADGC Criminal proceeded to cross-examine him. The said witness went on to deny the fleeing away of the appellants from the scene of occurrence and as a matter of fact also went on to depose before the Court that it is wrong to allege that since he had good relations with the appellants therefore, he was turning hostile.
The cross-examination by the defence led to further statements by PW-3 which for the first time set up the alibi on behalf of the defence. On suggestions being put by the defence, he said that it is correct to say that the accused Prashant Kumar was living at his aunt's place in village "Aiyaana" when the incident occurred. In the same tenor, he also stated that the accused Pappu who is working in a factory in Delhi was living in Delhi for the past several years and at the time of incident Pappu was at Delhi. In the same way the said witness also stated that the appellant Om Prakash, who is the father of all the three other accused, is working as a Secretary in a Co-operative Society and on the date of the incident, he was on duty executing recoveries on behalf of the society in Village "Nunaicha".
Coming to the husband, namely Ashok Kumar, the said witness categorically stated that Ashok on the date of the incident had gone to tend to his fields and was not present at the time of the incident. Simultaneously, he also stated that Ashok Kumar had started living separately from his father long back, and his Kitchen as well as his residence were both separate. When he was examined by the Court, he did admit that the accused-appellants were his neighbours and that at the time of the incident he was also present in some part of the village where he received information from some person about the incident. On being further examined, he said that he did not remember the name of the person who gave this information. He however admitted that the information was received by him within half an hour of the incident. Thus, this witness who is a village Chaukidar and who can be one of the main links in the evidence set up by the prosecution had also wavered to the extent as indicated in his statement.
PW-4, Rahul is the real brother of the deceased who also did not support his stand during investigation and rather went out to suggest the death of his sister as accidental while cooking food. PW-5 is the real aunt of the deceased. She also denied having heard any incident of harassment and she also turned hostile while deposing on 8th June 2010. The same is the position of Satya Narayan PW-6 the husband of PW-5.
The maternal uncle of the deceased Jeetu who was examined as PW-7 sailed in the same boat. All these witnesses, therefore right from PW-1 to PW-7 were got declared as hostile by the prosecution as indicated above.
Raju, PW-1 was re-examined on 25th October, 2010. Upon being recalled, he again reiterated his stand and denied having entered into any compromise and also expressed his inability to disclose as to who had first informed the police and as to how the inquest and the post mortem was carried out.
Then commenced the examination of the formal witnesses, namely Dr. Avanish Kumar who had carried out the post mortem as PW-8, Yashwant Singh, the Constable Clerk who had transcribed the FIR as PW-9, Arun Sirohi, the Circle Officer who was the Investigating Officer as PW-10 and Mahesh Pathak, the Nayab Tehsildar who was the Executive Magistrate present at the time of the preparation of the inquest report and recovery memo as PW-11.
It will be appropriate to note at this stage that PW-8 has proved the post mortem report. He has clearly deposed that carbon soot particles were found in the trachea of the deceased. He has also stated that the death of the deceased must have taken place between 11:00 am and 12:00 noon on the date of the incident. On cross-examination by the defence, he stated that there was no sign of struggle on the deceased but the deceased had suffered 100% burn injuries. On this count, he further added that it can be said that the deceased had either immolated herself or could have been set on fire by somebody else. The last sentence, however categorically stated that there is a greater probability of the deceased having met her death by self immolation. On a query by the Court, he categorically stated that there was no part of the body which could be said to have not been burnt.
The Clerk Constable, Yashwant Singh deposed as PW-9 and proved the contents of the FIR recorded by him.
The Investigating Officer, Arun Sirohi was examined as PW-10. He testified, the investigation upon the receipt of the report and also substantiated the inquest and the recovery. He also narrated the manner of arrest and surrender of the accused and then the recording of statements under Section 161 Cr.P.C. of the witnesses referred to hereinabove. The defence cross-examined him on which he categorically stated that he had come to know that the appellant Om Prakash and Pappu were both present on the date when the incident had occurred. He denied having any information of their being away from the village. There were other queries relating to the affidavits but he categorically stated that the place from where the body was found is a room said to be that of the appellant, Ashok Kumar and that the Kitchen was beside the said room. He however submitted that there was only one door in the room from where the body was recovered. He also stated that he had come to know that the family was living together but the said fact is not recorded in the case diary. A perusal of the said statement of the Investigating Officer nowhere indicates any further cross-examination by the defence in respect of the evidence that was brought forth by the prosecution.
P.W. 11 Mahesh Chand Pathak was examined, who deposed having prepared the inquest report and also the recovery of the containers that were described to be of kerosene oil, other recoveries including the burnt parts of the clothes of the deceased as also the jewellery on the body of the deceased. He further categorically stated that the bangles that were found on the hand of the deceased were not broken, but the same was not described in the inquest report. He on a suggestion by the defence about the existence of container of kerosene oil denied planting of any such evidence.
It is thereafter that the statement under section 313 Cr. P. C. of the accused was tendered. While answering question No. 3 the accused Ashok Kumar replied that the entire evidence led, that of P.W. 3, P.W.8, P.W. 9, P.W. 10 and P.W. 11, are based on in-correct information having been tendered to the Investigating Agency. It is to be noted that the said query also related to P.W. 3 Ram Kumar, the Village Chaukidar, who had turned hostile and had made certain statements referred to herein above. At the end, the accused Ashok Kumar categorically stated that the deceased on account of her ailment had set herself on fire and committed suicide.
The same is the status of the statements made by other accused Prabhat Kumar, Pappu and Om Prakash.
The Trial Court after having assessed the evidence and as indicated above, concluded that the accused appellants were unequivocally responsible for the death of the deceased, the death having taken place in their own premises during day light hours at 11 a.m. The Trial Court, however, recorded the fact that there was absence of motive as the witnesses had turned hostile and the initial case set up by the prosecution of dowry death had not been proved. The Trial Court, therefore, after discussing the statements of the witnesses and conduct of such witnesses becoming hostile came to the conclusion that they had been won over. The Trial Court further recorded that the fact that the death of the deceased was unnatural remains undisputed and that she was found dead inside the room of the premises of the appellants also remains undisputed, therefore, there is no occasion to seek any further indicators like direct ocular testimony either of the parents of the deceased or of any villagers.
The Trial Court then went on to hold that the onus shifted on the appellants to establish that they were not involved in the commission of the offence, once the body was found in a room with a broken door that was the only passage of egress and ingress in the premises. The suggestion of the defence that the deceased had locked herself inside the premises was not believed by the Trial Court on the ground that no independent witness or circumstance had been pointed out to explain as to how the door was broken, when the police had arrived and the inquest was carried out. The defence also did not cross examine the Investigating Officer on this issue and this by itself, therefore, was taken to be an incriminating circumstance to construe that the defence had been unable to offer any valid explanation.
On the issue of hostility as already indicated above, the Trial Court held that they had been won over and while discussing the evidence with regard to the presence of the accused, the Trial Court came to the conclusion that no independent witness was produced by the defence to establish that one of them was at Delhi, the other was discharging his duty as a Public Servant, one of them was at his aunt's place and the husband was tending to his field. In these circumstances, the Trial Court concluded that all the accused were very much present when the deceased was done to death as she had suffered 100% burn injuries and that she had not committed suicide.
It is this finding of the Trial Court countered by Sri Sharma by inviting the attention of the Court to the inquest report as well as the post mortem report contending that no other injuries were found on the body of the deceased externally and this fact stood corroborated by the statement of the doctor, who also stated that there were no signs of struggle so as to indicate that the deceased was under such pain that led her to either struggle or resist herself before her death. He, therefore, submits that this is not a case of homicide, but of a suicide, as the deceased had in all probability voluntarily caused her death.
We have considered the submissions raised and have gone through the entire records as also the circumstances as indicated on behalf of the appellants and that on behalf of the prosecution by the learned A.G.A.
At the very outset, we find that there is no dispute about certain facts. First is the death of the deceased on 12th July, 2009 at about 11:00 am and her cause of death being 100% burn injuries. The circumstance of her death inside the room of her husband Ashok as per the site plan and the statement of the formal witnesses establishes that it is not a strange place, but the own house hold of the deceased where all the inmates including the accused lived. It is something different that the other accused apart from the husband may not have been present on the date of the incident.
It is undisputed that she was lawfully married wife of the appellant Ashok Kumar. It is also undisputed that initially when the F.I.R. was lodged and the Investigating Officer proceeded, the charge submitted was one under sections relating to dowry death. It is also undisputed that the charge came be altered after the witnesses of fact namely P.W. 1 to P.W. 7 turned hostile. In the above back ground what is also evident is that the issue of demand of dowry and the immediate cause of motive also stood dissolved with the alteration of charges. Thus all the appellants claimed to be tried for the offence of murder read with ingredients of section 34 I.P.C.
In order to further analyze the arguments advanced in depth, there is one circumstance, which emerges to be almost non existent is that of the theory of accidental death being caused on account of an accidental fire having caught the deceased while cooking food. We may refer to the statement of P.W. 4 Rahul, who is the brother of the deceased. He in his cross examination stated that one of the accused Prabhat, who is the younger brother of the appellant, Ashok informed him that his sister had died an accidental death. This in our considered opinion on the basis of the evidence on record is totally ruled out. Firstly because this was not the information tendered in the F.I.R. and secondly because of the body having been found not in the kitchen, which is next to the room, where the deceased was actually found. It is further evident that there was no material or evidence to indicate that the deceased had visited the kitchen and had caught fire and had travelled up to the room where she was found dead. There is no evidence that any kitchen utensils or equipments like a stove were found inside the room where she had died after having caught fire. Thirdly as indicated above, neither the recital in the written report nor any evidence to that effect was led to support this suggestion that the death was accidental. Consequently, the theory of an accidental death in the case stands eliminated.
The next question, which has to be addressed and which would be as to whether the death of the deceased is homicidal as urged on behalf of the prosecution or suicidal as urged on behalf of the appellants.
The inquest report only describes death on account of burn injuries. It nowhere records the death to be either homicidal or suicidal. The injury is reported to be cent-percent. The post mortem report categorically recites that the death was caused due to shock on account of ante-mortem fatal burn injuries. The report also recites that carbon particles were found in the trachea. It also discloses that the body suffered from 100% burn injuries. However, while describing the degree of injuries, the post-mortem report recites it to be of first and second degree burn injuries. It may be noted that the post-mortem report does not indicate third degree burn injuries.
At this stage while discussing the post-mortem report, the Court has to look into the authorities that have to be taken into account in relation to the expert medical evidence that may be necessary to be relied upon for the purpose of construing the nature of the injuries. The question as to whether the injuries are ante-mortem or post-mortem came to be considered elaborately by the Apex Court in two decisions namely that of Mulakh Raj Vs. Satish Kumar & Others 1992 (3) SCC 43 and that of Mulak Raj & Others Vs. State of Haryana 1996 (7) SCC 308. While discussing the nature of injuries as to whether in a case like this as to whether the injuries are ante-mortem or post mortem, the Apex Court has arrived at the conclusion that if carbon soot particles have been found in the trachea, then in that event it would be safe to conclude that the burn injuries are ante-mortem in nature.
Applying the principles of said decisions on the facts of the present case and the post-mortem report referred to herein above, there is no doubt that the burn injuries were ante-mortem in nature and therefore, the deceased was subjected to flames of fire alive. The conclusion drawn in the post-mortem report, therefore, appears to be correct that the deceased had died due to 100% burn injuries that were ante-mortem in nature. This fact has also been supported by the Doctor namely Avanish P.W.8. He has categorically stated and verified the aforesaid fact as also the timing of the death.
Thus from this evidence, it is conclusively established that the deceased had died an unnatural death having sustained burn injuries that were 100% and were of the first and second degree. There is one factor in the statement of the Doctor on which heavy reliance has been placed by learned counsel for the appellant to contend that the evidence led by the prosecution itself leaves no room for doubt that it was a case of suicide. For this, learned counsel for the appellants has urged that in his cross examination, the Doctor after having admitted that the cause of death is due to 100% burn injuries has further stated that the deceased could have immolated herself or she could have been set on fire but on a suggestion made, he categorically stated that there is a higher degree of probability of the deceased having immolated herself. It is this statement on which emphasis has been laid by Sri Sharma, learned counsel for the appellants to contend that if the Doctor's opinion is final then in that event the prosecution itself has brought evidence on record that the death of the deceased was on account of self immolation which is a case of suicide and not of homicide. This evidence therefore does not establish homicide beyond reasonable doubt.
Countering the said submissions, the learned A.G.A. has urged that this suggestion made to the Doctor and his answer only indicates an advisory suggestion which cannot amount to an expert's opinion. He contended that the Doctor himself has accepted that it is possible that the deceased may have been burnt to death or she could have immolated herself. The suggestion that there is greater probability of having immolated herself is based on no expert opinion and such a material cannot give any advantage to the appellant. His contention therefore is that a mere advisory opinion of the Doctor cannot be taken to be a conclusively proved fact that it was a case of suicide.
Sri Sharma, learned counsel for the appellants, on the other hand, contends that the prosecution itself started with the case of dowry death alleging false motive against the appellants. Having failed to establish the said motive, the prosecution cannot now impeach its own evidence of medical opinion to construe otherwise. He further submits that the burn injuries are clearly without any struggle which fact has also been testified by the Doctor himself. In the absence of any such medico legal evidence and any direct testimony, the prosecution has not been able to establish the death of the deceased to be a homicide beyond the reasonable doubt.
We may at this stage, point out that the fact that there are no external injuries, are borne out from the post-mortem report itself, but at the same time we are unable to convince ourselves to believe that glass bangles were found intact after the deceased had suffered 100% burn injuries and there was some other material in the shape of "Kalava" (a thread around the wrist of the deceased) that remained unburnt. The conclusion therefore, on the basis of such medical evidence and the suggestion on behalf of the appellants of Kerosene having been utilized, does not appear to have been established as the post-mortem report, and the inquest report no where indicates kerosene oil having been utilized as a material, the result whereof may be burn injuries caused to the deceased. The opinion of the witnesses to the inquest and the description therein nowhere suggests the smell or stench of kerosene oil. The post-mortem report also does not suggest any such symptoms. The hypothesis of accident has already been ruled out as indicated above through any instrument that may have utilized kerosene as one of the ingredients. Consequently, the medical opinion and the surrounding circumstances that we are to discuss hereinafter, do not convince us to believe the cause of death of the deceased to be a case of suicide.
We are inclined to agree with the argument of the learned AGA that the doctor's opinion of greater probability of suicide could be inferred, is only advisory and not on any sound medical or legal principle.
The question then arises is that if the death of the deceased is a homicide then whether the appellants are linked to such commission of an offence or not. It is here that the statement of the witnesses now require to be cautiously read even if they are hostile. The hostility of the witnesses by itself, has been ruled by the Apex Court in the following cases, are not to be discarded in their entirety, subject to the caution as prescribed in the aforesaid judgements. Reference be had to the decisions in the case of Govindaraju @ Govinda Vs. State 2012 (4) SCC 722, Bhajju @ Karan Singh Vs. State of M.P. 2012 (4) SCC 327 and Veer Singh & Others Vs. State of U.P. 2014 (2) SCC 455.
What we find from the evidence that is on record is the statement of PW-3, the village Chowkidar. His statement stands on a different footing as the other prosecution witnesses who are stated to have been won-over and described as such by the the trial court. Ram Kumar P.W.3 has also turned hostile but at the same time his information to the police initially that the family members including appellants had fled away has to be examined.
The prosecution produced the said witness as one of its star witnesses as he was the first witness who informed the police about the death of the deceased. On a cross examination by the defence after having been declared hostile by the prosecution, he stated that the appellant Prashant Kumar was not in the village and was with his aunt in village Aaiyana, District Auraiya. Similarly, the appellant Pappu the brother of the husband was working at a factory in Delhi. Om Prakash, the father was on duty who was working as a Secretary of a Co-operative Society. If the said statement is treated to be partially true then, we do not find any explanation in his statement about the complete absence of the apellant Ashok Kumar who is the husband. He recites that at the time of the incident Ashok Kumar was tending his agricultural field. Pausing for a moment, we may at this stage advert to the difficult task of a Court to infer a fact from certain facts that have been proved.
The Apex Court in the case of Trimukh Maroti Kirkan Vs. State of Maharashtra (Intra) in a matter arising out of such an incident while referring to the decision of the Apex Court in the case of State of West Bengal Vs. Noor Mohammad Umar and others 2000 (8) SCC, 382 held that it is difficult to put the extreme burden on the prosecution to lead such evidence which can only be gathered from those who have proximity with the deceased. It is in this context that the Court proceeded to discuss the presumption that can be raised on the basis of existing facts so as to allow the Court to treat the onus having been shifted on the accused.
In order to substantiate the conclusion of a valid presumption against the accused-husband, the Apex Court has ruled that the onus is on the husband to explain the case of death of a house wife who is normally residing in the same living place with her husband. This presumption in terms of Section 106 shifts the burden on the husband as he is in exclusive possession of the premises and there is no involvement of any outsider. The fact of the happening of an incident inside the premises is presumed to be in the special knowledge of the ocuupier, and it therefore is an onus on the occupier to divulge information about the incident or otherwise reasonably explain his absence or ignorance about the same. The view of the Apex Court discussed elaborately are to be found in paragraph nos. 13 to 18, 20, 21 and 22 in the case of Trimukh Maroti Kirkan Vs. State of Maharashtra 2006 (10) SCC 681.
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 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 Sections 167 and 178-A of the Sea Customs Act in Collector of Customs v. D. Bhoormall 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-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. 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 fails 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 presumptions of fact arising in 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.
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 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 on 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."
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 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 was 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 be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime.
The aforesaid decision has been followed in the case of Raj Kumar Prasad Vs. State of Bihar 2007 (10) SCC 433, in the case of Narendra Vs. State of Karnataka 2009 (6) SCC 61 and in the decision of Gajanan Dashrath Kharate Vs. State of Maharashtra 2016 (4) SCC 604."
Looking to the facts of the present case from the angle of the pronoucement of the Apex court in the aforesaid decisions, as already indicated above, the fact that the deceased was the lawfully wedded wife and was living with the accused Ashok Kumar is undisputed.
At this juncture the role of the other accused if any deserves to be reflected upon. The other accused are Om Prakash, father of Ashok Kumar and father-in-law of the deceased. He is stated to have been discharging his official duties as Secretary of Co-operative Society on the date of the occurrence. Similarly the two brothers of the husband namely Prabhat and Pappu are also stated to be away from the house in the ordinary course of things namely one was at his Aunt's place and other was at Delhi. There is no evidence of these three appellants having been seen either immediately before the incident, or present at the time of the incident or thereafter. There is also no direct evidence of their fleeing away from their household or the village.
At the same time so far as the husband is concerned he is stated to be in the same village and had gone to tend his agricultural fields. This has to be assessed separately as the responsibility of a husband is on a higher footing than the others when it involves his own young newly married spouse.
In such a situation in our opinion the husband namely the appellant Ashok Kumar was definitely not available immediately after the occurrence nor was he available at the time of inquest, but he did not set-up any defence to indicate as to where was he at the time of the occurrence of the incident. To the contrary whatever evidence has trickled down in the shape of the statement of PW-4 the Village Chaukidar, leads to an inference that the husband was in an around the village itself when the incident had occurred. There is no indication or explanation by the husband namely the accused Ashok Kumar as to in what manner he reacted upon the occurrence of the incident inasmuch as he is not stated to be away from the village nor has he made any statement or led any evidence to incidate his presence either by way of alibi or otherwise elsewhere. To us it appears that the factum of the death of the deceased due to burning was clearly in the knowledge of the husband Ashok Kumar as it is for this reason that in the last question put to him in the statement under Sectino 313 Cr.P.C. he has categorically set-up a case of the death of his wife due to self immolation described as a suicide. The said appellant has not come forward with any such explanation as to how and in what manner did the deceased commit suicide. This additional circumstance therefore is an incriminating circumstance which can be read atleast against one of the accused namely the husband Ashok Kumar.
We are persuaded to conclude the above more so when the prosecution witnesses have indicated the separate living of the appellant Ashok Kumar from the other members of the family. Apart from the hostile witnesses the Investigating Officer namely Arun Sirohi PW-10 has also been examined on this issue and the fact that Ashok Kumar was living separately from his father and other brothers even though denied on suggestion, does not appear to have been seriously disputed.
The prosecution therefore could not clinchingly establish beyond reasonable doubt that the entire family was living together and was running a common kitchen. This reflects a severance of the status of the family of the husband from the other three co-accused and therefore in view of the aforesaid circumstances we are inclined to grant a benefit of doubt to the other three co-accused namely Om Prakash, Prabhat and Pappu. The Investigating Officer, PW-10 even though stated before the Court that he had come to know that the other accused were also present, but we do not find any averment by him as to from whom did he gather about the presence of the accused other than the husband. The said averment therefore is only hearsay with nothing to corroborate the same. There is no other evidence led by the prosecution to establish the presence of Om Prakash, Prashant and Pappu or their fleeing away from the village. Thus the prosecution failed to establish the presence of these three appellants beyond reasonable doubt.
However, at the same time as discussed hereinabove the case of the appellant Ashok Kumar stands on a different footing. The argument of the learned counsel for the appellants on the issue of involvement of the accused Ashok Kumar is categorically to the effect that the prosecution has not led any evidence which can be termed as direct evidence involving Ashok Kumar in the commission of the offence on the charge of murder with a common object. For this we have to assess the evidence in the light of legal provisions and the judgment on this score.
Evidence has been defined in Section 3 of the Indian Evidence Act, 1872 as follows:-
"Evidence"- "Evidence" means and includes-
(1) All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry;
such statements are called oral evidence;
(2) [All documents including electronic records produced for the inspection of the Court], such documents are called documentary evidence."
The evidence relating to a fact can be understood from the definition of the word fact which is defined under the same as follows:-
"Fact"- "Fact" means and includes-
(1) anything, state of things, or relation of things, capable of being perceived by the senses;
(2) any mental condition of which any person is conscious.
A fact is stated to be proved according to the Act by the following definition:-
"Proved"- A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
Apart from this, the Indian Evidence Act, 1872 contains a guidance as to the presumption of a fact by a Court while appreciating evidence as to when a fact may be presumed to exist and proved or when the Court shall presume the fact to have been proved. Section 4 of the Indian Evidence Act, 1872 is extracted hereinunder:-
4. "May presume".--Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.
"Shall presume".--Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved:
"Conclusive proof".--When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.
While defining the relevancy of facts Section 8 of the Indian Evidence Act, 1872 also brings within it its fold the conduct of a party in the following terms:-
"........The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
Explanation 1- The work "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.
Explanation 2--When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct is relevant."
On the issue of the burden of proof under Chapter 7 of the Act, Section 106 prescribes the burden of proving a fact on a person especially within the knowledge of that person. Section 106 is extracted hereinunder:-
106. Burden of proving fact especially within knowledge- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
A case where circumstantial evidence is the only available evidence then in such cases, the task of the Court is to find out the motive for the commission of the offence in order to link it with the commission of the crime by an accused. This has to be done by following the principles relating to a conviction or an acquittal in a case arising out of circumstantial evidence. For this reference may be had to the celebrated decision of Sharad Viridhi Chandra Sharda Vs. State of Maharashtra 1984 (4) SCC 116. The principles that were culled out therein have been followed time and again in a large number of cases including the latest decision in the case of State of Himanchal Pradesh Vs. Raj Kumar 2018 (2) SCC 69 where the Court has ruled that an inference of guilt can be drawn in a case based on circumstantial evidence by observing as follows in paragraph nos. 9 and 10 that are extracted hereinunder:-
"9. Prosecution case is based on circumstantial evidence. It is well settled that in a case based on circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established and that those circumstances must be conclusive in nature unerringly pointing towards the guilt of the accused. Moreover all the circumstances taken cumulatively should form a complete chain and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
10. In a case, based on circumstantial evidence, the inference of guilt can be drawn only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. In Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681, it was held as under:-
"12. ...........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 incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence."
The same principle was reiterated in State of Rajasthan v. Kashi Ram (2006) 12 SCC 254, Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731, State of Maharashtra v. Suresh (2000) 1 SCC 471 and State of Tamil Nadu v. Rajendran (1999) 8 SCC 679.
In order to prove the case on the basis of the evidence available whether direct or circumstantial, it is the duty of the prosecution to discharge its initial burden by adducing material on the basis whereof an inference of the commission of an offence involving the accused can be drawn. This discharge of initial burden is mandatory as held in several cases and reiterated in the case of Joydeb Patra and others Vs. State of West Bengal 2014 (12) SCC 444 where in paragraph 10, the supreme Court has ruled as follows:-
10. We are afraid, we cannot accept this submission of Mr. Ghosh. This Court has repeatedly held that the burden to prove the guilt of the accused beyond reasonable doubt is on the prosecution and it is only when this burden is discharged that the accused could prove any fact within his special knowledge under Section 106 of the Indian Evidence Act to establish that he was not guilty. In Sucha Singh Vs. State of Punjab (2001) 4 SCC 375, this Court held:
"19. We pointed out that Section 106 of the Evidence Act 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 prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference."
Similarly, in Vikramjit Singh Vs. State of Punjab (2006) 12 SCC 306, this Court reiterated:
"14. Section 106 of the Indian Evidence Act does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case has been proved the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same. Of course, there are certain exceptions to the said rule, e.g., where burden of proof may be imposed upon the accused by reason of a statute."
Once the initial burden is discharged, then the onus shifts on the accused to explain the status of his innocence or involvement.
In matters arising out of the death of a house wife, to gather as to whether it is an accident or a suicide or a murder, the Apex Court has indicated the manner in which the possibilities and probabilities are to be weighed on the facts of each case. Reference may be made to the decision in the case of Subedar Tiwari Vs. State of U.P. and others 1989 (Supp) Volume 1 SCC 91 where the Apex Court reversed the judgment of acquittal of the High Court and restored the conviction order of the trial court. It went on to hold that on the basis of the evidence on record, the theory of suicide was excluded and that of murder had been established. The Court ruled that once there was a conclusion that there is no accident involved of the death of the deceased in the kitchen due to a fire while cooking and simultaneously there were no circumstances to suggest a suicide, then the Court after having assessed the evidence and having considered the conduct of the husband, upheld the conviction of the accused therein.
The question of burn injuries in a case of death due to hundred percent burns while discussing the medical aspect, the Apex Court in the case of Prabhudayal Vs State of Maharashtra 1993 (3) SCC 573 concluded in paragraph nos. 33 and 38 as follows:-
33. What is to be noticed in the present case is that there are hardly "any cries" as per the defence also by the deceased. This is not possible even in case of suicide. Even if the burns are inflicted with suicidal intent the victim is bound to cry out of pain. Admittedly there was no cries and, therefore, it was not a Case of suicidal burn but the deceased was put in a condition where she could not cry and yet get burnt by third party.
38. As noticed by Pandian, J. in the aforesaid decision, opinion of Taylor in Medical Jurisprudence is quoted below. It reads thus:
"Not uncommonly the victim who inhales smoke also vomits and inhales some vomit, presumably due to bouts of coughing, and plugs of regurgitated stomach contents mixed with soot may be found in the smaller bronchi, in the depths of the lungs."
The version of the prosecution relating to the absonding of an accused has been dealt with in several decisions. The issue of presumption in a case where it is alleged that the accused had absconded, the Apex Court drew an adverse inference against the accused in the case of Subedar Tiwari (supra) but in a later decision in the case of Sunil Clifford Deniel Vs. State of Punjab 2012 (11) SCC 205, the Apex Court in paragraph nos. 30 to 32 held as follows:-
30. Admittedly, the appellant, after handing over the said blood stained clothes to Dr. B. Pawar (PW.1), on 9.3.1996, became untraceable as a result of which, he could only be arrested on 11.3.1996, at 6.00 p.m. Though this circumstance was not taken into consideration by the courts below, the learned standing counsel appearing for the State has relied upon it very strongly indeed before us.
31. This Court has considered this issue time and again and held that the mere act of absconding, on the part of the accused, alone does not necessarily lead to a final conclusion regarding the guilt of the accused, as even an innocent person may become panic stricken and try to evade arrest, when suspected wrongly of committing a grave crime; such is the instinct of self-preservation. (See: Matru v. State of U.P., AIR 1971 SC 1050; State thr. CBI v. Mahender Singh Dahiya, (2011) 3 SCC 109; and Sk. Yusuf v. State of West Bengal, AIR 2011 SC 2283).
32. In view of the above, we do not find any force in the submissions advanced by the learned counsel for the State.
If the accused sets up an alibi and fails to prove the same then the same by itself cannot be a reason to conclude that the prosecution has proved the case beyond reasonable doubt. Thus, a failure to prove alibi may not be of any advantage to the prosecution but can be considered to be another circumstance so as to draw an adverse inference against the accused. For reference see Gurcharan Singh and another Vs. State of Punjab AIR 1956 SC 460.
The burden to prove as to whether the death of the deceased was by an accident in the Kitchen lay on the accused. However, in view of the provisions of Sections 103 and 106 of the Indian Evidence Act 1872, the same does not absolve the prosecution of its initial burden to firmly establish it's own stand as held by the Apex Court in the case of Sawal Das Vs. State of Bihar 1974 (4) SCC 193 paragraph no. 10 is extracted hereinunder:-
"10. Neither an Application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or 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 prima facie case that the question arises of considering facts of which the burden of proof may lie upon the accused. The crucial question in the case before us is: Has the prosecution discharged its initial or general and primary burden of proving the guilt of the appellant beyond reasonable doubt?"
The Apex Court however in the same judgment in paragraph no. 9 has observed, relying on the case of Gurcharan Singh & Another Vs. State of Punjab AIR 1956 SC 460, that an accused having special knowledge of a fact has to come out with an explanation and discharge the burden as transcripted in paragraph no. 9 which is extracted hereinunder:-
"9. Learned Counsel for the appellant contended that Section 106 of the Evidence Act could not be called in aid by the prosecution because that section applies only where a fact relating to the actual commission of the offence is within the special knowledge of the accused, such as the circumstances in which or the intention with which an accused did a particular act alleged to constitute an offence. The language of Section 106 Evidence Act does not, in our opinion, warrant putting such a narrow construction upon it. This Court held in Gurcharan Singh v. State of Punjab(1), that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certainly lies upon him. It is a different matter that the quantum of evidence by which he may succeed in discharging his burden of creating a reasonable belief, that circumstance, absolving him from criminal liability may have existed, is lower than the burden resting upon the prosecution to establish the guilt of an accused beyond reasonable doubt."
Explaining the same principles, the Apex Court in the case of Arvind Singh Vs. State of Bihar 2001 (6) SCC 407 acquitted the husband by explaining a liability cast on the husband, but at the same time observing that it is a social and heinous crime. The Court observed that if direct evidence is not available then circumstantial evidence with reasonable probity and without any break in the link of the chain of events has to be established. The observations made by the Apex Court in paragraph nos. 21 and 24 are extracted hereinunder:-
"21. Mr. H.L. Agrawal, learned senior Advocate, however, emphatically contended that considering the hour of the day and the factum of the wife being burnt and no other explanation coming forth, question of husband escaping the liability of murder does not and cannot arise. We are however unable to lend our concurrence to the aforesaid. While it is true that the husband being the companion in the bedroom ought to be able to explain as to the circumstances but there exist an obligation on the part of the prosecution to prove the guilt of the accused beyond all reasonable doubt. Criminal jurisprudential system of the country has been to that effect and there is neither any departure nor any escape therefrom.
24..........It is undoubtedly a social and heinous crime to have the wife burnt to death but without any proper and reliable evidence, the law court can not by itself also justify its conclusion in the matter of involvement of the husband: direct evidence may not be available but circumstantial evidence with reasonable probity and without a snap in the chain of events would certainly tantamount to a definite evidence about the involvement but not otherwise........."
The Apex Court in the decision of Gajanan Dashrath Kharate Vs. State of Maharashtra 2016 (4) SCC 604 relying on the case of Trimukh Maroti Kirkan (supra) has observed that the burden is on the inmates of the house to offer an explanation about the death of the deceased. Paragraph no. 13 is extracted hereinunder:-
"13. As seen from the evidence, Appellant-Gajanan and his father-Dashrath and mother-Mankarnabai were living together. On 07.04.2002, mother of the Appellant-accused had gone to another village-Dahigaon. The prosecution has proved presence of the Appellant at his home on the night of 07.04.2002. Therefore, the Appellant is duty-bound to explain as to how the death of his father was caused. When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give 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 the accused to offer. On the date of occurrence, when the accused and his father Dashrath were in the house and when the father of the accused was found dead, it was for the accused to offer an explanation as to how his father sustained injuries. When the accused could not offer any explanation as to the homicidal death of his father, it is a strong circumstance against the accused that he is responsible for the commission of the crime."
A perusal of the ratio of the aforesaid judgments on the issue so raised if applied on the facts of the case clearly indicate that so far as the case of the appellant Ashok Kumar is concerned the onus had clearly shifted on him and the fact of his wife having died an unnatural death will be presumed to be in his special knowledge in the circusmtances of the present case.
Not only this the provisions of Section 8 of the Indian Evidence Act are also attracted keeping in view the conduct of the said appellant. There being a complete curtain being attempted on the actual commission of the offence by the said accused therefore leads to the one and only inference that the said special knowledge of the cause of death was very much known to the appellant and he having failed to discharge the said burden the only pointer in the surrounding circusmtances of the case, where there is no outsider involved, leads to the conclusion that the accused Ashok Kumar is guilty of the said offence. There is no explanation by the accused as to why he did not inform anybody in the village including PW-4 the village Chowkidar about the incident and even if it is presumed that he might have come to know later on, then why he did not gather information or how was he prevented from acquiring any such knowledge when he was in the village on the fatal day. To the contrary the other witnesses have admitted of having been informed by appellant Ashok Kumar promptly about the incident. Not only this, there is no explanation by him as to why he did not inform the police. Coupled with this, the defence did not come out with any evidence to substantiate the theory of ailment and frustration of the deceased compelling her to commit suicide. The prosecution witnesses, even though hostile to the extent as discussed have nowhere supported this version of the defence.
There is yet another aspect which deserves consideration in relation to all the witnesses turning hostile. This aspect of the peculiar behaviour of witnesses, probably on inducements through various means, becomes a more disturbing fact when the very near and close relatives while deposing before the Court turn turtle. The genesis of induced hostility, which is in the shape of a compromise culture, came to be discussed by the Apex Court in the case of Ramesh Vs. State of Haryana 2017 (1) SCC 529 where while dealing with the issue of hostile witnesses has made strong observations on the recent phenomena of witnesses turning hostile with a peculiar attitude resulting in serious obstruction in the dispensation of the criminal justice system. The relevant paragraph nos. 39 to 49 of the said judgment are extracted hereinunder:-
"39. We find that it is becoming a common phenomenon, almost a regular feature, that in criminal cases witnesses turn hostile. There could be various reasons for this behaviour or attitude of the witnesses. It is possible that when the statements of such witnesses were recorded Under Section 161 of the Code of Criminal Procedure, 1973 by the police during investigation, the Investigating Officer forced them to make such statements and, therefore, they resiled therefrom while deposing in the Court and justifiably so. However, this is no longer the reason in most of the cases. This trend of witnesses turning hostile is due to various other factors. It may be fear of deposing against the accused/delinquent or political pressure or pressure of other family members or other such sociological factors. It is also possible that witnesses are corrupted with monetary considerations.
40. In some of the judgments in past few years, this Court has commented upon such peculiar behaviour of witnesses turning hostile and we would like to quote from few such judgments. In Krishna Mochi v. State of Bihar(2002) 6 SCC 81, this Court observed as under:
31. It is matter of common experience that in recent times there has been sharp decline of ethical values in public life even in developed countries much less developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power.
41. Likewise, in Zahira Habibullah Sheikh v. State of Gujarat (2006) 3 SCC 374, this Court highlighted the problem with following observations:
40. Witnesses, as Bentham said, are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed and it no longer can constitute a fair trial. The incapacitation may be due to several factors like the witness being not in a position for reasons beyond control to speak the truth in the court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by the court on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle truth and realities coming out to surface. Broader public and social interest require that the victims of the crime who are not ordinarily parties to prosecution and the interests of the State representing by their presenting agencies do not suffer... There comes the need for protecting the witnesses. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that the ultimate truth presented before the Court and justice triumphs and that the trial is not reduced to mockery.
41. The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens it has to ensure that during a trial in Court the witness could safely depose the truth without any fear of being haunted by those against whom he had deposed. Every State has a constitutional obligation and duty to protect the life and liberty of its citizens. That is the fundamental requirement for observance of the Rule of law. There cannot be any deviation from this requirement because of any extraneous factors like, caste, creed, religion, political belief or ideology. Every State is supposed to know these fundamental requirements and this needs no retaliation. We can only say this with regard to the criticism levelled against the State of Gujarat. Some legislative enactments like the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short the "TADA Act") have taken note of the reluctance shown by witnesses to depose against people with muscle power, money power or political power which has become the order of the day. If ultimately truth is to be arrived at, the eyes and ears of justice have to be protected so that the interests of justice do not get incapacitated in the sense of making the proceedings before Courts mere mock trials as are usually seen in movies.
42. Likewise, in Sakshi v. Union of India (2004) 5 SCC 518, the menace of witnesses turning hostile was again described in the following words:
32. The mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witnesses or can put them in a state of shock. In such a situation he or she may not be able to give full details of the incident which may result in miscarriage of justice. Therefore, a screen or some such arrangement can be made where the victim or witnesses do not have to undergo the trauma of seeing the body or the face of the accused. Often the questions put in cross-examination are purposely designed to embarrass or confuse the victims of rape and child abuse. The object is that out of the feeling of shame or embarrassment, the victim may not speak out or give details of certain acts committed by the accused. It will, therefore, be better if the questions to be put by the accused in cross-examination are given in writing to the Presiding Officer of the Court, who may put the same to the victim or witnesses in a language which is not embarrassing. There can hardly be any objection to the other suggestion given by the Petitioner that whenever a child or victim of rape is required to give testimony, sufficient breaks should be given as and when required. The provisions of Sub-section (2) of Section 327 Code of Criminal Procedure should also apply in inquiry or trial of offences Under Section 354 and 377 Indian Penal Code."
43. In State v. Sanjeev Nanda (2012) 8 SCC 450, the Court felt constrained in reiterating the growing disturbing trend:
99. Witness turning hostile is a major disturbing factor faced by the criminal courts in India. Reasons are many for the witnesses turning hostile, but of late, we see, especially in high profile cases, there is a regularity in the witnesses turning hostile, either due to monetary consideration or by other tempting offers which undermine the entire criminal justice system and people carry the impression that the mighty and powerful can always get away from the clutches of law thereby, eroding people's faith in the system.
100. This Court in State of U.P. v. Ramesh Prasad Mishra and Anr. 1996 (10) SCC 360 held that it is equally settled law that the evidence of hostile witness could not be totally rejected, if spoken in favour of the prosecution or the accused, but it can be subjected to closest scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. In K. Anbazhagan v. Superintendent of Police AIR 2004 (3) SCC 767, this Court held that if a court finds that in the process the credit of the witness has not been completely shaken, he may after reading and considering the evidence of the witness as a whole with due caution, accept, in the light of the evidence on the record that part of his testimony which it finds to be creditworthy and act upon it. This is exactly what was done in the instant case by both the trial court and the High Court and they found the accused guilty.
101. We cannot, however, close our eyes to the disturbing fact in the instant case where even the injured witness, who was present on the spot, turned hostile. This Court in Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1 and in Zahira Habibullah Shaikh v. State of Gujarat 2006 SCC 374, had highlighted the glaring defects in the system like non-recording of the statements correctly by the police and the retraction of the statements by the prosecution witness due to intimidation, inducement and other methods of manipulation. Courts, however, cannot shut their eyes to the reality. If a witness becomes hostile to subvert the judicial process, the Courts shall not stand as a mute spectator and every effort should be made to bring home the truth. Criminal judicial system cannot be overturned by those gullible witnesses who act under pressure, inducement or intimidation. Further, Section 193 of the Indian Penal Code imposes punishment for giving false evidence but is seldom invoked.
44. On the analysis of various cases, following reasons can be discerned which make witnesses retracting their statements before the Court and turning hostile:
(i) Threat/intimidation.
(ii) Inducement by various means.
(iii) Use of muscle and money power by the accused.
(iv) Use of Stock Witnesses.
(v) Protracted Trials.
(vi) Hassles faced by the witnesses during investigation and trial.
(vii) Non-existence of any clear-cut legislation to check hostility of witness.
45. Threat and intimidation has been one of the major causes for the hostility of witnesses. Bentham said: "witnesses are the eyes and ears of justice". When the witnesses are not able to depose correctly in the court of law, it results in low rate of conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice delivery system. It is for this reason there has been a lot of discussion on witness protection and from various quarters demand is made for the State to play a definite role in coming out with witness protection programme, at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. A stern and emphatic message to this effect was given in Zahira Habibullah's case as well.
46. Justifying the measures to be taken for witness protection to enable the witnesses to depose truthfully and without fear, Justice Malimath Committee Report on Reforms of Criminal Justice System, 2003 has remarked as under:
11.3 Another major problem is about safety of witnesses and their family members who face danger at different stages. They are often threatened and the seriousness of the threat depends upon the type of the case and the background of the accused and his family. Many times crucial witnesses are threatened or injured prior to their testifying in the court. If the witness is still not amenable he may even be murdered. In such situations the witness will not come forward to give evidence unless he is assured of protection or is guaranteed anonymity of some form of physical disguise...Time has come for a comprehensive law being enacted for protection of the witness and members of his family.
47. Almost to similar effect are the observations of Law Commission of India in its 198th Report , as can be seen from the following discussion therein:
"The reason is not far to seek. In the case of victims of terrorism and sexual offences against women and juveniles, we are dealing with a Section of society consisting of very vulnerable people, be they victims or witnesses. The victims and witnesses are under fear of or danger to their lives or lives of their relations or to their property. It is obvious that in the case of serious offences under the Indian Penal code, 1860 and other special enactments, some of which we have referred to above, there are bound to be absolutely similar situations for victims and witnesses. While in the case of certain offences under special statutes such fear or danger to victims and witnesses may be more common and pronounced, in the case of victims and witnesses involved or concerned with some serious offences, fear may be no less important. Obviously, if the trial in the case of special offences is to be fair both to the accused as well as to the victims/witnesses, then there is no reason as to why it should not be equally fair in the case of other general offences of serious nature falling under the Indian Penal Code, 1860. It is the fear or danger or rather the likelihood thereof that is common to both cases. That is why several general statutes in other countries provide for victim and witness protection."
48. Apart from the above, another significant reason for witnesses turning hostile may be what is described as 'culture of compromise'. Commenting upon such culture in rape trials, Pratiksha Bakshi has highlighted this problem in the following manner:
"During the trial, compromise acts as a tool in the hands of defence lawyers and the accused to pressurise complainants and victims to change their testimonies in a courtroom. Let us turn to a recent case from Agra wherein a young Dalit woman was gang-raped and the rapist let off on bail. The accused threatened to rape the victim again if she did not compromise. Nearly a year after she was raped, she committed suicide. While we find that the judgment records that the victim committed suicide following the pressure to compromise, the judgment does not criminalise the pressure to compromise as criminal intimidation of the victim and her family. The normalising function of the socio-legal category of compromise converts terror into a bargain in a context where there is no witness protection programme. This often accounts for why prosecution witnesses routinely turn hostile by the time the case comes on trial, if the victim does not lose the will to live.
In other words, I have shown how legality is actually perceived as disruptive of sociality; in this instance, a sociality that is marked by caste based patriarchies, such that compromise is actively perceived, to put it in the words of a woman judge of a district court, as a mechanism for 'restoring social relations in society'."
49. In this regard, two articles by Daniela Berti delve into a sociological analysis of hostile witnesses, noting how village compromises (and possibly peer pressure) are a reason for witnesses turning hostile. In one of his articles, he writes:
"For reasons that cannot be explained here, even the people who initiate a legal case may change their minds later on and pursue non-official forms of compromise or adjustment. Ethnographic observations of the cases that do make it to the criminal courtroom thus provide insight into the kinds of tensions that arise between local society and the state judicial administration. These tensions are particularly palpable when witnesses deny before the judge what they allegedly said to the police during preliminary investigations. At this very moment they often become hostile. Here I must point out that the problem of what in common law terminology is called "hostile witnesses" is, in fact, general in India and has provoked many a reaction from judges and politicians, as well as countless debates in newspaper editorials. Although this problem assumes particular relevance at high-profile, well-publicized trials, where witnesses may be politically pressured or bribed, it is a recurring everyday situation with which judges and prosecutors of any small district town are routinely faced. In many such cases, the hostile behavior results from various dynamics that interfere with the trial's outcome-village or family solidarity, the sharing of the same illegal activity for which the accused has been incriminated (as in case of cannabis cultivation), political interests, family pressures, various forms of economic compensation, and so forth. Sometimes the witness becomes "hostile" simply because police records of his or her earlier testimony are plainly wrong.
Judges themselves are well aware that the police do write false statements for the purpose of strengthening their cases. Though well known in judicial milieus, the dynamics just described have not yet been studied as they unfold over the course of a trial. My research suggests, however, that the witness's withdrawal from his or her previous statement is a crucial moment in the trial, one that clearly encapsulates the tensions arising between those involved in a trial and the court machinery itself.
"In my fieldwork experiences, witnesses become "hostile" not only when they are directly implicated in a case filed by the police, but also when they are on the side of the Plaintiff's party. During the often rather long period that elapses between the police investigation and the trial itself, I often observed, the party who has lodged the complaint (and who becomes the main witness) can irreparably compromise the case with the other party by means of compensation, threat or blackmail."
Applying the said principles we are convinced that the prosecution witnesses PW-1 to PW-7 did reflect overgenorisity towards the accused by virtually crippling the prosecution and may have been overcome by factors that do not find support from any direct evidence, but their conduct is not justifiable, where even PW-4 the village Chowkidar who was supposed to be an independent witness has extended a helping hand to the accused. Even though there is no clinching direct evidence, but applying the principle of prudence in cases of circumstantial evidence, the demeanour of the statements of the abovementioned witnesses compel us to draw an inference that the trial court did not commit any error in concluding that they might have been won over.
The flip side of the coin is that at the heat of the moment whenever such sensitive occurences take place, there are unscruplous elements who generate their own opinions and float rumours by not only adding spice to the news, but recreating the whole scene as per their own perception. This may be done out of anxiety but it gains proportions when it is deliberate out of jealousy or vengeance. This gives rise to false implications, obstruction in the right path of investigation, shielding of true facts and virtually diverting the whole case. This is compounded by false testimony before the court. At this juncture the complete silence on the part of the accused or a false alibi or unsubstantiated defence adds to the burden of the prosecution and the Court. We have assessed the evidence and circumstances of the present case from all these angles.
For all the reasons hereinabove we partly allow the appeal and set aside the conviction of the appellants Om Prakash, Prabhat and Pappu and they shall stand acquitted of the charges under Section 302/34 I.P.C. They are already on bail and therefore the sureties shall stand discharged.
So far as appellant Ashok Kumar is concerned his conviction by the trial court and the sentences of Life Imprisonment coupled with fine are upheld and his appeal is accordingly dismissed. It is stated that the appellant Ashok kumar is still in jail and has not been released on bail. He shall serve out the remaining sentence as awarded by the trial court. Let a copy of this judgment be sent to the trial court for compliance.
Dated:-19.03.2018 Arshad/R./S.Chaurasia/HSM/M.Arif.