Calcutta High Court (Appellete Side)
CRA-355-2007 on 15 December, 2016
Author: Asha Arora
Bench: Aniruddha Bose, Asha Arora
Form no. J(1)
In the High Court at Calcutta
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Aniruddha Bose
And
The Hon'ble Justice Asha Arora
C.R.A 355 of 2007
Appellants: 1. Panchanan Shil (in jail)
2. Basanti Shil (died during the pendency of
the appeal which abated as regards this
appellant)
Versus
Respondent: The State of West Bengal
For the appellant : Mr. Sekhar Basu,
Prabir Majumder
For the State : Mr. Subir Banerjee,
Mr. Pratick Bose,
Mr. Jayanta Banerjee
Heard on : 6.9.2016, 7.09.2016, 16.9.2016 ,23.9.2016
& 28.11.2016
Judgment on : 15th December, 2016
Asha Arora, J.:
1. This is yet another horrifying incident of a young house wife being set ablaze by her husband and mother-in-law.
2. The appeal at the instance of the accused husband and mother-in-law of the deceased victim is against the judgement and order of conviction and sentence dated 19th April, 2007 and 20th April, 2007 passed by the Additional Sessions Judge, 2nd Court Nadia in Sessions Trial No. I (VII) 2006 arising out of Sessions Case No. 9(7) 2006 whereby both the accused were convicted for the offence punishable under section 302/34 of the Indian Penal code (hereinafter referred to as the IPC) and sentenced to suffer imprisonment for life and to pay a fine of Rs. 5000/- each in default of which to suffer rigorous imprisonment for six months each for the aforesaid offence. The accused were also convicted for the offence punishable under section 498A IPC and sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs. 2000/- each in default of which to suffer simple imprisonment for six months each for the said offence. At this juncture it is significant to mention that the appeal as regards the appellant no.2 Basanti Shil abated in view of her death during the pendency of this appeal.
3. The facts in brief leading to the impugned judgement are as follows:
On 3rd March, 2006 at 15.15 hours the complainant Dhirendra Nath Shil, father of deceased victim Bijali Shil lodged a written complaint at Karimpur Police Station stating that his daughter (Bijali) was married to Panchanan Shil of village Pataboka in Nadia district in April, 2001. At the time of marriage complainant gave cash, gold ornaments, utensils and other articles as dowry. Deceased was subjected to incessant physical and mental torture by her husband and mother-in-law. On 3rd March, 2006 at about 8.00 am complainant was informed by someone from Potaboka village that his daughter Bijali and grand daughter Puja aged two years were set on fire. On getting such information complainant rushed to Karimpur hospital where the aforesaid victims were admitted. Being quizzed by her father, Bijali disclosed that her husband Panchanan Shil and mother-in-law Basanti Shil assaulted her last night and at about
4.00 am poured kerosene oil and set her on fire whereafter they locked the room and fled away. Hearing Bijali's cries the neighbours came and broke open the lock. Bijali and her daughter Puja were admitted to Karimpur hospital where they succumbed to the burn injuries.
4. On the basis of the aforesaid written complaint of Dhirendra Nath Shil(PW 1), Sub-Inspector Santi Sekhar Roy (PW 32) registered Karimpur P.S. Case No. 13 of 2006 under section 498A/302 IPC against the accused Panchanan Shil and Basanti Shil. The charge-sheet under section 498A and 302 IPC was laid by the Investigating Officer (PW 32) against both the accused.
5. The case being a sessions triable one was committed to the Court of the Sessions Judge, Nadia, Krishnagar wherefrom it was transferred to the Additional Sessions Judge 2nd Court Nadia for trial and disposal. Both the accused were charged for the offences under section 498A/302/34 IPC by the Trial Court. Each of the accused pleaded not guilty to the arraignment and claimed to be tried. At the trial prosecution examined thirty two witnesses while two witnesses namely, PW 28 and PW 34 were tendered for cross-examination. Apart from the oral evidence, prosecution relied upon several documents which were exhibited during the trial.
6. Defence version is innocence and outright denial of the prosecution case. From the tenor of cross-examination of the prosecution witnesses it appears that the accused attempted to set up a defence that deceased committed suicide by bolting the door of the room from inside and that she set fire to herself as well as to her minor daughter. Accused also endeavoured to take the plea of alibi by suggesting that at the time of the incident none of them were present in the house. They had been to Rukunpur village for attending the marriage ceremony of a relative. No evidence has been adduced in support of the defence case.
7. By the judgement under challenge both the accused were convicted and sentenced as aforesaid, for the offences punishable under section 498A/302/34 IPC.
8. The point for consideration is whether the conviction and sentence of the accused/appellant is sustainable.
9. Castigating the prosecution case on multifarious counts, Mr. Basu, learned senior counsel appearing for the appellant argued that the alleged dying declaration recorded by the medical officer Dr. Lipika Sihi (PW 7) cannot be relied upon since the victim having sustained extensive burn injuries to the extent of 85% was not in a position to make any statement. To fortify his submission, learned counsel for the appellant pressed into service the evidence of PW 20 Nirmal Kumar Mondal, PW 7 the attending medical officer and PW 30 the medical officer who held post mortem examination on the corpse of the victim. Referring to PW 10 a staff nurse attached to Karimpur Rural Hospital and PW 11 posted at the relevant time as G.D.A in the said hospital in whose presence the dying declaration was recorded, Mr. Basu submitted that the evidence of these two witnesses cannot be looked into since the accused was not questioned during his examination under section 313 CrPC regarding their evidence. Learned counsel for the appellant canvassed that the dying declaration which was recorded in English is unworthy of credence in the absence of any endorsement of the doctor that it was read over and explained to the victim. Inviting our attention to exhibit 3 the dying declaration, exhibits 4 and 4/a, the bed head tickets of the deceased victims Bijali Shil and Puja Shil, Mr. Basu argued that the said documents though prepared contemporaneously by PW 7 gives two separate versions of the incident. Learned counsel for the appellant further contended that the prosecution story as make out in the FIR that the accused locked the door of the room from outside after setting the deceased on fire is completely falsified by PW 2, PW 4 and PW 5 who have categorically stated in their evidence that the door was bolted from inside. Mr. Basu sought to impress upon us that the factum of the door being bolted from inside as testified by these three witnesses supports the defence version that the victim committed suicide and belies the dying declaration. It has further been argued that the conviction for the offence punishable under section 302 IPC is not justified in the absence of the opinion of the autopsy surgeon that the burn injuries were sufficient in the ordinary course of nature to cause death. Learned counsel for the appellant also tried to impress upon us that the investigation was lackadaisical since the Investigating Officer made no effort to ascertain whether the door was bolted from inside or whether it was locked from outside. To buttress his submissions Mr. Basu placed reliance upon the following decisions:
1. AIR 1951 Supreme Court 441 (Tara Singh Versus State of Punjab)
2. AIR 1953 Supreme Court 76 (Ajmer Singh Versus State of Punjab)
3. (2004)7 Supreme Court Cases 502 (Naval Kishor Singh Versus State of Bihar)
4. AIR 2016 Supreme Court 447 (Nankaunoo Versus State of Uttar Pradesh)
5. AIR 1983 Supreme Court 66 (Mayur Panabhai Shah Versus State of Gujrat)
6. J.T 2016(1) Supreme Court 263 (Krishan Chander Versus State of Delhi)
7. (2014) C.Cr.L.R (Supreme Court) 49 (Sunil Kundu and Another Versus State of Jharkhand)
8. 2013(1) A.I.C.L.R (Supreme Court) 13 (Surajit Sarkar Versus State of West Bengal)
9. 2014(3) Supreme Today 460 (Prakash Versus State of Karnataka)
10. Repudiating the submissions on behalf of the appellant, Mr. Subir Banerjee, learned advocate for the respondent/State countered that there is no reason to disbelieve the statement of the deceased victim recorded by the attending doctor (PW 7) in presence of PW 10 and PW 11 staff on duty of the hospital. Mr. Banerjee laid emphasis on the fact that the doctor being an independent witness is in no way concerned with the victim or the accused/appellant. In support of such submission reference has been made to the decisions reported in (2002) 6 Supreme Court Cases 710 (Laxman Versus State of Maharashtra) and (2015) 2 CCrLR (Cal) 156 (Sk. Anisur Versus State of West Bengal).
Mr. Banerjee invited our attention to the oral dying declaration of the victim made before her father (PW 1) and her mother (PW 12) in presence of PW 13 and PW 14 who accompanied them to the hospital. Learned counsel for the State further argued that the three witnesses who deposed regarding the door being bolted from inside were declared hostile and cross-examined by prosecution. Our attention has been drawn to the fact that one of the said hostile witnesses namely, PW 4 did not state before the Investigating Officer (PW 32) in his statement under section 161 CrPC that the door was bolted from inside. Placing reliance upon the case of Bhajju alias Karan Singh Versus State of Madhya Pradesh reported in (2012) CCrLR (Supreme Court) 358 Mr. Banerjee contended that the story of the door being bolted from inside coming from the three hostile witnesses is not believable. On behalf of the State reference has also been made to the decision reported in (2015)9 Supreme Court Cases 588 (V.K. Mishra and Another Versus State of Uttarakhand and Another)
11. The incriminating circumstances relied upon by prosecution may be broadly enumerated as follows:
(1) The victim was subjected to torture in her matrimonial home by her husband (appellant) and mother-in-law. (2) Dying declaration of the victim stating that her husband and mother-in-law poured kerosene oil on her and set her on fire. (3) Medical evidence of the attending doctor (PW 7) and the autopsy surgeon (PW 30) (4) Post occurrence conduct of the accused (5) Silence of the accused on being questioned during his examination under section 313 CrPC as to the cause of death of his wife.
12. It is not in dispute that the incident occurred in the marital home of the deceased where she was residing with her husband (appellant) and mother-in-law. The evidence regarding the factum of marriage and the fact that the victim resided with the accused/appellant remained unchallenged in cross-examination. It is also not in dispute that the deceased victim and the appellant had a minor daughter named Puja Shil who succumbed to the burn injuries. Through the evidence of PW1, PW12, PW13, PW14 and PW 18 prosecution endeavoured to prove that the victim was subjected to cruelty by her husband (appellant) and mother-in-law. PW1 and PW12 are the parents of the deceased victim. These two witnesses have stated unequivocally in their evidence that the husband and mother-in-law of Bijali would assault her and drive her out of the house. The victim would go to her parents' house and narrate her woes to them. PW1 and PW12 would then console the victim and send her back to her matrimonial home. PW13 Sukchand Bibi and PW 14 Afiya Bibi are the neighbours of the victim's parents who have corroborated the evidence of PW1 and PW12. They are independent witnesses who had no axe to grind against the accused. Both these witnesses have testified in the same voice that whenever Bijali came to her father's house she would narrate to her parents in their presence about the torture inflicted upon her. No contradiction has emerged in the evidence of these witnesses in relation to their statement under section 161 CrPC. Their evidence on the point of torture remained virtually unassailed in cross-examination. No motive could be assigned to these two independent witnesses for deposing falsely against the accused. Nothing could be elicited in the cross-examination of PW 13 and PW 14 to render their evidence untrustworthy. PW18 Rinku Shil is another witness who has supported the prosecution version. This witness has spoken about specific instances of physical torture upon the deceased. The relevant portion of the evidence of PW 18 is reproduced hereinunder:
"Bijali Shil now deceased was my nanad. After marriage, my said nanad used to reside at her in-law's house at village Pataboka. I know that both the accused persons used to inflict torture as well as assault on the said Bijali and drive her out and Bijali occasionally used to come to my father-in-law's house and my father-in-law sent her to her in-law's house on understanding. Once I went to the in-law's house of Bijali for keeping her at her- in-law's house from my father-in-law's house then in my presence, the accused persons assaulted her and by that assault, Bijali lost her sense. Then, the mother-in-law of Bijali told her son Pacha to touch the burning portion of bidi on the person of Bijali who will certainly get up."
No contradiction has emerged regarding the above quoted evidence of PW 18 in relation to her statement under section 161 CrPC before the Investigating Officer. Even the instances of physical torture upon deceased as testified by PW18 remained virtually undisputed in cross-examination. Nothing could be elicited in the cross-examination of PW18 to render her evidence untrustworthy. For the reasons discussed we are convinced that the first mentioned incriminating circumstance has been proved against the accused by credible and unimpeachable evidence.
13. PW6 and PW8 are the two neighbours of the accused who took the deceased victim and her minor daughter to Karimpur Rural Hospital where they were admitted on the date of the incident at 7.15 am PW 7 Dr. Lipika Sihi is the medical officer who attended the deceased victim Bijali Shil and her minor daughter. PW7 testified in her evidence that the patient who was conscious gave history of burn and putting her on fire by her husband Panchanan Shil and mother-in-law Basanti Shil. She (PW7) further stated that the said history was taken in presence of nursing staff (PW 10) and G.D.A staff on duty (PW 11) as well as the neighbours Subrata Karmaker (PW 8) and Prasenjit Das (PW 6). It is significant to mention that PW 6 and PW 8 turned hostile during the trial and stated nothing beyond the fact that they took the deceased victim and her minor daughter to Karimpur Rural Hospital. The statement of the deceased which was recorded by PW 7 on the date of the incident on 3rd March, 2006 at 7.30 am is reproduced hereunder:
"patient says that her husband Panchanan Shil and mother-in- law Basanti Shil forcefully put fire on her and her daughter Puja Shil today morning"
The said statement (treated as the dying declaration and marked exhibit 3) was recorded in presence of PW 10 and PW 11 who signed on it. PW 7 stated in her evidence that she took the impression of the left index finger of the victim on the statement since her thumb was burnt. It was in vain suggested to PW 7 in cross-examination that she recorded the dying declaration of the patient in accordance with the statement of Subrata Karmakar (PW8). It is significant to mention that the suggestion given to PW7 is of no avail in view of the fact that PW8 is a hostile witness who did not support the prosecution case. PW7 categorically denied the defence suggestion in cross-examination that the victim was not in a position to speak. Exhibit 4 is the bed-head ticket of the victim wherein it has specifically been mentioned that the patient was conscious and she gave history of burn. The extract of the history recorded by PW7 in exhibit 4 reads thus:
"patient gives history of burn by putting fire by her husband (1) Panchanan Shil and her mother-in-law (2) Basanti Shil"
Exhibit 4/a is the bed-head ticket of victim Puja Shil (minor daughter of victim Bijali Shil). The relevant portion of exhibit 4/a relating to the history of the patient Puja Shil is as follows:
"History, same as stated by her mother Bijali Shil (Burn Patient) catching fire by Puja's father and father's mother."
14. There is no substance in the argument on behalf of the appellant that exhibits 3, 4 and 4/a prepared contemporaneously by PW7 give different versions of the incident. In the three documents the accused/appellant and his mother have specifically been named as the perpetrators of the offence of setting the victim Bijali Shil and her minor daughter on fire. The expression "catching fire" used in exhibit 4/a is faulty English as is evident from a plain reading of the entire sentence which is once again quoted for ready reference:
"History same as stated by her mother Bijali Shil (burn patient) catching fire by Puja's father and father's mother."
The appellant (Puja's father) and his mother have clearly been named as the authors of the offence in exhibit 4/a. Their names have also been distinctly spelt out in exhibits 3 and 4. Being quizzed in cross-examination PW7 categorically stated that the patient gave her statement in Bengali but she wrote the same in English whereafter she read out its contents to the patient in Bengali. There is no reason to disbelieve the evidence of PW7 who is an independent witness having no interest to depose in favour of or against any of the parties. The evidence of PW 7 is wholly credible and trustworthy. Therefore the argument that the dying declaration (exhibit 3) cannot be relied upon for want of endorsement to the effect that it was read over and explained to the victim is not sustainable.
15. Equally untenable is the submission that the deceased was not in a fit state of mind to make the dying declaration. In support of such submission reference has been made to the evidence of PW20 who is a co- villager of the accused examined as a witness of seizure. This witness stated in his cross-examination on behalf of the accused that "the victim had no capacity to talk". PW 20 was declared hostile by prosecution for making a palpably false statement in Court to help the accused. The Investigating Officer (PW 32) categorically stated in his evidence that he did not record any statement of PW 20 who is merely a seizure list witness. This assertion of PW 32 remained unchallenged in cross-examination. It is evident that PW 20 made a false statement during the trial at the instance of the accused. His evidence is therefore not worthy of credence. The medical officer who recorded the dying declaration certified unequivocally in her evidence as well as in exhibit 4 that the patient was conscious. PW 7 is an independent and disinterested witness. No circumstances could be brought on record to show that the medical officer (PW7) was inimical to the accused or was in any way interested in fabricating a false dying declaration. There is nothing on record to show that any of the relatives of the deceased were present at the time when the dying declaration was recorded by PW7. There is also no material to suggest that the statement of the deceased which was recorded by PW7 was the result of tutoring or prompting. We are therefore convinced that the dying declaration was made by the deceased in a conscious state of mind and it is truthful, voluntary and trustworthy. Learned counsel for the appellant urged that we should exclude from consideration the evidence of PW10 and PW11 in whose presence the dying declaration was recorded since the accused was not questioned specifically during his examination under section 313 CrPC regarding their evidence. The dying declaration recorded and proved by the medical officer (PW7), an impartial and neutral witness, will certainly not become suspicious and unreliable if PW10 and PW11 are excluded from consideration. Apart from this, we find that all the material incriminating circumstances appearing in evidence against the accused were put to him during his examination under section 313 CrPC. It cannot be said that the accused was denied the opportunity to explain the circumstances appearing in evidence against him. Therefore the accused cannot be said to have been prejudiced on account of omission to question him regarding any vital circumstance. In our view there has been due compliance of the provisions of section 313 CrPC. Having reached this conclusion we find that the decisions reported in AIR 1951 Supreme Court 441, AIR 1953 Supreme Court 76 and (2004)7 Supreme Court Cases 502 (supra) relied upon by the learned counsel for the appellant find no application to the case before us.
16. This now brings us to the oral dying declaration made by the victim before her father (PW1) in presence of her mother (PW12), and two neighbours PW 13 and PW 14. PW 1 stated in his evidence that on being informed about his daughter, he went to Karimpur Rural Hospital and found her as well as her minor daughter with burn injuries. At his juncture it will be helpful to reproduce the relevant portion of the evidence of PW 1 relating to the dying declaration of the victim which reads as follows:
"At that time my said daughter had sense and on being asked, she reported to me that she was assaulted by her husband and her mother-in-law throughout the night and at dawn they poured kerosene oil on her person and set fire on her and keeping the room closed from the outside they left"
Significantly, in the FIR there is reference to the statement of the deceased implicating the accused. The FIR was lodged by PW 1 on the date of the incident at 15.15 hours. Prompt lodging of the FIR stating all the material particulars therein regarding the occurrence eliminates the possibility of concoction in the prosecution version. PW 12 the mother of the victim corroborated the evidence of PW 1 regarding the factum of dying declaration made by the victim in her presence. The relevant extract from the evidence of PW 12 is quoted hereunder:
"On hearing the said news, I, along with my husband, Sukchand Bibi and Afiya Bibi went to Karimpur Hospital for seeing my said daughter and her baby. We found that my said daughter and my grand daughter were lying there in burn condition. Then my daughter stated to my husband that at night both the accused persons assaulted her and they set fire on her. At that time I was present there"
No contradiction could be pointed out regarding the above referred evidence of PW 12 in relation to her statement under section 161 CrPC before the Investigating Officer. The aforesaid evidence of PW1 and PW12 regarding the factum of dying declaration made before them remained unassailed in cross-examination. By way of suggestion to PW 1 and PW 12 in cross-examination an abortive attempt was made by accused to set up a story of suicide by the deceased. PW 13 and PW 14 are the two independent witnesses who are the neighbours of the complainant. They accompanied PW 12 to the hospital to see the victim on the date of the incident. Deposing in conformity with the evidence of PW 1 and PW 12 these two witnesses claimed that the dying declaration was made by the victim to her father in their presence. Nothing could be elicited in the cross-examination of these two witnesses to show that they were inimical to the accused. The above referred evidence of PW 13 and PW 14 remained virtually unchallenged in cross-examination. It is evident that the oral dying declaration given to PW 1 in presence of PW 12, PW 13 and PW 14 is in conformity with the dying declaration recorded by the doctor (PW7). There is absolutely no reason to disbelieve the same.
17. PW 2, PW 4, and PW 5 are the neighbours of the accused who were declared hostile for deposing contrary to the prosecution version. It has been argued on behalf of the appellant that the factum of the door being bolted from inside as stated by PW 2, PW4, and PW5 belies the dying declaration. Let us consider whether these three hostile witnesses can be relied upon to the exclusion of the dying declaration recorded by an impartial and disinterested witness. PW 2 testified in his evidence that at about 6.00/6.30 am on the date of the incident he saw smoke coming out from the house of Pacha (accused) and the wife of Pacha was crying while the villagers were knocking the door. Thereafter PW 2 broke open the door and entered the room. On seeing fire in the room, PW 2 cried out. Then the villagers came and brought the injured victims out of the room and sent them to the hospital. In course of cross-examination on behalf of the accused PW 2 stated that the door of the room was bolted from inside. PW 4 and PW 5 deposed in the same manner. Being neighbours of the accused, these three witnesses appear to have been conveniently gained over by him. Contrary to the prosecution version PW 2, PW 4, and PW 5 have stated in their evidence that the door of the room was bolted from inside. With the help of these three witnesses accused tried to set up a story of suicide by the deceased. It is the specific case of prosecution according to the FIR that after setting the victim on fire the accused locked the room and fled away. We cannot lose sight of the fact that the FIR was lodged by the victim's father with utmost promptitude on the date of the incident. Therefore the possibility of fabrication in the prosecution case with a view to falsely implicate the accused is completely ruled out. The story of the room being bolted from inside coming from the mouth of the hostile witnesses is far from credible. The reason is not far to seek. Being the neighbours of the accused these three witnesses were prone to depose in his favour with a view to save him from the charge of murder. The story which the accused tried to set up with the aid of these three gained over witnesses is completely falsified by the dying declaration (exhibit 3) recorded by the medical officer (PW 7) who is in no manner concerned with the victim or the accused. There is no force in the argument that the assertion of the three hostile witnesses (PW 2, PW 4 and PW 5) regarding the door being bolted from inside (which finds favour with the defence story of suicide) should be accepted to the exclusion of the dying declaration. The decisions reported in J.T 2016(1) Supreme Court 263 and AIR 1983 Supreme Court 66 (supra) relied upon by the learned counsel for the appellant are not apposite for the purpose of our present case being clearly distinguishable on facts.
18. We are also not impressed with the argument that the prosecution case should be disbelieved since the Investigating Officer made no attempt to ascertain whether the door was bolted from inside or outside. In the present case the dying declaration is the most significant piece of incriminating evidence which convincingly supports the prosecution case. The law on the point is well settled that accused cannot be acquitted solely on account of lapses in investigation. The credibility of prosecution case proved by unimpeachable and trustworthy evidence cannot be corroded due to faulty investigation. In the present case, the story of the door being bolted from inside has been fabricated by the defence. To lend support to this concocted version accused managed to gain over PW2, PW 4 and PW 5. Curiously enough, the other co-villagers and neighbours of the accused who were examined by prosecution did not corroborate the assertion of the above mentioned three witness. For the reasons discussed, the decisions referred on the point of faulty investigation being distinguishable on facts find no application to our present case.
19. The evidence of the autopsy surgeon (PW 30) is in conformity with the prosecution version as regards the cause of death of the victims. PW 30 Dr. R.N. Halder held post mortem examination on the corpse of deceased victim Bijali Shil and her minor daughter Puja Shil. In the opinion of the autopsy surgeon death was due to shock following the burn injuries mentioned which were ante-mortem. Referring to the decision reported in AIR 2016 Supreme Court 447 (Nankunoo Versus State of Utter Pradesh), learned counsel for the appellant argued that the conviction for the offence punishable under section 302 IPC is not justified in the absence of the opinion of the autopsy surgeon that the burn injuries were sufficient in the ordinary course of nature to cause death. We are unable to accept this contention for the simple reason that the decision is clearly distinguishable on facts from our present case wherein on examining the dead body of Bijali Shil, the autopsy surgeon (PW
30) found that the "whole of the body except a portion of scalp was burnt". In his cross-examination PW 30 categorically stated that "the burn of Bijali Shil was almost whole body." Keeping in view the fact that almost the whole body of the deceased was burnt, absence of medical opinion that the burn injuries were sufficient in the ordinary course of nature to cause death does not affect the conviction for the offence under section 302 IPC. In the case law referred by the learned counsel for the appellant the facts are entirely different. In the said case the gun shot injury was caused in the inner part of left thigh. It was therefore held that the sufficiency of injury to cause death must be proved and cannot be inferred from the fact that death has taken place. The prosecution had not elicited from the doctor that the gunshot injury on the inner part of left thigh caused rupture of any important blood vessel and that it was sufficient in the ordinary course of nature to cause the death. Keeping in view the situs and nature of injury it was held that the case is a fit one where the conviction under section 302 IPC should be one under section 304 Part-I IPC. The decision relied upon is in no way applicable to our instant case.
20. Yet another circumstance which speaks against the accused is his post occurrence conduct. PW 12 (mother of the deceased) stated in her evidence that they did not find the accused in the hospital. It is not in dispute that the accused did not go to see the deceased victim in the hospital. We get from the evidence of the Investigating Officer (PW 32) that for arresting the accused raids were held in his house on several dates but in vain. It is the defence plea that on the date of the incident the appellant and his mother were in their relative's house at Rukunpur village. This plea of alibi sought to be pursued by the accused by way of giving suggestions to some of the prosecution witnesses could not be proved by evidence. Through the cross-examination of PW 2 and PW 3 accused made a futile attempt to substantiate his false plea. Being quizzed in this regard in cross-examination PW 2 a neighbour of accused stated as follows:
"I do not know whether the mother of Pacha went to Rukunpur for attending the marriage ceremony of her grand-daughter. Then says: I have heard it and also Pacha went for attending the marriage of ceremony of his niece. Then says:- I do not know whether Pacha went there to attend that marriage ceremony"
In response to a suggestion in cross-examination PW 3 another neighbour of accused stated as follows: "I cannot say that on the date of incident at dawn, Pacha went to Rukunpur for attending the marriage ceremony of his niece". No iota of evidence is forthcoming in support of the plea of alibi which the accused attempted to set up. Curiously enough, accused/appellant has not stated anywhere in his examination under section 313 CrPC that at the relevant time of the incident he was at Rukunpur village. Absence of the accused from the house immediately after the incident coupled with the unsubstantiated false plea of alibi and suicide are telling and relevant circumstances which from a significant link in the chain of circumstances connecting the accused with the crime.
21. It necessarily follows from the foregoing discussion that the charge against the accused has been proved by cogent, credible and unimpeachable evidence. Having reached this conclusion, it is expedient to advert to the fact that during his examination under section 313 CrPC accused maintained silence as to the cause of death of his wife. On being asked the accused offered no explanation on the incriminating circumstances relating to the cause of death of his wife. Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In Shambhu Nath Mehra Versus The State of Ajmer reported in AIR 1956 Supreme Court 404 the Apex Court while dealing with the interpretation of section 106 of the Evidence Act held that the section is not intended to shift the burden of proof (in respect of the crime) on the accused but to take care of a situation where a fact is known only to the accused and it is virtually impossible or extremely difficult for the prosecution to prove that fact. These facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts. In the case before us the appellant was prosecuted for the murder of his wife which took place in his house. In the decision reported in (1992) 3 Supreme Court Cases 106 in the case of Ganeshlal Versus State of Maharashtra it was held by the Apex Court that since the death of his wife had occurred in the custody of the accused, he was under an obligation to give an explanation for the cause of death in his statement under section 313 CrPC. In the case of State of Rajasthan Versus Thakur Singh reported in 2014 CRI. LJ 4047 (Supreme Court) in paragraph 22 of the judgement it was held as follows:
"22. The law, therefore, is quite well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts."
In the case before us the facts relevant to the cause of death of his wife were know only to the accused yet he chose not to disclose them or to explain them during his examination under section 313 CrPC. This itself forms a strong circumstance against the accused/appellant.
22. For the reasons discussed we unhesitatingly hold that the appellant failed to make out any case for interference with the impugned judgement and order of conviction and sentence passed by the trial court.
23. Consequently the appeal is dismissed.
24. A copy of this judgement be sent to the Superintendent of the concerned Correctional Home.
25. L.C.R along with a copy of judgement be sent forthwith to the trial court.
26. Urgent photostat certified copy of judgement, if applied for, shall be supplied to the parties upon compliance of requisite formalities.
(Aniruddha Bose, J.) (Asha Arora, J.) I agree.