Allahabad High Court
Dharmendra Rajbhar vs State Of U.P. on 19 January, 2021
Equivalent citations: AIRONLINE 2021 ALL 170
Bench: Bachchoo Lal, Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Case :- CRIMINAL APPEAL No. - 234 of 2017 Appellant :- Dharmendra Rajbhar Respondent :- State of U.P. Counsel for Appellant :- Shamsher Singh,Ravi Ratan Kumar Sinha,Swati Agrawal Srivastava,Virendra Singh Counsel for Respondent :- G.A. Hon'ble Bachchoo Lal,J.
Hon'ble Subhash Chandra Sharma,J.
(Delivered by Hon'ble Subhash Chandra Sharma,J.)
1. This criminal appeal emanates from the judgment and order dated 15.12.2016 passed by learned Additional Sessions Judge, Jaunpur in Session Trial No. 274 of 2015 (State Vs. Heera Lal and two others) arising out of Crime No. 271 of 2015, under Sections 498-A, 304-B, 302/34 of Indian Penal Code & Section ¾ Dowry Prohibition Act, Police Station Sureri, District Jaunpur by which appellant Dharmendra Rajbhar has been convicted and sentenced under Section 302 IPC with life imprisonment and fine of Rs.10,000/-, in default of payment of fine to undergo additional imprisonment for a period of one year.
2. The prosecution case in brief is that Shakuntala Devi, the daughter of informant Pardeshi Rajbhar, was wedded to appellant-Dharmendra Rajbhar on 08.07.2008. Sufficient dowry was given in the marriage but her father-in-law, mother-in-law, sister-in-law and husband were not satisfied with the dowry. They were making demand for a golden ring and motorcycle but informant could not fulfill the demand owing to his meagre financial conditions. Consequently, the in-laws were harassing his daughter. She always told about this to the informant and members of his family. On 11.06.2015 at about 8.30 P.M. informant was communicated by the villagers that her daughter had been killed at about 8.30 P.M. by her husband, father-in-law, mother-in-law and sister-in-law. When he arrived at the spot, dead body of his daughter was lying at the door but her inmates were absent. All of them fled away leaving their home. He lodged an F.I.R. on 13.06.2015 at Police Station Sureri.
3. On 12.6.2015 at about 0.10 a.m. Hiralal Rajbhar (father-in-law of deceased) informed the police at police station Sureri that his daughter-in-law w/o Dharmendra Rajbhar aged about 27 years wedded in the year 2008 was aggrieved with matter related to tonsure (mundan) of her child. She hanged in the room while locking the door from inside. When door was not opened for long, she was called out but no response came from inside. They broke open the door and found her hanging with ceiling fan at about 8.30 p.m. He got down her dead body & lay it on the cot. This information was entered into G.D. Report no. 2 the same day.
4. Inquest of deceased Shakuntala was conducted by Nayab-Tehshidar Pradeep Tripathi on 12.6.2015 at about 8 O'clock in presence of witnesses. Dead body was sealed and handed over to constable Tribuwan Singh and constable Jaiprakesh Narayan for post-mortem. On 12.6.2015 at about 2 p.m. Post-mortem of dead body of deceased Shakuntala was conducted by Dr. Om Prakash Singh.
5. The details of post-mortem report are as below:
Deceased Shakuntala Devi was aged about 27 years. Average built body. Rigor mortis passed in upper limb present in lower limb. Rigor mortis in upper extremitis. Cyonosis present on face & upper extremities. Bleeding from nostrils.
Ante-mortem injuries:- No any external injury present.
Head: Scalp & skull found congested. Brain-congested. Neck: mouth, tongue, pharynx-congested. Larynx, vocal dords-congested. Trachea Hyoid bone was found intact.
Chest: Ribs and chest wall were found NAD. Oesophagus found congested. Trachea and Bronchial Tree were found congested. Pleura found congested. Lungs found congested. Pericardium Pericardial Sac found congested. Right heart filled and left empty. Large blood vessels-NAD.
Abdomen: Condition of Abdominal wall was pale. Perinoteum and Peritonial Cavity pale. Stomach wall condition contents and smell-pale. Small intestine including appendix-gases present. Fecal matter and gases were present in large intestine. Spleen-pale. Pancreas-pale. Condition & weight of kidney-NAD. Pelvic cavity Tissues-pale. Genital organs-non gravid uterus. Spinal column and spinal cord-not opened.
Death approximately about one day.
Cause of death was Asphyxia as a result of smothering.
6. Investigation of the case was handed-over to Circle Officer Virendra Kumar Srivastava who started the investigation and recorded the statement of informant, inspected the place of occurrence and prepared the site plan. The statements of other witnesses were also recorded and charge sheet was submitted against accused Heera Lal, Girja Devi and Dharmendra Rajbhar under Sections 498-A, 304-B IPC and Section 3/4 Dowry Prohibition Act before the court concerned.
7. Learned Chief Judicial Magistrate took the cognizance of the offences and provided copies of prosecution papers in compliance of Section 207 IPC to accused persons and committed the case to the court of session for trial.
8. The trial court after taking into consideration the material on record, framed the charges against accused persons under Sections 498-A, 304-B IPC and Section 4 Dowry Prohibition Act and alternative charge under Section 302 IPC read with Section 34 IPC was also framed.
9. Charges were read-over and explained to the accused persons, they did not plead guilty but denied the charges and claimed for trial. Consequently, the case was fixed for prosecution evidence.
10. In support of its case prosecution examined P.W.1 Pardeshi Rajbhar who is informant and father of deceased, P.W.2 Chandrama Devi who is mother of deceased, P.W.3 Santosh Rajbhar who is brother of deceased, P.W.4 Ranjeet Chauhan who is gram-pradhan of village Kathwatiya, as witnesses of fact. P.W.5 Dr. Om Prakash Singh who conducted the autopsy of the deceased Shakuntala Devi & P.W.6 S.I. Ajay Kumar Rai who prepared essential papers at the time of inquest were also examined as formal witnesses. Genuineness of first information report, charge sheet was admitted by the learned counsel for accused persons, therefore, no formal witnesses in this regard were summoned and examined. On conclusion of prosecution evidence, statements of accused persons were recorded under Section 313 Cr.P.C. in which they told the prosecution version false except date of marriage. They also stated that there was no evidence against them, thereafter, an opportunity for defence evidence was given to them but no evidence was adduced on their part.
11. After hearing the arguments for accused as well as the State, learned Additional Session Judge, Court No. 4, Jaunpur acquitted the accused persons (Heerala, Girja Devi & Dharmendra Rajbhar) under Section 498-A, 304-B IPC & Section 4 Dowry Prohibition Act but convicted and sentenced the accused/present appellant Dharmendra Rajbhar under Section 302 IPC for a term of life imprisonment and with fine amounting to Rs. 10,000/- in default of payment of fine, to undergo one month additional imprisonment. Against this order of conviction and sentence this appeal has been preferred by the accused-appellant Dharmendra Rajbhar.
12. Heard Smt. Swati Agrawal, learned counsel for appellant as well as Shri Rajesh Mishra, learned A.G.A. for State and perused the record.
13. Learned counsel for the appellant submits that the impugned judgment and order of conviction is bad in law and against the evidence available on record. Learned trial court has erred in convicting the appellant without considering and appreciating the evidence. Prosecution could not prove its case with cogent and reliable evidence and learned trial court has decided this case wrongfully. Appellant is innocent. He has not committed any offence as alleged against him. Offences under Sections 498-A, 304-B IPC & Section ¾ Dowry Prohibition Act were not made out against the appellant, resultantly, he was acquitted by the trial court but convicted wrongfully under Section 302 IPC. All the witnesses of fact turned hostile as they had not supported the prosecution case. At the time of alleged incident, appellant was not present in the house because he was doing a job at Bombay. This fact was disclosed by all prosecution witnesses but trial court had not considered this aspect. One girl aged about 4 years and boy aged about 2 years were born from the wedlock of appellant and deceased. The responsibility of upbringing of these two issues is on the shoulder of appellant. There is no evidence constituting the offence under Section 302 IPC and charge sheet had also not been submitted under Section 302 IPC but only alternative charge under Section 302 IPC was framed by the trial court and without having any evidence on record, convicted the appellant mechanically by taking aid of Section 106 of Evidence Act while appellant was not present in the village at the time of incident. The cause of death was opined to be smothering by the Doctor. On this sole ground conviction has been recorded, whereas no other evidence in corroboration is available on record. In this way, the impugned judgment and order dated 15.12.2016 passed by learned Additional Sessions Judge being erroneous in fact and law is likely to be set-aside and appellant is entitled for acquittal.
14. Learned A.G.A. opposed the contentions raised by learned counsel for the appellant and submitted that in this case all the witnesses of fact turned hostile. Deceased Shakuntla Devi died in the house of her husband. This was custodial death. In post-mortem, the cause of death was found to be asphyxia as a result of smothering. It was not a case of suicide but homicide. At the time of incident, husband of the deceased and members of his family were present in the house. How did she die in their house was specially in the knowledge of those persons. This fact could only be disclosed by them. Prosecution could not be expected to bring the evidence in this regard which was beyond its approach. The explanation given by the accused-appellant is not sufficient about the cause of death. It was stated by the father of appellant in his information tendered to the police station on the day of incident which was entered into the G.D. that deceased committed suicide by hanging from a bamboo used for suspending a ceiling fan in her room after bolting it from inside but during the course of autopsy no ligature mark was found on her neck, no external injury was found on her body except cyonosis on face and upper extremities with bleeding from nostrils. In the opinion of doctor, her death was caused due to asphyxia as a result of smothering. Doctor has also stated before the trial court that her death was not caused by hanging and it was not result of suicide. In this way appellant and members of his family including his father who informed the police about this incident had concealed the real cause of death of deceased. Whereas the persons living in the same house at that time could know as to how the death of deceased occurred. Since, it was custodial death and accused-appellant with other members of family was in his house and he was husband of deceased, so he was liable for her death. In this way, learned trial court has recorded conviction of the appellant with the recourse of Section 106 of Evidence Act which is just and lawful. There is no error in the impugned judgment and order.
15. From the submissions made by learned counsel for the appellant as well as learned A.G.A. for State and from the perusal of record, it transpires that as to whether conviction recorded against the accused-appellant under Section 302 IPC is based on the evidence on record or it is hypothetical and for reaching to the right conclusion, first it is necessary to re-appreciate the evidence available on record and secondly to consider the invocation of Section 106 of Evidence Act.
16. As per F.I.R. version, deceased Shakuntala was wedded to accused-appellant Dharmendra Rajbhar and she was married to him on 8.7.2008. From the date of marriage in-laws of the deceased were not satisfied. They made demand of golden ring and a motorcycle which could not be fulfilled by the parents of the deceased, as a result she was subjected to harassment by her in-laws. On11.6.2015 at about 8.30 o'clock, father of the deceased/ informant got information about the death of his daughter in her Sasural. In this regard, he lodged an F.I.R. at the police station on 13.6.2015.
17. Information regarding death of deceased was given to the police on 12.6.2015 at about 0.10 a.m. by the father of accused-appellant which was entered into G.D. No. 2. in which he stated that deceased was aggrieved in relation to tonsure (mundan) of her children. She closed herself into her room from inside and hanged in the bamboo fitted for suspending ceiling fan with her saree and committed suicide, when door was not opened for a long, no response came on call, he broke open the door and found his daughter-in-law hanging at about 8.30 p.m. He got down her dead body & lay it on the cot. On this information Nayab Tehshildar and one sub-inspector Ajay Kumar went to spot where inquest was conduced by Nayab-Tehshildar and dead body was sent for post-mortem. In the post-mortem, the cause of death was found asphyxia as a result of smothering.
18. P.W.1 Pardeshi Rajbhar (father of deceased) informant deposed before the trial court that he wedded his daughter Shakuntala on 8.7.2008 with Dharmendra Rajbhar. When her daughter went to her sasural and came back from there, she told that her husband, father-in-law, mother-in-law and sister-in-law demanded a golden ring and motorcycle. They beat her and subjected to torture. There was panchayat between both the parties but they insisted on demand. On 11.6.2015 at about 8.30 p.m., he was informed by the sister-in-law of deceased about her hanging. Then, he went to sasural of his daughter and found her lying dead on a bed in the room. In cross-examination, he turned hostile and stated that Shakuntala used to talk to him, his wife Chandrama Devi, his son Santosh, Chandan and daughter Pooja, Shankuntala never told them about demand of golden ring and motorcycle made by Hiralal, Dharmendra and Girja Devi. They never subjected her to torture. A boy Ajit and a girl Shreya were born-out of the wedlock of his daughter & appellant. His daughter was happy in her sasural. Dharmendra was earning his livelihood in Bombay. Prior to this incident, Shankuntala was insisting to go with Dharmendra to Bombay but he went to Bombay alone assuring her that he would take her later after making arrangements. She became depressed and committed suicide.
19. P.W.2 Chandrama Devi (mother of deceased) has also stated that Shakuntla was wedded Dharmendra Rajbhar on 8.7.2008. When she came back from her sasural, she always told her about her happiness. She never made complaint of any kind of harassment or torture. She did not tell her about the demand of golden ring and motorcycle. Information about the death of her daughter was given by her husband Dharmendra Rajbhar who was living at Bombay. She also stated that she along with other members of her family went to sasural of deceased Shakuntala where members of her daughter's Sasural were present. Neighbours told that Shakuntala was short tempered and she used to become angry as a result she committed suicide. Her daughter died accidentally. During cross-examination made by learned A.D.G.C. She again stated that her daughter Shakuntala was happy in her Sasural and at the time of incident her son-in-law Dharmendra Rajbhar was living at Bombay. Her daughter Shakuntala never told her that Dharmendra made demand of golden chain or motorcycle. She was never subjected to harassment or beating by inmates of her husband.
20. P.W.3 Santosh Rajbhar (brother of deceased) has also stated that she was wedded to Dharmendra Rajbhar on 8.7.2008. She nenver told about harassment or torture from her husband or inmates. She was happy in her sasural. Information about the death of Sakuntala was given to him by her husband Dharmendra Rajbhar who was living at Bombay. He was at Bombay at the time of incident. Her sister was never incited for suicide by her in-laws. During cross-examination by learned A.D.G.C. the witness clearly refused the fact of complaint made by her sister relating to harassment and torture. He has also denied with his statement recorded under Section 161 Cr.P.C. by the Investigating Officer.
21. P.W.4 Ranjeet Chauhan who was gram-pradhan village Kathwatiya has stated that on 12.6.2015 the daughter-in-law of Heeralal hanged. He also went there where police and magistrate were present. Inquest of deceased Shakuntala was done in his presence. On the date of incident Heera Lal and his wife went to their relative and Dharmendra was living in Bombay. Shankuntala was under depression from long period.
22. P.W.5 Dr. Om Prakash Singh (Medical Officer) has proved the post-mortem report Exhibit- Ka-3 in his handwriting and told that the cause of death was asphyxia as a result of smothering. There was no any external injury found on the body. Only cyonosis was present on face & upper extremities. During cross-examination, he has stated that there was not external injury on the dead body. Hyoid bone was found intact. There was no ligature mark on her neck. Deceased was died of asphyxia. There was bleeding from nostrils and her tongue, eyes were not coming out. He denied the suggestion made by learned counsel for defence that she committed suicide or used saree for committing suicide by hanging. On query made by court, he further stated that the case could not be suicidal in any way. No suicide can be committed by stopping breath herself.
23. P.W.6 S.I. Ajay Kumar has stated that on the information given by Heera Lal as entered into the G.D., he went to the place of incident and Nayab Tehshildar Pradeep Tripathi also came there who got prepared the inquest report and dead body was sealed there. It was sent for post-mortem. He has proved the inquest report Exhibit Ka-2 and also paper nos. 7-ka, 8-ka, 13-ka/1 and 13-ka/2 and Exhibit-Ka-4 to Ka-8.
24. From the statements made by the prosecution witnesses. It is evident that they denied the fact of demand of dowry and harassment with the deceased on behalf of her in-laws including her husband-appellant. They turned hostile and even during their cross-examination by learned A.D.G.C. nothing appeared to support the prosecution version relating to demand of dowry and harassment soon before death.
25. In the situation where the elements of demand of dowry and harassment soon before death are lacking, the presumption under Section 113-B of Evidence Act cannot attract and conviction under Section 304-B IPC cannot be held.
26. Keeping, this kind of unsupportive evidence in view, learned Additional Sessions Judge has rightly acquitted the accused/in-laws of the charges under Sections 304-B, 498-A IPC and Section 4 Dowry Prohibition Act but with the recourse of Section 106 of Evidence Act, convicted and sentenced the appellant under Section 302 IPC as being husband of deceased.
27. At this juncture, it is expedient to consider the legal position regarding invocation of Section 106 of Evidence Act in the case of custodial death in bridal home.
28. One of the earliest cases in which Section 106 of Evidence Act was examined and explained are Attygalle versus Emperior reported in (1936) 38 Bombay LR 700. Stephen Seneviratne versus King reported in (1937) 39 Bombay LR 1.
"In the aforesaid decisions, Their Lordships of the Privy Counsel dealt with Section 106 of Ordinance No. 14 of 1895 (corresponding to Section 106 of the Indian Evidence Act). It was held that Section 106 of the Evidence Act does not affect the onus of proof and throw upon the accused the burden of establishing innocence."
29. Scope of section 106 of the Indian Evidence Act was examined inconsiderable detail by the Apex Court in the case of Shambhu Nath Mehra versus State of Ajmer reported in AIR 1956 SC 404, wherein learned Judges spelt out the legal principle in paragraph 11 which read as under :
11."This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that it means facts that are preeminently or exceptionally within his knowledge."
30. In Ch. Razik Ram versus Ch. J.S. Chouhan reported in AIR 1975 SC 667 it has been held as under:-
"116. In the first place, it may be remembered that the principle underlying Section 106 Evidence Act which is an exception to the general rule governing burden of proof - applies only to such matters of defence which are supposed to be especially within the knowledge of the defendant-respondent. It cannot apply when the fact is such as to be capable of being known also by persons other than the respondent."
31. In State of West Bengal versus Mir Mohammad Umar reported in 2000 SCC(Cr) 1516 it has been reiterated as under:-
"36. In this context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows : "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference.
38. Vivian Bose, J. had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused."
32. The applicability of Section 106 of the Indian Evidence Act, 1872 has been lucidly explained by the Apex Court in paragraph 23 of its judgement rendered in the case of State of Rajasthan versus Kashi Ram reported in JT 2006 (12) SCC 254 which runs as here under:-
"23. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution."
33. 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 an explanation.
34. The Apex Court in Trimukh Maroti Kirkan versus State of Maharashtra reported in (2007) 10 SCC 445 reiterated as here under :-
"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."
35. P. Mani Vs. State of T.N. 2006 (3) SCC 161 the Apex Court held as here under :
10. We do not agree with the High Court. In a criminal case, it was for the prosecution to prove the involvement of an accused beyond all reasonable doubt. It was not a case where both, husband and wife, were last seen together inside a room. The incident might have taken place in a room but the prosecution itself has brought out evidences to the effect that the children who had been witnessing television were asked to go out by the deceased and then she bolted the room from inside. As they saw smoke coming out from the room, they rushed towards the same and broke open the door. Section 106 of the Evidence Act, to which reference was made by the High Court in the aforementioned situation, cannot be said to have any application whatsoever.
36. The Apex court in the case of Vikramjit Singh Vs. State of Punjab 2006 (12) SCC 306 observed as here under :
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.
15. It may be that in a situation of this nature where the court legitimately may raise a strong suspicion that in all probabilities the accused was guilty of commission of heinous offence but applying the well-settled principle of law that suspicion, however, grave may be, cannot be a substitute for proof, the same would lead to the only conclusion herein that the prosecution has not been able to prove its case beyond all reasonable doubt.
37. The Apex Court in the case of State of Rajasthan v. Thakur Singh reported in (2014) 12 SCC 211, while allowing the appeal preferred before it by the State of Rajasthan against the judgment and order of the Rajasthan High Court, by which the High Court had set aside the conviction of accused Thakur Singh recorded by the trial court under Section 302 I.P.C. on the ground that there was no evidence to link the respondent with the death of the deceased which had taken place inside the room in the respondent's house, in which he had taken the deceased (his wife) and their daughter and bolted it from within and kept the room locked throughout and later in the evening when the door of the room was broken open the deceased was found lying dead in the room occupied by her and the respondent-accused, held:
The High Court did not consider the provisions of Section 106, Evidence Act at all. The law is quite well settled, that burden of proving guilt of the 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 instant case, since the deceased died an unnatural death in the room occupied by her and the respondent, cause of unnatural death was known to the respondent. There is no evidence that anybody else had entered their room or could have entered their room. The respondent did not set up any case that he was not in their room or not in the vicinity of their room while the incident occurred, nor he did set up any case that some other person entered room and cause to the unnatural death of his wife. The facts relevant to the cause of the death of the deceased being known only to the respondent, yet he chose not to disclose them or to explain them. The principle laid down in Section 106, Evidence Act, is clearly applicable to the facts of the case and there is, therefore, a very strong presumption that the deceased was murdered by the respondent. It is not that the respondent was obliged to prove his innocence or prove that he had not committed any offence. All that was required of the respondent was to explain the unusal situation, namely, of the unnatural death of his wife in their room, but he made no attempt to do this. The High Court has very cursorily dealt with the evidence on record and has upset a finding of guilt by the trial court in a situation where the respondent failed to give any explanation whatsoever for the death of his wife by asphyxia in his room. In facts of the case, approach taken by the trial court was the correct approach under the law and the High Court was completely in error in relying primarily on the fact that since most of the material prosecution witnesses (all of whom were relatives of the respondent) had turned hostile, the prosecution was unable to prove its case. The position in law, particularly Section 106, Evidence Act, was completely overlooked by the High Court, making it a rife at a perverse conclusion in law.
38. A Division Bench of this Court, in the case of Pawan Kumar versus State of U.P. and reported in 2016 SCC OnLine All 949 held as under:-
"Section 106 of the Evidence Act can not be utilised to make up for the prosecution's in ability to establish it's case by leading cogent and reliable evidence, especially when prosecution could have known the crime by due diligence and care. Aid of section 106 Evidence Act can be had only in cases where prosecution could not produce evidence regarding commission of crime but brings all other incriminating circumstances and sufficient material on record to prima facie probablise it's case against the accused and no plausible explanation is forthcoming from the accused regarding fact within his special knowledge about the incident. That section lays down only this much that if a fact is in the "special knowledge of a person" and other side could not have due knowledge of it in spite of due diligence and care then burden of proving that fact lies on that person in whose special knowledge it is. Section 106 Evidence Act has no application if the fact is in the knowledge of the prosecution or it could have gained it's knowledge with due care and diligence."
39. Thus, what follows from the reading of the law reports referred to herein above, is that prosecution has to establish guilt of the accused filtered of all reasonable prognosis favourable to accused to secure conviction and it is never relieved of its initial duty. It is only when the initial burden has been discharged by the prosecution that the defence of the accused has to be looked into. Section 106 of the Indian Evidence Act can not be applied to fasten guilt on the accused, even if the prosecution has failed in its initial burden.
40. Section 101 to Section 114A of Chapter-VII of the Indian Evidence Act, 1872 deal with subject "OF THE BURDEN OF PROOF." Section 106 of the Indian Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proof to prove that fact is upon him. Section 106 is an exception to Section 101 of the Evidence Act which stipulates that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. Section 106 of the evidence act has to be read in conjunction with and not in derogation of Section 101 Evidence Act. Section 106 of the Indian Evidence Act does not relieve prosecution of it's primary and foremost duty to establish the guilt of the accused beyond all reasonable doubts independent of weaknesses of the defence. It is only when prosecution, for well perceptible and acceptable reasons, is unable to lead evidence because of circumstances beyond it's control including the reason that the fact required to be proved was "within the special knowledge of an accused alone" and prosecution could not have known it by due care and diligence, that Section 106 can be resorted to by shifting burden on the accused to disclose that fact which is "in his special knowledge" and if accused fails to offer any reasonable explanation to satiate judicial inquisitive scrutiny, he is liable to be punished. Section 106 is not meant to be utilized to make up for the prosecution's inability to establish its case by leading, cogent and reliable evidence.
41. However once the prosecution establishes entire chain of circumstances together in a conglomerated whole unerringly pointing out that it was accused alone who was the perpetrator of the crime and the manner of happening of the incident could be known to him alone and within his special knowledge, recourse can be taken to section 106 of the Evidence Act. Aid of Section 106 of the Evidence Act can be invoked only in cases where prosecution could produce evidence regarding commission of crime to bring all other incriminating circumstances and sufficient material on record to prima-facie probablise its case against the accused and no plausible explanation is forthcoming from the accused regarding fact within his special knowledge about the incident.
42. Section 106 of the Evidence Act lays down only this much that if a fact is in the "special knowledge of a person" and other side could not have due knowledge of it in spite of due diligence and care then burden of proving that fact lies on such person in whose special knowledge it is.
43. Thus before Section 106 of the Evidence Act could be applied in the instant case it was incumbent upon the prosecution to establish by cogent and reliable evidence inter alia that the appellant was in occupation of house at the time incident took place.
44. Considering the testimony as deposed by prosecution witnesses who are near relatives of deceased, it transpires that appellant Dharmendra Rajbhar was not present at his home when incident took place. He was at Bombay. P.W.2 has categorically stated that Dharmendra Rajbhar informed about the incident to her husband on phone from Bombay. P.W.3 brother of deceased has also made similar statements. P.W.4 who was pradhan of village has also supported the version of P.Ws.-1, 2 & 3 to the extent Dharmendra Rajbhar lived in Bombay at the time of incident. Though, the appellant has not made such statement recorded under Section 313 Cr.P.C. before the court, but it does not infer that he was present at his home at the time of incident. In such a situation, how can he be made liable for incident occurring in his house, when he was not present there. The inmates of the deceased have also stated that deceased was in depression she was never harassed or subjected to torture by the appellant or the members of his family.
45. The evidence of doctor who conducted autopsy of deceased, is mere opinion which is in relation to cause of death of deceased but it is not indicative of guilt of appellant. He can only be made liable for it when his presence in the home is proved and he does not tell the reason but keeps quiet in this regard. Here in this case the presence of appellant at his home at the time of incident is not established, therefore, his liability for death cannot be fixed. In the case of Maruti Kirkan inmates of deceased were held liable because they were proved to be present at home when the incident took place but in the present case position is different, therefore, the case of Maruti Kirkan is of no help to the prosecution. Except this, there is no any evidence or link to connect the appellant to the incident i.e. murder of deceased. Thus, in lack of any such link which can connect the appellant to the commission of crime, he cannot be held guilty of committing the crime only on the ground that he is husband of deceased.
46. As per version of prosecution witnesses, appellant Dharmendra Rajbhar was not in occupation of his house with the deceased at the time of incident, but he was at Bombay. So it cannot be said that the fact of cause of death of deceased was in his special knowledge and only he could disclose the real fact as to how she died in his house.
47. Exhibit Ka-10 G.D. Report No. 2 indicates that Hiralal father-in-law of deceased was at home when incident took place. He informed the police station that his daughter-in-law hanged by a bamboo used for fixing ceiling fan with the help of her saree but this fact of hanging was found incorrect after post-morterm of deceased. Doctor conducting post-mortem had opined that death was caused by asphyxia as a result of smothering. During his cross-examination and query by court, he had clearly stated that the death was not caused by hanging, it was not suicide in any case. He had denied the suggestion of causing death by using saree. In this way, death of deceased is not proved to be caused by hanging and the story as shown by father-in-law of deceased seems to be false and his presence on the spot stands proved. He was in exclusive possession of the house at the time of commission of incident. The actual fact was in his knowledge and he would have disclosed it. If he did not disclose or keep mum or disclosed the fact but false, he would become liable for the commission of crime with the help of section 106 of Evidence Act but this factual situation was not taken in view by the learned trial judge while concluding the judgment and acquitting the informant (father-in-law of deceased) of the charges.
48. Learned Trial Court has not taken this part of evidence in consideration while concluding the judgmnet that is why he has convicted the appellant on the basis of principle laid down in the case of Maruti Kirkan which cannot be said to be correct in the eye of law. In the well considered opinion of this Court, as per record, appellant cannot be held guilty for committing murder of his wife but he is liable to be acquitted to the charge under Section 302 IPC.
49. Therefore, this appeal succeeds and conviction and sentence against the appellant is set-aside. He is in jail, he be released forthwith, if not wanted in any other case.
50 Appeal is allowed.
51. Copy of this judgment alongwith original record of Court below be transmitted to the Court concerned for necessary compliance. A compliance report be sent to this Court within one month. Office is directed to keep the compliance report on record.
Order Date :- 19th January 2021
A. Singh
(Subhash Chandra Sharma,J.) (Bachchoo Lal,J.)