Himachal Pradesh High Court
Nagender Ram Alias Mukesh vs Of on 30 November, 2023
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A. No. : 269 of 2020 .
Reserved on : 22.11.2023
Decided on : 30.11.2023
Nagender Ram alias Mukesh ......Appellant.
Versus
of
State of Himachal Pradesh. ........Respondent.
Coram
rt
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1 Yes For the appellant : Mr. Vikas Mishra, Advocate.
For the respondent : Mr. I. N. Mehta and Mr. Yashwardhan Chauhan, Senior Additional Advocate Generals with Ms. Sharmila Patial, Additional Advocate General and Mr. J. S. Guleria, Deputy Advocate General.
Satyen Vaidya, Judge This is an appeal by the convict against judgment and sentence dated 21.06.2019/22.6.2019, passed by learned Additional Sessions Judge, 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 30/11/2023 20:33:31 :::CIS 2Hamirpur, District Hamirpur, H.P., in Session Trial No. 5 of 2017, whereby, the appellant has been .
convicted for commission of offence under Section 302 of the Indian Penal Code (for short 'IPC') and has been sentenced to undergo imprisonment for life and to pay fine of Rs.15,000/-. In default of payment of fine, of appellant has been ordered to undergo simple imprisonment for a period of one year. The fine rt amount, on realization, has been ordered to be paid to the parents of the deceased.
2. Brief facts necessary for the adjudication of the appeal are that the deceased/victim in this case was a child aged about 7 years who was a student of 2nd standard in Government Primary School, Seri Nadaun, District Hamirpur, H.P. 2.1 The deceased did not return home after attending the school on 18.10.2016. The father of deceased, PW-1, Sh. Udai Ram, had made inquiries at personal level. He had been informed by PW-3, Smt. Rinku Rani (Shopkeeper) having shop outside the school premises, that she had spotted the deceased ::: Downloaded on - 30/11/2023 20:33:31 :::CIS 3 after school hours in the company of Nagender Ram (Appellant) as both of them were walking towards .
'Labour Chowk'.
2.2 The appellant is related to Udai Ram as his co-brother. The wives of appellant and Udai Ram are sisters. Udai Ram had telephonically inquired from the of appellant regarding the whereabouts of the deceased, but the appellant had denied the factum of having met rt deceased on the fateful day.
2.3 Udai Ram had lodged a written complaint (Ext. PW1/A) with the police on the evening of 18.10.2016.
2.4 On 19.10.2016, the search for missing son of Udai Ram was continued. It was discovered that PW-15, Shama Chaudhary and PW-19, Jagar Nath, both residents of 'Amtar-Bela' had come across an unattended school bag on a water tank near their residential accommodation. Udai Ram identified the school bag to be that of his missing son. He had also noticed a 'Chappal' (Slipper) floating in the water tank, which was also found to be that of his missing son.
::: Downloaded on - 30/11/2023 20:33:31 :::CIS 4Police was called. The water tank was emptied and the body of deceased son of Udai Ram was found.
.
3. The police registered the FIR Ext. PW31/A on 23.10.2016. Appellant was formally arrested. On completion of investigation implication of appellant in the crime was found and report under Section 173 of of Cr.P.C. was accordingly submitted.
4. Appellant was charged and tried for offence under rt Section 302 of the Indian Penal Code.
Prosecution examined total thirty-one witnesses besides proving on record various documents.
Appellant was examined under Section 313 of Cr.P.C.
He did not choose to lead any evidence in defence.
5. On the basis of material on record, learned Trial Court found charge against the appellant proved beyond reasonable doubts. Appellant was convicted and sentenced as above.
6. We have heard learned counsel for the parties and have also gone through the record of the case carefully.
::: Downloaded on - 30/11/2023 20:33:31 :::CIS 57. Prosecution had relied upon following facts and circumstances in support of its case:
.
7.1 Udai Ram (PW-1) and his wife Reena (PW-2) were residing at Nadaun District Hamirpur for last about 16 years. They had three children including a son studying in 2nd standard in Government School, of Seri Nadaun. The school timings were from 8:30 AM to 2:30 PM.
7.2
rt
The boy had not returned home on
18.10.2016 after attending the school. Initially PW-2 Reena searched for her son for some time and after having failed to find him had informed her husband PW-2 Udai Ram.
7.3 Udai Ram in the company of PW-10 Laxman started searching for the child. They were informed by PW-3 Rinku Rani that immediately after school hours i.e. at about 2:30 PM she had seen the child in the company of Nagender Ram (appellant).
7.4 PW-2 Reena and wife of Nagender Ram are sisters. Udai Ram, after having known that his son was seen in the company of appellant, had ::: Downloaded on - 30/11/2023 20:33:31 :::CIS 6 telephonically inquired as to the whereabouts of the child from the appellant but the appellant had feigned .
ignorance.
7.5 Udai Ram suspected appellant as Udai Ram owed a sum of Rs. 15,000/- to the appellant and had not been able to return the same despite repeated of demands.
7.6 Udai Ram had reported the matter to police rt on the night of 18.10.2016 itself vide application PW-
1/A and on its basis DDR No.30 Ext. PW 24/A was recorded at Police Station Nadaun.
7.7 As noticed above on 19.10.2016 the body of child was recovered from the water tank belonging to PW-12 Sarita Devi at place 'Amtar Bela'.
7.8 Case was registered on 23.10.2016 vide FIR PW-31/A. Appellant was taken in custody on the same day.
7.9 On 25.10.2016 police had collected sample of soil from near the place of incident vide memo Ext.
PW-8/C. ::: Downloaded on - 30/11/2023 20:33:31 :::CIS 7 7.10 On 26.10.2016 police had recovered clothes (shirt and trousers) worn by appellant on 18.10.2016 .
in pursuance to disclosure statement suffered by the appellant. The clothes were found lying beneath a mattress on the bed in the house of appellant.
Recovery memo PW-5/A was prepared.
of 7.11 The trouser Ext. P-2 recovered by the police was found to have soil stain at the bottom of right leg.
Police rt obtained expert opinion Ext PW-16/B to conclude that the soil sample taken from spot matched in properties with the soil stain found on trouser Ext.
P-2.
7.12 Post Mortem was conducted by PW-17 Dr. Susheel Sharma and his report was proved as Ext.
PW-17/D. As per final opinion of PW-17, the cause of death was "ante-mortem drowning"
7.13 Police also collected evidence to show the presence of appellant at Nadaun on 18.10.2016. PW-5 Ajay Kumar had disclosed that the appellant had visited his shop on 18.10.2016 at about 11.45 AM and had left at about 12.15 PM. PW-19 Jagar Nath had ::: Downloaded on - 30/11/2023 20:33:31 :::CIS 8 also met appellant on the same day at about 1 PM at Nadaun. The appellant had consumed liquor in the .
company of PW-4, Vijay Kumar from 3:30 PM onwards.
7.14 On inquiry, appellant had denied the factum of deceased being in his company on 18.10.2016.
of 7.15 Appellant was suspected to be perpetrator of crime as he had been pressing hard upon Udai Ram rt and his wife to return back his money and had even threatened the wife of Udai Ram of ill consequences.
8. On the other hand, appellant raised the defence of denial. From the tenor of his cross examination on PW-1 and PW-2 the appellant had levelled counter allegation against Udai Ram of being perpetrator of crime for the reason that appellant had developed illicit relations with the wife of PW-1 and even the deceased child was said to have born out of the loins of the appellant.
9. Noticeably, while rendering explanation during his examination under section 313 Cr.P.C, the appellant had quoted his illicit relation with PW-3 ::: Downloaded on - 30/11/2023 20:33:31 :::CIS 9 being reason for making deposition against him by the said witness. The relevant question and answer are .
being reproduced here to understand its true solemnity:
"Q.74 Why the witnesses have deposed against you?
Ans. I had plastered two rooms at the instance of Udai Ram and during this of period I had developed relations with Rinku Devi and her husband came to know about the same who slapped me and demanded Rs. 50,000/- but I did not
10. rt pay and therefore they have given false statements against me."
The prosecution case, undeniably hinges upon circumstantial evidence. It is settled that in case of circumstantial evidence, each and every circumstance against the appellant is required to be proved beyond reasonable doubts and all such circumstances should form complete chain of facts leading to the hypothesis that the offence, if any, has been committed by the accused and none else.
11. In Anjan Kumar Sarma Vs. State of Assam, (2017) 14 SCC 359, Hon'ble Supreme Court has underlined the following factors to be taken into ::: Downloaded on - 30/11/2023 20:33:31 :::CIS 10 account in adjudication of cases of circumstantial evidence:-
.
"1). The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must' or "should' and not "may be"
established;
of
2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be rt explainable on any other hypothesis except that the accused is guilty;
3) the circumstances should be of a conclusive nature and tendency;
4) they should exclude every possible hypothesis except the one to be proved; and
5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
12. Learned Trial Court took notice of following circumstances relied upon by the prosecution: -
"(i) That the deceased Rahul, who was studying in Govt. Primary School, Nadaun, as usual attended the school, on 18.10.2016, but did not come back to his house;::: Downloaded on - 30/11/2023 20:33:31 :::CIS 11
(ii) that on the same day, after school hours, deceased Rahul was lastly seen with the .
accused outside the school moving toward Labour Chowk;
(iii) that the school bag of the deceased Rahul was found on the water tank of Sarita Devi PW-12 at Bela on the same day, i.e. 18.10.2016;
of
(iv) that the accused was present at Nadaun from 11:45 AM to 5:00 PM on the same day;
(v) rt that on 19.10.2016, the dead body of deceased Rahul was recovered from the water tank of Sarita Devi PW-12 at Bela where his bag was found on 18.10.2016;
(vi) that the accused made disclosure statement
Ext. PW8/A about the place of
incident/location where the dead body of the deceased Rahul was found and pursuant to the said disclosure statement got the spot identified vide memo Ext. PW8/B;
(vii) that the soil similar to that of soil near the water tank found on the pant Ext. P-2 of the accused, got recovered by him pursuant to the disclosure statement Ext. PW8/B vide memo Ext. PW5/A;
(viii) that deceased Rahul died due to ante mortem drowning."
::: Downloaded on - 30/11/2023 20:33:31 :::CIS 12On the basis of the discussion held in the impugned judgment, learned Trial Court has found all the .
circumstances proved against the appellant except circumstance No.6.
13. Learned counsel for the appellant has challenged the findings returned by the learned Trial of Court, on the ground that the same are not borne out from the evidence on record. It has been submitted rt that learned Trial Court had placed reliance on inadmissible evidence. None of the circumstances alleged by the prosecution were proved against the appellant. Prosecution had miserably failed to discharge the burden to prove the guilt of the appellant beyond reasonable doubts.
14. On the other hand, learned Additional Advocate General, has supported the findings recorded by the learned Trial Court being perfectly legal. It has been submitted that each and every circumstance proved on record pointed towards the guilt of the appellant, on the other hand the appellant had ::: Downloaded on - 30/11/2023 20:33:31 :::CIS 13 miserably failed to discharge the burden placed upon him under Section 106 of the Indian Evidence Act.
.
15. In order to explore and assess the merits of rival contentions as also the various aspects related to the facts in issue, we now move to examine the prosecution evidence.
of Presence of the child in the school on fateful day:
16. PW-11, Jyoti Devi, a Primary Assistant rt Teacher in a Government Primary School Boys, Seri Nadaun, has proved on record the extract of attendance register of the school dated 18.10.2016 as Ext. PW11/A, on the basis of original register brought by her in the Court. According to Ext. PW11/A, deceased child was present in the school on 18.10.2016. PW-2, Reena, the mother of the deceased, has also stated that on 18.10.2016 her son had gone to school at 8:30 am. These statements have remained unrebutted and hence the fact stands proved.
Child went missing:
17. As per PW-2, Reena, her son was studying in 2nd standard and used to go to school at about 8:30 ::: Downloaded on - 30/11/2023 20:33:31 :::CIS 14 AM and returned at about 2:45 PM. On 18.10.2016, as usual, her son had gone to school at 8:30 AM, but .
did not return at 2:45 PM. She made a search for her son but in vain. At about 3:00 PM, her husband returned home and thereafter he also went in search of the deceased. Her husband was accompanied by one of Laxman (PW-10). This fact is corroborated by PW-1, Udai Ram and PW-10, Laxman.
Disclosure rt about the child last seen with appellant:
18. It was during the search for deceased by Udai Ram, PW-1 and Laxman, PW-10 that Rinku Rani, PW-3, had disclosed to them that she had seen the child in the company of appellant at about 2:30 PM on 18.10.2016 and both of them had walked towards Labour Chowk. PW-3, Rinku Rani, has also deposed the above fact before the Court during trial. The version of PW-3 was sought to be discredited only by suggesting that she had deposed against the appellant due to enmity. However, nothing was suggested to this witness regarding the cause of alleged enmity. It was ::: Downloaded on - 30/11/2023 20:33:31 :::CIS 15 not even suggested to PW-3 that the appellant was not in the company of child on 18.10.2016 or that PW-3 .
had not seen both in the company of each other. PW-1, Udai Ram and PW-10, Laxman, both have consistently maintained that while searching for the deceased on 18.10.2016, they had visited the vicinity of the school of premises and at that juncture PW-3 had disclosed to them about the factum of appellant seen in the rt company of deceased after school hours.
19. As noticed above, the appellant while explaining incriminating circumstances put to him under section 313 Cr.P.C came out with a version that PW-3 had developed illicit relations with the appellant and when this fact had come to the knowledge of husband of PW-3, he had slapped the appellant and had also demanded Rs 50,000/-. On refusal of appellant to pay the amount so demanded PW-3 had deposed against him.
20. In our considered view the plea raised by the appellant while being examined under section 313 Cr.P.C is an afterthought as no such case was put to ::: Downloaded on - 30/11/2023 20:33:31 :::CIS 16 PW-3 by the appellant while cross examining her. Even otherwise said plea does not appear to be convincing, .
rather appears to be improbable, defying all logic.
Ordinarily no husband would settle for compromising the celibacy of his wife for money.
21. Further evidence on this score also negates of the planting of such type of evidence against the appellant. PW-1, PW-2 and PW-10 have also deposed rt that after attaining the knowledge of aforesaid facts from PW-3, the appellant was contacted telephonically and inquiries as to whereabouts of deceased were made and the appellant had feigned ignorance. This fact has been admitted by the appellant while being examined under Section 313 of Cr.P.C. Question No. 7 of the statement of appellant under Section 313 of Cr.P.C., reads as under: -
"Q.7 It has also come in evidence against you that Udai Ram PW-1 telephonically inquired about his son from you, however, you told that you had not taken his son. What have you to say about it ?"
Ans: It is correct ::: Downloaded on - 30/11/2023 20:33:31 :::CIS 17 Question No. 10 of the aforesaid statement also needs to be noticed as under:-
.
"Q.10 It has also come in evidence against you that thereafter complainant Udai Ram moved complaint Ext. PW1/A to police at Police Station, Nadaun. What have you to say about it ?"
In reply the appellant had stated as under:-
of " I had asked Udai Ram to lodge complaint in police station."
22. rt Another fact which needs notice is that PW-1, Udai Ram, had submitted an application to the police Ext. PW1/A during the evening hours of 18.10.2016 itself. In the said application, he had made a mention that one female near the school had disclosed about the child having gone with his co-
brother (Appellant) to place 'Majhin' (the residence of appellant was at 'Majhin'). DDR No.30 Ext. PW-24/A was recorded in Police Station Nadaun on the basis of application PW-1/A and the aforesaid fact finds mention therein also. Additionally, DDRs Ext PW-24/B and Ext PW-24/C coupled with statement of PW-31, the Investigating Officer of the case also proves that on ::: Downloaded on - 30/11/2023 20:33:31 :::CIS 18 the basis of application PW-1/A, police had searched the house of appellant on the same night.
.
23. The aforesaid overwhelming evidence negates the possibility of PW-3 being planted as a procured witness against the appellant. Thus, it had been proved beyond reasonable doubts that the of deceased was in the company of appellant at about 2:30 PM on 18.10.2016 and had gone towards Labour Chowk.
rt
24. On the other hand, the appellant throughout maintained that the deceased was not in his company or with him on 18.10.2016. Rather, he came out with a defence that the complainant had a motive to falsely implicate the appellant as the appellant was having illicit relations with the wife of the complainant and the deceased was also born from his loins, which he utterly failed to probabilise. PW-2 while deposing during the trial had categorically denied the suggestion that she had been maintaining illicit relations with the appellant. Except for suggesting such fact to PW-1 and PW-2 in their ::: Downloaded on - 30/11/2023 20:33:31 :::CIS 19 respective cross examinations, the appellant has made no effort to establish such fact independently.
.
25. Viewed from another angle, the story propounded by the appellant does not inspire confidence for the simple reason that a long time had elapsed since the birth of child. It was not the case of of the appellant that PW-1 had come to know about the alleged factum of paternity of child only in recent past.
rt It is hard to believe that PW-1 would have waited for 7- 8 years to take revenge from appellant that too in the manner suggested in defence.
Death by drowning; Medical Evidence:
26. PW 15, Shama Chaudhry and PW-19 Jagar Nath had deposed that they had sited an unattended school bag on the water tank near their house. As per PW-15, he had seen the school bag in the evening of 18.10.2016 itself. Though this witness had forgotten the date but the same can conveniently be taken to be 18.10.2016 as PW-15 then went on to narrate the incident of next day when the body was recovered and undeniably, the recovery of body was affected on ::: Downloaded on - 30/11/2023 20:33:31 :::CIS 20 19.10.2016 from the water tank belonging to PW-12 Sarita Devi at place 'Amtar Bela'. Many persons .
including PW-8 Kishori Lal President of concerned Gram Panchayat was also a witness to such recovery.
PW-1 had also identified the school bag to be of his son in the morning of 19.10.2016.
of
27. Post mortem on the body was conducted by PW-17 Dr. Susheel Sharma on 20.10.2016 at about rt 10.55 AM. It stands recorded in PMR Ext.PW-17/D that the time between death and post mortem was 1 to 2 days. As per final opinion Ext PW-17/G rendered by PW-17 the cause of death was ante mortem drowning.
28. There has been no challenge to above evidence on the cause of death.
Last seen theory and its application:
29. Section 106 of the Indian Evidence Act, 1872 reads as under: -
"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"::: Downloaded on - 30/11/2023 20:33:31 :::CIS 21
30. In Balvir Singh vs State of Uttarakhand (2023) INSC 879 the exposition of law on the issue .
has been noticed by Hon'ble Supreme Court as under
34. Section 106 of the Evidence Act referred to above provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The word "especially" means facts that are pre-
of eminently or exceptionally within the knowledge of the accused. The ordinary rule that applies to the criminal trials that the onus lies on the rt prosecution to prove the guilt of the accused is not in any way modified by the rule of facts embodied in Section 106 of the Evidence Act.
Section 106 of the Evidence Act is an exception to Section 101 of the Evidence Act. Section 101 with its illustration (a) 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 the facts which are, "especially within the knowledge of the accused and which, he can prove without difficulty or inconvenience".
35. In Shambhu Nath Mehra v. The State of Ajmer, AIR 1956 SC 404, this Court while considering the word "especially" employed in Section 106 of the Evidence Act speaking through Vivian Bose, J., observed as under:
"11. ... The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the ::: Downloaded on - 30/11/2023 20:33:31 :::CIS 22 section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the .
accused to prove that he did not commit the murder because who could know better than he whether he did or did not.
It is evident that that cannot be the intention & the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, of to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The rt King, AIR 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R, [1936] 3 All ER 36 at p.
49 (B)."
36. The aforesaid decision of Shambhu Nath (supra) has been referred to and relied upon in Nagendra Sah v. State of Bihar, (2021) 10 SCC 725, wherein this Court observed as under:
"22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference.
23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of ::: Downloaded on - 30/11/2023 20:33:31 :::CIS 23 circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be .
established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused."
(Emphasis supplied) of
37. In Tulshiram Sahadu Suryawanshi v. State of Maharashtra, (2012) 10 SCC 373, this Court observed as under:
rt "23. It is settled law that 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 position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilised. We make it clear that this section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be ::: Downloaded on - 30/11/2023 20:33:31 :::CIS 24 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. It is useful to quote the following observation in State of W.B. v. Mir Mohammad Omar [(2000) 8 SCC 382 : 2000 SCC (Cri) 1516] : (SCC p. 393, para
38)
"38. Vivian Bose, J., had observed that of 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 rt which are particularly within the knowledge of the accused. In Shambu Nath Mehra v. State of Ajmer [AIR 1956 SC 404 : 1956 Cri LJ 794] the learned Judge has stated the legal principle thus : (AIR p. 406, para 11) '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 pre-eminently or exceptionally within his knowledge.'""
(Emphasis supplied) ::: Downloaded on - 30/11/2023 20:33:31 :::CIS 25
38. In Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681, this Court was considering a similar case of homicidal death in .
the confines of the house. The following observations are considered relevant in the facts of the present case:
"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 of 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 rt 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 Prosecutions [[1944] A.C. 315 : [1944] 2 All ER 13 (HL)] -- quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh [(2003) 11 SCC 271 : 2004 SCC (Cri) 135].) 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 ::: Downloaded on - 30/11/2023 20:33:31 :::CIS 26 the content and scope of this provision and it reads:
"(b) A is charged with travelling 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 of to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be rt 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.
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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 place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance ::: Downloaded on - 30/11/2023 20:33:31 :::CIS 27 which indicates that he is responsible for commission of the crime. ..."
(Emphasis supplied) .
39. The question of burden of proof, where some facts are within the personal knowledge of the accused, was examined by this Court in the case of State of W.B. v. Mir Mohammad Omar, (2000) 8 SCC 382. In this case, the assailants forcibly dragged the deceased from the house where he was taking shelter on of account of the fear of the accused, and took him away at about 2 : 30 in the night. The next day in the morning, his mangled body was found lying in rt the hospital. The trial court convicted the accused under Section 364, read with Section 34 of the IPC, and sentenced them to ten years rigorous imprisonment. 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 the charge of murder. The accused had not given any explanation as to what happened to the deceased after he was abducted by them.
The 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 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 principles in paras 31 to 34 of the report:
"31. The pristine rule that the burden of proof is on the prosecution to prove the guilt ::: Downloaded on - 30/11/2023 20:33:31 :::CIS 28 of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine .
of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be of the casualty.
32. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the court has to presume the rt 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.::: Downloaded on - 30/11/2023 20:33:31 :::CIS 29
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 of accused would tell the Court what else happened to Mahesh at least until he was in their custody."
31. rt Reverting to the facts of the case, the fact that child had attended the school on fateful day and had left the school at about 2.30 PM has been well established. It has also been proved that child did not return home after school hours, rather it also stood proved that the deceased was last seen in the company of appellant at about 2.30.PM on 18.10.2016. PW-15 Shama Chaudhry had noticed unattended school bag on the water tank in the evening of 18.10.2016, which eventually was identified to be belonging to the deceased. On 19.10.2016 the drowned body of the child was recovered from water tank adjacent to the house of PW-15. As per post mortem report Ext PW-
::: Downloaded on - 30/11/2023 20:33:31 :::CIS 3017/D the time between death and post-mortem was reported as "1 to 2 days". The post mortem had been .
conducted on 20.10.2016 at about 11 AM, therefore, the approximate time of drowning of child could easily relate back to the afternoon of 18.10.2016. Thus, in the given facts of the case the appellant owed an of explanation antithetical to charge faced by him and on his failure to do so the last seen circumstance coupled rt with other attending circumstances become relevant for consideration.
Presence of appellant at Nadaun on 18.10.2016:
32. Prosecution had also been able to establish the presence of appellant at Nadaun on 18.10.2016.
PW-5, Ajay Kumar, specifically deposed that on 18.10.2016, the appellant had visited his shop at about 11:45 am and remained there till 12:15 PM. PW-
19 Jagar Nath, had also seen the appellant at Nadaun at about 1:00 PM. This witness deposed that on 18.10.2016, he had gone to a hardware shop near Post Office, where the appellant had met him. As per deposition made by PW-4 Vijay Kumar the appellant ::: Downloaded on - 30/11/2023 20:33:31 :::CIS 31 was with him at Nadaun on 18.10.2016 from 3:30 PM onwards and both of them had consumed liquor. The .
statements of aforesaid witnesses proved the presence of the appellant at Nadaun on 18.10.2016. The appellant has rendered no explanation as to where he had been in between 1:00 PM to 3:30 PM on aforesaid of day.
Recovery of clothes with incriminating material:
33.
rt On 25.10.2016 police had collected sample of soil from near the place of incident vide memo Ext.
PW-8/C. On 26.10.2016 police had recovered clothes (shirt and trousers) worn by appellant on 18.10.2016 in pursuance to disclosure statement suffered by the appellant. The clothes were found lying beneath a mattress on the bed in the house of appellant.
Recovery memo PW-5/A was prepared. The trouser Ext. P-2 recovered by the police was found to have soil stain at the bottom of right leg. Police obtained expert opinion Ext PW-16/B to conclude that the soil sample taken from spot matched in properties with the soil stain found on trouser Ext. P-2.
::: Downloaded on - 30/11/2023 20:33:31 :::CIS 3234. Noticeably, the recovery of clothes had been effected from beneath the mattress lying on the bed in .
the house of the appellant. The fact that the clothes were found lying under the mattress has not been denied by the appellant while rendering answers to the questions put to him under Section 313 of Cr.P.C. The of appellant had rendered the explanation that he had kept the clothes under the mattress after washing rt them. PW-5 Ajay Kumar had identified the clothes, so recovered, vide Ext. PW5/C, to be the same which were worn by appellant on 18.10.2016. Again, this part of the statement of PW-5 had not been challenged in cross-examination. In these circumstances, there is no difficulty in holding that the clothes worn by the appellant on 18.10.2016 were found lying under the mattress.
35. It is the case of prosecution that the 'trouser' Ext P-2 recovered, vide Ext. PW5/C, had soil stains at the bottom of its right leg. PW-5, while appearing as the witness in the Court had also made the statement to this effect. Noticeably, PW-5 was not ::: Downloaded on - 30/11/2023 20:33:31 :::CIS 33 cross-examined on this aspect, rather, a question was put to him with respect to the colour of the soil found .
on the 'trouser'. During investigation, the investigating officer had collected soil sample from the place adjacent to the water tank from where the body of the deceased was found. The soil sample, so collected, was of sent to RFSL, Mandi, for comparison with the soil found on the 'trouser' recovered from the house of the appellant.
rt PW-16, Sh. Rajesh Kumar, Assistant Director, RFSL, Mandi, after analyzing both the soils had found similarity in both of them and had rendered his report Ext. PW-16/B. The defence had not been able to discredit such scientific opinion. The appellant had again not been able to satisfactorily explain the source of soil stains on his 'trouser' which was similar to the soil found near the place of incident. To the contrary, the explanation of the appellant that he had kept his clothes beneath mattress after washing them has been falsified. Had the clothes been washed, the soil stains could not have been found on the same.
::: Downloaded on - 30/11/2023 20:33:31 :::CIS 34Motive:
36. It has also not been denied by the appellant .
that the relations between him and complainant were strained. According to complainant, the reasons for such strained relationship was his inability to repay the debt to the appellant and as per appellant, it was of his illicit relation with PW-2 which was the cause of strained relationship. The existing enmity or strained rt relations often work as double edged weapon. Since, the appellant has not been able to establish the reason as assigned by him for strained relation, it will not be unreasonable to infer that the inability of complainant to repay the debt amount to the appellant was a cause of strained relationship inter se parties.
37. In view of what has been discussed above, we have no hesitation to concur with the findings and conclusion drawn by learned Trial Court. All the incriminating circumstances as culled out by learned Trial Court except circumstance No. 6 have been proved beyond reasonable doubts. The circumstance if seen in form of chain of events then it leads to the ::: Downloaded on - 30/11/2023 20:33:31 :::CIS 35 hypothesis that it was the appellant only who was the perpetrator of the crime. Therefore, we find no .
substance in this appeal and the same is, accordingly, dismissed.
38. Pending miscellaneous application(s), if any, shall also stand disposed of.
of
(Tarlok Singh Chauhan)
rt Judge
(Satyen Vaidya)
30th November, 2023 Judge
(sushma)
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