Allahabad High Court
Narendra Kumar Yadav @ Narendra Prasad ... vs State Of U.P. on 27 March, 2019
Equivalent citations: AIRONLINE 2019 ALL 1105
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No.7 Criminal Appeal No.5519 of 2008 Narendra Kumar Yadav Sughara Devi ---- Appellants Vs State Of Uttar Pradesh ---- Respondent For Appellants : Shri V P Srivastava, Senior Advocate Shri Ajit Kumar Srivastava, Advocate For Respondent/State : Shri B A Khan, AGA-I Hon'ble Pritinker Diwaker, J.
Hon'ble Raj Beer Singh, J.
Per: Pritinker Diwaker, J (27.3.2019)
1. This appeal arises out of impugned judgement and order dated 8.8.2008 passed by the learned Sessions Judge, Jaunpur in Sessions Trial No.218 of 2007 (State of UP vs. Narendra Kumar Yadav alias Narendra Prasad), convicting the appellants under Sections 302, 201 read with Section 511 of IPC and sentencing them to undergo imprisonment for life and fine of Rs.1000/- each, in default thereof, six months further simple imprisonment and to undergo five years rigorous imprisonment. Both the sentences shall run concurrently.
2. In the present case, name of the deceased is Nagina Devi, wife of accused no.1-Narendra Kumar Yadav and daughter-in-law of accused no.2-Sughara Devi. Marriage of the deceased was performed with accused no.1 on 20.5.2002 and she died a homicidal death on 12.4.2007. On 14.4.2007 at about 11:40 am, written report Ex.Ka.1 was lodged by PW-1 Radhey Shyam Yadav, father of the deceased based on which, FIR Ex.Ka.2 was registered against accused appellants and two minors, namely Badkau and Chhotkau under Sections 498-A, 304-B of IPC read with Section 3/4 of Dowry Prohibition Act. Inquest on the dead body of the deceased was conducted, vide Ex.Ka.6 on 12.4.2007 and the body was sent for post-mortem which was conducted on 13.4.2007, vide Ex. Ka.5 by PW-5 Dr R K Sinha.
As per Autopsy Surgeon, following injuries have been found on the body of the deceased:
"Deep burn of Vth to VI degree, about 96% of total body surface area, sparing the both soles and buttock; charring of whole limbs and muscles present.
All hairs (scalp, eyebrows, eyelashes, axillary and pubic hair) are burnt out.
Tongue protruded.
Hyoid bone # (Rt. side cornua of hyoid bone #)"
Cause of death of the deceased is Asphyxia as a result of ante mortem throttling.
3. Vide Ex.Ka.13, from the house of the accused persons where the deceased was burnt, half burnt wood, half burnt Kathari and ash thereof were seized.
4. While framing charge, the trial Judge has framed charge against the accused persons under Sections 498-A, 304-B, in alternate, charge under Section 302 read with Section 201 of IPC was also framed against them.
5. So as to hold the accused persons guilty, prosecution has examined nine witnesses. Statements of the accused persons were also recorded under Section 313 Cr PC in which, they pleaded their innocence and false implication.
6. By the impugned judgment, the trial Judge has convicted the accused persons under Sections 302 and 201 read with 511 of IPC and sentenced as mentioned in para-1 of this judgment. Hence, this appeal.
7. Counsel for the appellants submits:
(i) that there is no eye witness account to the incident and the appellants have been convicted despite there is no evidence on record against them.
(ii) that initial burden lies on the prosecution to prove that it is the accused persons who committed the offence.
(iii) that no such burden has been discharged by the prosecution and, therefore, it cannot be expected from the accused persons to give probable defence.
(iv) that at the time of occurrence, both the accused persons were not present in the house as Suresh Yadav, father of accused no.1 and husband of accused no.2 was hospitalized at Allahabad and both appellants were taking his care.
(v) that all the important prosecution witnesses have turned hostile.
(vi) that at best, offence under Section 201 of IPC is made out against the accused persons for which, they have already remained in Jail for sufficient period and, therefore, they deserve to be released forthwith.
Counsel for the appellants placed reliance upon the judgments of the Supreme Court in (i) Sucha Singh v. State of Punjab1; (ii) Vikramjit Singh @ Vikky v. State of Punjab2; (iii) Joy Dev Patra & Ors. v. State of West Bengal3; (iv) Tomaso Bruno & Ors. v. State of UP4; (v) State of WB v. Mir Mohammad Omar & Ors.5; and (vi) Shambhu Nath Mehra v. State of Ajmer6.
8. On the other hand, supporting the impugned judgment and order, it has been argued by learned State Counsel that the conviction of the accused persons is in accordance with law and there is no infirmity in the same. He submits that in the house in question, deceased was residing along with the accused persons and once this fact is not disputed, burden lies on the accused persons to explain as to how deceased died a homicidal death. He submits that the deceased was first killed by accused persons by throttling and thereafter, in a brutal manner, after making a pyre in the house itself and putting the body of the deceased thereon, they burnt it and this act of the accused persons shows their cruel mentality. He submits that the prosecution has discharged its burden by producing adequate circumstantial evidence and no explanation has been offered by the accused persons in their statements under Section 313 Cr PC, nor they have adduced any defence evidence. He placed reliance upon a judgment of the Supreme Court in State of Rajasthan v. Thakur Singh.7
9. We have heard learned counsel for the parties and perused the record.
10. PW-1 Radhey Shyam Yadav, is the first informant and is also a father of the deceased, has not supported the prosecution case and has been declared hostile.
11. PW-2 Ambika, is a brother of the deceased, has also been declared hostile.
12. PW-3 Ram Dhari, is a cousin brother of the deceased, has turned hostile.
13. PW-4 Phool Chand, registered the FIR.
14. PW-5 Dr R K Sinha, conducted the postmortem on the body of the deceased. According to him, the deceased sustained following injuries:
"Deep burn of Vth to VI degree, about 96% of total body surface area, sparing the both soles and buttock; charring of whole limbs and muscles present.
All hairs (scalp, eyebrows, eyelashes, axillary and pubic hair) are burnt out.
Tongue protruded.
Hyoid bone # (Rt. side cornua of hyoid bone #)"
He has stated that cause of death of the deceased was Asphyxia as a result of ante-mortem throttling. He has categorically stated that the deceased died because of throttling. He has also opined in the post-mortem report that the eyes of the deceased were closed, mouth was found half opened and pugilistic posture was present.
15. PW-6 Ram Ratan Yadav, conducted inquest.
16. PW-7 Daya Ram Saroj, is the Investigating Officer, has duly supported the prosecution case. He has stated that in the house in question, accused persons were residing along with the deceased and from the said house, near the stairs, half burnt wood and half burnt Kathari as well as ash thereof were seized from the pyre on which, the body of the deceased was kept.
17. PW-8 Raj Narayan, scribed the FIR.
18. PW-9 Ram Vilas Ram, assisted during investigation.
19. In 313 of Cr PC statements, it has been stated by the accused persons that the father of accused no.1 and husband of accused no.2 was hospitalized at Allahabad and both of them were not present in their house at the time incident. They have stated that after many days of the incident, accused no.2 Sughara Devi returned to her house and came to know about the death of deceased. Though the written statements have been made by both the accused persons, taking a plea of alibi, but no such witness to this effect has been examined, nor any document has been filed by the defence to show that Suresh Yadav, was hospitalized at Allahabad.
20. True it is that there is no eye witness account to the incident, but undisputed position is that in the house in question, it is the accused persons, who were residing along with the deceased and the deceased died a homicidal death on 12.4.2007. It is not the case of accused persons that some third person might have gained entry in their house and have killed the deceased. Had the deceased been killed by some third person, a prompt report ought to have been lodged by the accused persons and they would not have made any effort to burn the dead body of the deceased in the house itself near the stairs, by making pyre. While effecting the seizure, prosecution has seized half burnt wood, half burnt Kathari and ash thereof from the pyre made in the house. This unnatural conduct of the accused persons itself speaks about their act. Further, unnatural conduct of the accused persons can be seen wherein it has been stated that accused no.2 Sughara Devi returned to her house after many days of the incident. Daughter-in-law of Sughara Devi and wife of accused no.1-Narendra Kumar Yadav died a homicidal death and yet Sughara Devi did not bother to return to her house for many days, is difficult to understand.
21. It is not necessary for the prosecution to discharge its burden by adducing only eye witnesses. If the circumstances are sufficient enough to establish that deceased died a homicidal death in her matrimonial house, where she was residing along with the accused persons, and when it has come in the statement of the Investigating Officer that the deceased was residing with the accused persons, then the burden lies on the accused to explain as to how the deceased died unnatural death. This is especially when the seizure of half burnt wood, half burnt Kathari and ash thereof were made and the accused persons have burnt the deceased on a pyre made in the house itself.
22. In a case where house murder is the issue, heavy burden is on the shoulders of the accused to explain as to under what circumstances the deceased died, but here no such explanation has come either in their statements recorded under Section 313 of the Code of Criminal Procedure nor did they take any defence to this effect by adducing any evidence. While dealing with the matter involving the murder committed inside the house, it has been held by the Apex Court in the matter of Trimukh Maroti Kirkan v State of Maharashtra8 as 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 Prosecutions (1944 AC 315) - quoted with approval by Arijit Pasayat, J in State of Punjab v. 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 held. 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 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 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."
21. In a case based on circumstantial evidence where no eye witness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court. [See: State of Tamil Nadu v. Rajendran (1999) 8 SCC 679 (para 6); State of UP v. Dr Ravindra Prakash Mittal, AIR 1992 SC 2045 (para 40); State of Maharashtra v. Suresh (2000) 1 SCC 471 (para 27); Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731 (para 15) and Gulab Chand v. State of MP, (1995) 3 SCC 574 (para 4)]."
23. Further in State of Rajasthan v Thakur Singh,9 it has been held by the Apex Court as under:
15. We find that the High Court has not at all considered the provisions of Section 106 of the Evidence Act, 1872. This section provides, inter alia, that when any fact is especially within the knowledge of any person the burden of proving that fact is upon him.
16. Way back in Shambhu Nath Mehra v. State of Ajmer, 1956 SCR 199, this Court dealt with the interpretation of Section 106 of the Evidence Act and held that the section is not intended to shift the burden of proof (in respect of a crime) on the accused but to take care of a situation where a fact is known only to the accused and it is well nigh impossible or extremely difficult for the prosecution to prove that fact. It was said:
"This [Section 101] 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. If the 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."
"17. In a specific instance in Trimukh Morati Kirkan v. State of Maharashtra (2006) 10 SCC 681) this Court held that when the wife is injured in the dwelling home where the husband ordinarily resides, and the husband offers no explanation for the injuries to his wife, then the circumstances would indicate that the husband is responsible for the injuries. It was said: (SCC p. 694, para 22) "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 which indicates that he is responsible for commission of the crime."
18. Reliance was placed by this Court on Ganeshlal v. State of Maharashtra {(1992) 3 SCC 106)} in which case the appellant was prosecuted for the murder of his wife inside his house. Since the death had occurred in his custody, it was held that the appellant was under an obligation to give an explanation for the cause of death in his statement under Section 313 of the Code of Criminal Procedure. A denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant was a prime accused in the commission of murder of his wife.
19. Similarly, in Dnyaneshwar v. State of Maharashtra {(2007) 10 SCC 445} this Court observed that since the deceased was murdered in her matrimonial home and the appellant had not set up a case that the offence was committed by somebody else or that there was a possibility of an outsider committing the offence, it was for the husband to explain the grounds for the unnatural death of his wife.
20. In Jagdish v. State of MP {(2009) 9 SCC 495} this Court observed as follows: (SCC 503, para 22) "22... It bears repetition that the appellant and the deceased family members were the only occupants of the room and it was therefore incumbent on the appellant to have tendered some explanation in order to avoid any suspicion as to his guilt."
21. More recently, in Gian Chand v. State of Haryana, (2013) 14 SCC 420, a large number of decisions of this Court were referred to and the interpretation given to Section 106 of the Evidence Act in Shambhu Nath Mehra was reiterated. One of the decisions cited in Gian Chand is that of State of West Bengal v. Mir Mohammad Omar, (2000) 8 SCC 382, which gives a rather telling example explaining the principle behind Section 106 of the Evidence Act in the following words:
"During arguments we put a question to learned Senior Counsel for the respondents based on a hypothetical illustration. If a boy is kidnapped from the lawful custody of his guardian in the sight of his people and the kidnappers disappeared with the prey, what would be the normal inference if the mangled dead body of the boy is recovered within a couple of hours from elsewhere. The query was made whether upon proof of the above facts an inference could be drawn that the kidnappers would have killed the boy. Learned Senior Counsel finally conceded that in such a case the inference is reasonably certain that the boy was killed by the kidnappers unless they explain otherwise."
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.
23. Applying this principle to the facts of the case, since Dhapu Kunwar died an unnatural death in the room occupied by her and Thakur Singh, the cause of the unnatural death was known to Thakur Singh. There is no evidence that anybody else had entered their room or could have entered their room. Thakur Singh 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 did he set up any case that some other person entered the room and caused the unnatural death of his wife. The facts relevant to the cause of Dhapu Kunwar's death being known only to Thakur Singh, yet he chose not to disclose them or to explain them. The principle laid down in Section 106 of the Evidence Act is clearly applicable to the facts of the case and there is, therefore, a very strong presumption that Dhapu Kunwar was murdered by Thakur Singh.
24. It is not that Thakur Singh was obliged to prove his innocence or prove that he had not committed any offence. All that was required of Thakur Singh was to explain the unusual situation, namely, of the unnatural death of his wife in their room, but he made no attempt to do this."
24. The judgments cited by the defence are of no help to them because in those cases, the prosecution had failed to discharge its initial burden, in some of the cases, homicidal death has not been proved and most importantly, in the present case, the evidence of making pyre in the house itself and burning the dead body of the deceased is there, which according to this Court, clinches the issue.
25. Present is a case where the circumstances itself speak about the conduct and act of the accused persons and considering the law laid down by the Apex Court in Trimukh Maroti Kirkan (supra), we are of the view that the trial Court was justified in convicting the accused persons. In 313 Cr PC statements, but for bald statements, nothing has been stated by the accused persons. As already stated above, had the deceased been killed by some third person, a prompt report would have been lodged by the accused persons and they would not have kept quiet waiting the police to launch prosecution against them.
26. Taking cumulative effect of the evidence, we find no error in the judgment impugned. The appeal has no substance and the same is, accordingly, dismissed. Appellants are already in Jail, therefore, no further order is required.
Dated:27.3.2019 RKK/-RK (Pritinker Diwaker, J) (Raj Beer Singh, J)