TaxTMI 
TaxTMI 
TaxTMI 
2023 (10) TMI 1371
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....860, (for short, 'the IPC') alongwith the offence punishable under Section 498A of the IPC and Maheshwari Devi (mother-in-law) guilty of the offence punishable under Section 498A of the IPC read with Section 34 of the IPC. CASE OF THE PROSECUTION 3. The deceased, namely, Sudha was married to Balvir Singh. The marriage of the deceased with Balvir Singh was solemnised on 12.12.1997. In the wedlock a son was born. On 02.06.2007, father of the deceased, namely, Virendra Singh (PW1) preferred an application in the court of the Judicial Magistrate First Class, Kotdwar, Garhwal under Section 156(3) Code of Criminal Procedure, 1973 (for short, 'the CrPC'), seeking a direction to the Police to register an FIR in connection with the death of his daughter in suspicious circumstances. The Judicial Magistrate First Class, Kotdwar, Garhwal, passed the following order dated 04.06.2006: "Order 04.06.2006 Applicant Virendra Singh had filed application under section 156(3) Cr.P.C. for passing order for registration of First Information Report against accused persons, wherein, applicant has mentioned as under that marriage of daughter of applicant Sudha had been solemnized on 12.12.1997 with....
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....nd photocopies of applications lodged by him with Inspector Incharge of Police Station Kotdwar and Deputy District Magistrate, Kotdwar in court in support of his application filed under section 156(3) Cr.P.C. On the basis of documents filed by applicant in support of his application, prima facie offence seems to be made out. Therefore, in such circumstances, registration of First Information Report seems to be essential. Therefore, S.H.O., Police Station Kotdwar is ordered that hiving registered First Information Report in the light of application filed by applicant under section 156(3) Cr.P.C and to conduct investigation. Sd/- Judicial Magistrate" 4. Pursuant to the aforesaid order passed by the learned Judicial Magistrate, the First Information Report came to be registered at the Kotdwar Police Station on 09.06.2007 for the offence punishable under Sections 302, 498A read with Section 34 of the IPC and Sections 3 and 4 respectively of the Dowry Prohibition Act, 1961 (for short, 'the Act 1961'). The First Information Report reads thus: "Sir, Applicant Virendra Singh, son of late Mohan Singh, resident of Village Mawasa, Patti -Ajmer Pall, Tehsil Kotdwar Garhwal r....
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....younger brother Harender over telephone. 5. That on 13.05.07 at about 1.30 o'clock in the night my younger brother Harender Singh received information from Delhi over phone that my daughter Sudha has left for her heavenly abode all of a sudden in Mangolpuri. Balvir Singh did not give this information to any of our family member rather some neighbour gave this information to the younger brother of Harender Singh; Shivcharan, who resides in Delhi. Shivcharan visited Mangolpuri in the night, where he came to know that my daughter was in good health on that night and Balvir Singh after the death of my daughter, took her dead body to his home at Ratanpur, Kotdwar by private ambulance without giving information to anyone. When we came to know about this fact, then we informed the police of Police Station Kotdwar but we could not provide all details at that time. As reddish injury marks were apparent on the neck of my daughter, Police initiated inquest proceedings and arranged postmortem of her dead body. Sir, I have reason to believe that the said Maheshwari Devi and her son Balvir Singh have killed my daughter having hatched a conspiracy and have also induced her little child also in....
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....son of the deceased as a defence witness (DW-1). The appellants also examined one Anoop Singh cousin brother of the deceased as a defence witness (DW-2). 10. Upon conclusion of the oral evidence, the further statement of both the appellants was recorded by the trial court. Two specific questions were put by the trial court to the convict Balvir Singh and the reply to the two questions were as under: "Question No. 14:- Do you have anything else to say? Answer:- I am innocent. Complainant has lodged a false case. Question No. 15 :- Poison has been found in the examination of viscera of the deceased. What do you have to say in this regard? Answer:- I do not have knowledge as to how the poison has been found, but the deceased was a heart patient and used to consume medicines." 11. The mother-in-law of the deceased stated in her further statement recorded under Section 313 CrPC that she was innocent and had been falsely implicated. 12. The trial court upon appreciation of the oral as well as documentary evidence on the record held the husband guilty of the offence of murder punishable under Section 302 of the IPC and also for causing harassment punishable under Section 498A ....
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....ither before her illness or because of her illness. DW-1 who is deceased's son and on whom defence stressed upon, has not stated anything regarding the deceased being distressed due to her illness. DW-1 has only stated that death occurred during treatment, while DW-2 has based his evidence on new facts which are not concurring with the facts of defence because they have said that treatment was given at Escorts Hospital. Regarding this defence has questioned PW-1 that in year 2006 accused paid a bill of rupees 3,82,500/-at Escorts Hospital which was refuted by him. Regarding this defence has produced documents. I have examined those documents. Although defence have not proved those documents but in file page number 48A/2 a document of rupees 3,82,500/-is present which was given by Dr. Nitish Chandra, but said document is not a bill of payment instead it is an estimate required for complete checkup and operation, because in the document it is written that -'Advance payment may please be made at the time of admission by case/demand draft in favour of Escorts Heart Institute and Research Centre Ltd. Payable at New Delhi'. By looking at the document it is clear that accused and othe....
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.... on the incident. Police station was informed. This witness further said "I wrote a letter to Police station to investigate into her death. In this regard I made a written complaint to S.D.M., Kotdwar". This witness further said "then, with my lawyer's help I filed a petition under section156(3) of Criminal Procedure Code on which court ordered to register a case". This witness on receiving information about incident immediately raised suspicion and asked for a postmortem to be carried out. On 14.5.2007 an application was written to Police station to investigate into the death of the Deceased. Police made inquest report and conducted postmortem. In this situation, defence cannot take benefit of the fact that complaint was registered under section 156(3) of Criminal Procedure Code, because this witness had informed Police station and S.D.M. Because of this information given by him to police, police came to spot and made inquest report. 24. In viscera report FSL has detected poison, in such situation the burden was on accused to prove whether deceased herself consumed poison and whether the deceased was under mental stress due to which she might have consumed poison, but defen....
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....7. After above arguments I have reached the conclusion that prosecution has proved that accused Balvir Singh and Maheshwari Devi mistreated and harassed deceased for dowry and demanded rupees 1 lakh from deceased. Therefore accused Balvir Singh and Maheshwari Devi are fit to be convicted under section 498A/34 Indian Penal Code. Because in this incident deceased has died and it has come up in the evidence that deceased was living with accused Balvir Singh in Delhi, therefore charge under section 302 of Indian Penal Code against accused is proved and he is fit to be convicted for the said charge. As prosecution could not prove that accused Shrimati Maheshwari Devi was at Delhi with Balvir Singh during the time of deceased's death and no role of Maheshawari Devi is proved in deceased's death, therefore no charge under section 302 of Indian Penal Code is proved against Shrimati Maheshwari Devi and therefore, she is fit to be discharged of the above said charge." 14. The appellants feeling dissatisfied with the judgment and order of conviction passed by the trial court went in appeal before the High Court. The High Court dismissed both the appeals and thereby affirmed the judg....
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....3) filed for examining applicant as witness for the defence is not pressed. The same is dismissed. A1 is in Jail. He will serve out the sentence as awarded by the Court below. A2 is on bail. Her bail bond is cancelled. She is directed to surrender forthwith to serve out the sentence awarded against her." 15. In such circumstances referred to above, the appeals are here before this Court with the captioned two appeals. SUBMISSIONS ON BEHALF OF THE APPELLANTS 16. Ms. Manisha Bhandari, the learned counsel appearing for the appellant vehemently submitted that the trial court as well as the High Court committed a serious error in holding the appellants guilty of the offence as enumerated above. It was argued that the case is one of "No Evidence" so far as the charge of murder is concerned. According to the learned counsel, the husband was working in Delhi past sometime before the date of incident whereas the deceased along with her son was staying at their native home town in the State of Uttarakhand. It was also sought to be argued that the deceased was not keeping well as she was suffering from a heart ailment. It was pointed out from the post mortem report as well as from the or....
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....t their village whereas the husband was doing some job in Delhi. The husband on the pretext of medical treatment of the deceased brought her from the village to Delhi and within three days of their arrival in Delhi, the incident occurred. It was argued that if the case put forward by the husband is to be accepted then it is to be believed that while something went wrong with the deceased, the husband was very much present because according to the husband he had immediately taken the deceased to the Sanjay Gandhi Hospital. On being declared dead at the hospital, he thereafter brought the dead body to the village. 24. In such circumstances referred to above, the learned counsel appearing for the State submitted that in view of Section 106 of the Indian Evidence Act, 1872 (for short, 'the Evidence Act' or 'the Act 1872'), it is for the convicthusband to explain as to what had actually transpired. It is the convict-husband who could be said to be in special knowledge of things that might have transpired at the relevant point of time. 25. It was argued that the presence of poison in the viscera would indicate that the same had been administered to the deceased in some manner and no on....
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....cle and who attended the deceased at the hospital? In the case of the present type, it is very difficult to believe that if the deceased had been taken to the hospital and declared dead on arrival, the hospital authorities would allow the convicthusband to carry the dead body of his wife back home. It would become a medico-legal case and the hospital would definitely inform the police. d. The dubious conduct of the convict-husband of not informing the family members about the death of their daughter. Though in his further statement, the convict-husband has said that he had informed the family members of the deceased yet the evidence of PW3 Harender Singh (uncle of the deceased) is otherwise. In his oral evidence, he has deposed as under: "My niece Sudha had died on 13.5.2007. Information thereof was given to me by my brother Shivcharan over the telephone. Shivcharan was living in Delhi. Then I told Shivcharan to inquire into the matter. Shivcharan went to the house of Balvir but he was not there. Then I gave this information in the Police Station, Kotdwar at 2 o'clock in the night over the telephone and also informed my brother Virendra. Thereafter, my brother came to the....
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....to eliminate me. They say that your father has not given anything in dowry. They told me that if you bring Rs.1 lakh cash from your father then only you can stay here, otherwise you go to your parents' home, or else we will eliminate you. I told them that my father is a labourer, and he cannot arrange Rs. 1 lakh. On account of this, my mother-inlaw and husband have been beating me. They did not provide me food for several weeks. I remained hungry & thirsty and the women of village somehow provided me food by hiding themselves from these people. My mother-in-law even forbade me from giving milk to my 9-month-old son and forced me to bring firewood from jungle. Even after that, food was not provided to me. I have been staying at my matrimonial home throughout. You invited us several times for various functions and ceremonies but they neither allowed me to go nor they went themselves. They say that if you wish to go then bring Rs. One lakh otherwise you will not be allowed to return here. They say that your parents and family members should not come here, if they do then it would not be good for me. My father, I do not have any support, I am surviving here at mercy of God. I have been....
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...., the burden of proving that fact is upon him. The word "especially" means facts that are pre-eminently or exceptionally within the knowledge of the accused. The ordinary rule that applies to the criminal trials that the onus lies on the 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 reported in 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.....
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....t 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 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 ....
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....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 prosecut....
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....ule, 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 the casualty. 32. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in conditions such as this. Page 29 of 42 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 ....
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....accused. 43. Section 106 obviously refers to cases where the guilt of the accused is established on the evidence produced by the prosecution unless the accused is able to prove some other facts especially within his knowledge which would render the evidence of the prosecution nugatory. If in such a situation, the accused gives an explanation which may be reasonably true in the proved circumstances, the accused gets the benefit of reasonable doubt though he may not be able to prove beyond reasonable doubt the truth of the explanation. But if the accused in such a case does not give any explanation at all or gives a false or unacceptable explanation, this by itself is a circumstance which may well turn the scale against him. In the language of Prof. Glanville Williams: "All that the shifting of the evidential burden does at the final stage of the case is to allow the jury (Court) to take into account the silence of the accused or the absence of satisfactory explanation appearing from his evidence." 44. To recapitulate the foregoing : What lies at the bottom of the various rules shifting the evidential burden or burden of introducing evidence in proof of one's case as opposed....
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....them of the accused's guilt beyond a reasonable doubt, the accused is in a position where he should go forward with counter-vailing evidence if he has such evidence. When facts are peculiarly within the knowledge of the accused, the burden is on him to present evidence of such facts, whether the proposition is an affirmative or negative one. He is not required to do so even though a prima facie case has been established, for the court must still find that he is guilty beyond a reasonable doubt before it can convict. However, the accused's failure to present evidence on his behalf may be regarded by the court as confirming the conclusion indicated by the evidence presented by the prosecution or as confirming presumptions which might have been rebutted. Although not legally required to produce evidence on his own behalf, the accused may therefore as a practical matter find it essential to go forward with proof. This does not alter the burden of proof resting upon the prosecution (Wharton's Criminal Evidence, 12th Edn. 1955, Vol. 1, Ch. 2 p. 37 and foil). Leland v. State reported in 343 U.S. 790=96 L.Ed. 1302, Raffel v. U.S. reported in 271 U.S. 294=70 L.Ed. 1054. WHAT IS....
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....hould also look into the decision of this Court in the case of Ram Gulam Chaudhary and Others v. State of Bihar reported in (2001) 8 SCC 311, wherein this Court made the following observations in para 24 as under: "24. Even otherwise, in our view, this is a case where Section 106 of the Evidence Act would apply. Krishnanand Chaudhary was brutally assaulted and then a chhura-blow was given on the chest. Thus chhura-blow was given after Bijoy Chaudhary had said "he is still alive and should be killed". The appellants then carried away the body. What happened thereafter to Krishnanand Chaudhary is especially within the knowledge of the appellants. The appellants have given no explanation as to what they did after they took away the body. Krishnanand Chaudhary has not been since seen alive. In the absence of an explanation, and considering the fact that the appellants were suspecting the boy to have kidnapped and killed the child of the family of the appellants, it was for the appellants to have explained what they did with him after they took him away. When the abductors withheld that information from the court, there is every justification for drawing the inference that they had mu....
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....f Deonandan Mishra v. The State of Bihar reported in AIR 1955 SC 801. In the said decision, there is a very important passage in which, the learned Judges deal with the effect of failure of the accused to offer any explanation for circumstances appearing in evidence against him in a prosecution based upon circumstantial evidence. At the cost of repetition, the law is very clear that the accused is not bound to offer any explanation, that there is no burden cast upon him to do so and that the onus of proof does not shift in respect of the vital matter of guilt at any stage of a criminal trial. But as stated by this Court: "It is true that in a case of circumstantial evidence not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case where the various links have been satisfactorily made out and the circumstances point to the accused as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which, if accepted, though not proved, would afford a reas....
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....inside the house. His failure to offer any explanation whatsoever therefore leaves no doubt for the conclusion of his being the assailant of the deceased." (Emphasis supplied) 58. We should also look into the decision of this Court in the case of Sawal Das v. State of Bihar reported in (1974) 4 SCC 193. In the said case the trial court had come to the conclusion that, upon the established circumstances listed above, no other inference was left open to the Court except that the appellant and his father and stepmother had conjointly committed the murder of the deceased Smt. Chanda Devi on the morning of 28.05.1965 and that the appellant and his father had then hastily and stealthily disposed off the body in order to conceal the commission of the offence. It had also taken into account, in coming to this conclusion, the fact that the appellant had unsuccessfully set up a plea, in his written statement, that, Smt. Chanda Devi, who was alleged by him to be wearing a nylon Saree said to have caught fire accidentally while she was using a kerosene stove in her room, died of extensive burns on her body and collapsed. The appellant had alleged that Smt. Chanda Devi was debilitated and k....
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....eneral or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. The crucial question in the case before us is : Has the prosecution discharged its initial or general and primary burden of proving the guilt of the appellant beyond reasonable doubt?" (Emphasis supplied) 60. We also pose the very same question like the one posed in Sawal Das (supra) referred to above, "has the prosecution discharged its initial or general and primary burden of proving the guilt of the appellants beyond reasonable doubt?" 61. We are of the view that the circumstances narrated by us in para 28 of this judgment constitute more than a prima facie case to enable the prosecution to invoke Section 106 of the Evidence Act and shift the burden on the accused husband to explain what had actually happened on the date his wife died. 62. These appeals remind us of what this Court observed in the case of Dharam Das Wadhwani v. State of Uttar Pradesh: "The rul....