TaxTMI 
TaxTMI 
2023 (10) TMI 1371
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....Section 302 of the Indian Penal Code, 1860, (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 ....
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....cant has filed photocopies of letters written by his daughter and 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 ....
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....dha at Mangolpuri, Delhi forcibly. Before leaving, my daughter expressed her unwillingness to go to Delhi, to my 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 ....
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....e as under: a. Post mortem report Exh.Ka-4 b. Inquest report Exh. Ka-5 c. Two letters written by the deceased to her father i.e., PW1 Exh.Ka-1 and Ka-2. 9. The appellants herein examined Shivam Rawat the 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 impl....
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.... to herself because of her illness". This witness produced by defence has based his evidence on new facts. During cross-examination, examination of prosecution witness by defence, no question regarding such matter was asked as to whether the deceased was distressed either 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, beca....
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....dead body to Ratanpur. Next day I came to Kotdwar. I gave this information to Police station. Then Police and I came to Ratanpur. There police prepared inquest report. In inquest report I too was made a witness". As soon as witness received this information he raised a suspicion 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 t....
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....vir Singh and Shrimati Maheshwari Devi that they are demanding dowry. This fact is also proved by document letters exhibit A-1 and exhibit A-2 present in the file. Charge under section 498A of Indian Penal Code against accused Balvir Singh and Shrimati Maheshwari Devi is proved beyond doubt. 27. 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 Ma....
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....ection 114(g) of the Evidence Act. We think that the Court below was entitled to take such inference in the backdrop of the case as depicted above. 4. We, accordingly, find no reason for interference. The Appeal is dismissed. The judgment of the Court below is affirmed. The Application (CRMA No. 1744 of 2013) 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 someti....
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....l appearing for the State vehemently submitted that no error not to speak of any error of law could be said to have been committed by the High Court as well as by the trial court in holding the appellants guilty of the respective offences. 23. It was sought to be vehemently argued that the deceased along with her son was residing at 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 t....
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....inistered to the deceased. b. We completely rule out the theory of suicide as sought to be put forward on behalf of the appellants c. If it is the case of the convict-husband that he had taken the deceased to the Sanjay Gandhi Hospital at Delhi then he should have led some evidence to indicate how she was taken to the hospital, in what type of vehicle 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 giv....
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.... feeling quite harassed here. There is no faith of life as to when it may come to an end, any untoward incident may happen with me at any time. Father Saheb,since the time my marriage was solemnized, I have been feeling extremely harassed from the acts of my mother-in-law and husband but I have not told you about this till date thinking that good sense will prevail with passage of time but, both of these intend 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 s....
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....im. Illustration (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him." 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-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....
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....nce 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) 37. In Tulshiram Sahadu Suryawanshi and Another v. State of Maharashtra reported in (2012) 10 SCC 373, this Court observed as under: "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 ....
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....an does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions [1944 AC 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 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....
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....ead 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 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 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 a....
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....ments necessary to establish the offence. It does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifically within the knowledge of the accused and it does not throw the burden of the accused to show that no crime was committed. To infer the guilt of the accused from absence of reasonable explanation in a case where the other circumstances are not by themselves enough to call for his explanation is to relieve the prosecution of its legitimate burden. So, until a prima facie case is established by such evidence, the onus does not shift to the 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....
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....found without one, must be especially within the knowledge of the traveller himself : see Section 106 of the Indian Evidence Act, illustrations (a) and (b). 46. A manifest distinction exists between the burden of proof and the burden of going forward with the evidence. Generally, the burden of proof upon any affirmative proposition necessary to be established as the foundation of an issue does not shift, but the burden of evidence or the burden of explanation may shift from one side to the other according to the testimony. Thus, if the prosecution has offered evidence which if believed by the court would convince 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 evid....
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....: "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." (Emphasis supplied) 51. We should 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....
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....convict was expected to lead some evidence as to what had transpired at the Sanjay Gandhi Hospital. He has maintained a complete silence. It is only the appellant-convict who could have explained in what circumstances and in what manner he had taken his wife to the Sanjay Gandhi Hospital and who attended his wife at the hospital. If it is his case, that his wife was declared dead on being brought at the hospital then it is difficult to believe that the hospital authorities allowed the appellant to carry the dead body back home without completing the legal formalities. 54. In the aforesaid context, we must look into the decision of this Court in the case of 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 respe....
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....to and rely on a decision of this Court in Kalu alias Laxminarayan v. State of Madhya Pradesh reported in (2019) 10 SCC 211, wherein this Court after referring to its various other decisions on the applicability of Section 106 of the Evidence Act observed as under: "16. In view of our conclusion that the prosecution has clearly established a prima facie case, the precedents cited on behalf of the appellant are not considered relevant in the facts of the present case. Once the prosecution established a prima facie case, the appellant was obliged to furnish some explanation under Section 313 CrPC with regard to the circumstances under which the deceased met an unnatural death 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 ....
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....it. This Court held in Gurcharan Singh v. State of Punjab [AIR 1956 SC 460 : (1956) Cri LJ 827] that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certainly lies upon him. It is a different matter that the quantum of evidence by which he may succeed in discharging his burden of creating a reasonable belief, that circumstance, absolving him from criminal liability may have existed, is lower than the burden resting upon the prosecution to establish the guilt of an accused beyond reasonable doubt. 10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general 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 b....