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.
25. Learned Counsel for Thakur Singh referred to Mahendra Pratap Singh v. State of Uttar Pradesh MANU/SC/0279/2009 : (2009) 11 SCC 334 to contend that where two views are
possible, one held by the Trial Court for acquitting the accused and the other held by the High Court for convicting the accused, the rule of prudence should guide the High Court not to disturb the order of acquittal made by the Trial Court. This decision is not at all apposite.
26. In our opinion, the High Court has very cursorily dealt with the evidence on record and has upset a finding of guilt by the Trial Court in a situation where Thakur Singh failed to give any explanation whatsoever for the death of his wife by asphyxia in his room. Moreover, the very fact that all the relatives of Thakur Singh turned hostile clearly gives room for suspicion and an impression that there is much more to the case than meets the eye. Even the complainant, Himmat Singh who squarely blamed Thakur Singh (in the FIR) for the murder of his wife, turned hostile to the extent of denying his relationship with Thakur Singh.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 357 OF 2005
State of Rajasthan ….Appellant
versus
Thakur Singh ….Respondent
J U D G M E N T
Madan B. Lokur, J.
Dated;June 30, 2014
1. The question for consideration is whether the facts and
circumstances of the case require the application of Section 106
of the Evidence Act, 1872 and if so, whether the
respondent/accused is guilty of the murder of his wife Dhapu
Kunwar. In our opinion, both questions need to be answered in
the affirmative and the High Court rendered a decision, perverse
in law, in acquitting Thakur Singh and reversing the decision of
the Trial Court.
The Facts
2. According to the first information report (FIR) lodged by
Himmat Singh (PW-2), the respondent/accused Thakur Singh was
married to Dhapu Kunwar and they had a daughter aged about
one year. Thakur Singh was working as a labourer or lorry driver in
Ahmadabad. Since he was not feeling well, he was brought to the
family home in Hingwania in Rajasthan on 25th February, 1999
where he stayed the whole day.
3. On 26th February, 1999 Thakur Singh’s brother Bagh Singh
(PW-3) was sent to fetch his brother-in-law Gotu Singh (brother of
Dhapu Kunwar) who then came to Hingwania. He seems to have
stayed overnight and on 27th February, 1999 Gotu Singh and
Thakur Singh were together for most of the day. In the evening at
about 4.30 p.m. on 27th February, 1999 Gotu Singh went to Gundli
and stayed there overnight. He came back to Hingwania the next
morning (28th February, 1999) at about 7.45 a.m.
4. However, before Gotu Singh arrived in Hingwania on 28th
February, 1999 Thakur Singh took his wife Dhapu Kunwar and
their daughter inside a room and bolted it from within.
Thereafter, Himmat Singh and Gotu Singh went from Hingwania
by bus to Chanderiya to meet Thakur Singh’s elder brother Shyam
Crl. Appeal No. 357 of 2005 Page 2 of 15
Page 3
Singh (PW-1). While Gotu Singh did not return to Hingwania,
Himmat Singh returned along with Shyam Singh. This was at
about 4.30 p.m.
5. Throughout the day Thakur Singh had locked himself up in a
room along with Dhapu Kunwar and their daughter. Other ladies in
the house, namely, the wife of Bhag Singh, (Chanda Kunwar PW-
18) wife of Pratap Singh (PW-6) and (Pushpa Kunwar PW-20) wife
of Ram Singh (PW-7) tried to persuade Thakur Singh to open the
door of the room but he did not do so. Later in the evening, after
Himmat Singh returned with Shyam Singh, they removed the
‘kelu’ from above the house and it was then discovered that
Thakur Singh had killed Dhapu Kunwar. The door of the house
was broken open and Thakur Singh was caught and tied by his
brothers and other relatives.
6. At about 6.15 p.m. on the same day, that is 28th February,
1999 Himmat Singh lodged an FIR in the police station giving the
facts mentioned above. There is a positive assertion in the FIR
that Thakur Singh had killed Dhapu Kunwar. Soon after the FIR
was registered, the investigating officer Kuber Singh (PW-23)
arrived at the place of the occurrence and took charge of the
Crl. Appeal No. 357 of 2005 Page 3 of 15
Page 4
investigations and arrested Thakur Singh on the basis of the
allegations made in the FIR.
Proceedings in the Trial Court
7. On completion of investigations, Kuber Singh filed a charge
sheet against Thakur Singh alleging the commission of offences
punishable under Sections 302, 326 and 324 of the Indian Penal
Code (IPC). The Upper District & Sessions Judge (Fast Track)
Chittorgarh who heard the case being Sessions Case No.90/2001
convicted Thakur Singh and found him guilty of an offence
punishable under Section 302 of the IPC and sentenced him to
undergo imprisonment for life and a fine of Rs.1000/-.
8. The Trial Judge found that the prosecution had examined as
many as 25 witnesses. Subsequently, on the request of the Public
Prosecutor another witness was called making a total of 26
prosecution witnesses. Of these, 14 were the immediate relatives
of Thakur Singh and all of them turned hostile.
9. The Trial Court found that some basic facts were
nevertheless brought on record. These basic facts were that
Dhapu Kunwar was the wife of Thakur Singh; she was lying dead
in the room occupied by her and Thakur Singh, and Dr. Khem
Crl. Appeal No. 357 of 2005 Page 4 of 15
Page 5
Chand Saini (PW-15) deposed that Dhapu Kunwar had some
injuries on her person but the cause of her death was asphyxia
and strangulation.
10. The Trial Judge held, on the basis of the evidence on record,
that no one except Thakur Singh could have caused the death of
Dhapu Kunwar. He had confined her and their daughter inside a
room and although no one saw him killing his wife, since the room
was bolted from inside, he had not opened it for the whole day
and the door had to be forced open, no one else could have
caused her death. The Trial Judge found that there was nothing to
suggest that any other person had entered Thakur Singh’s room
and there was no possibility of anybody else having caused
Dhapu Kunwar’s death by strangulation. It was also noted that
Thakur Singh gave absolutely no explanation in his statement
under Section 313 of the Code of Criminal Procedure as to how
Dhapu Kunwar had died of asphyxiation inside their room.
Proceedings in the High Court
11. Feeling aggrieved by the conviction and sentence awarded
by the Trial Court, Thakur Singh preferred D.B. Criminal Jail Appeal
No. 500 of 2001 in the High Court of Rajasthan. By a judgment
Crl. Appeal No. 357 of 2005 Page 5 of 15
Page 6
and order dated 4th August, 2004 (under appeal), the High Court
found no evidence to link Thakur Singh with the death of Dhapu
Kunwar. Accordingly, the appeal was allowed and he was
acquitted of the charge of an offence punishable under Section
302 of the IPC.
12. After the analysis of the evidence, the High Court came to
the following conclusions:-
(a) There is no evidence that anybody saw Thakur Singh
entering his room where Dhapu Kunwar had been murdered.
Also, no one saw him coming out from the room after the
murder.
(b) There is no evidence that after allegedly having
murdered Dhapu Kunwar, Thakur Singh came out of his room
and was caught by his relatives and handed over to the
police.
(c) There is no evidence that when Thakur Singh came out
of his room he was in possession of any weapon or that his
clothes were stained with blood.
13. The High Court also concluded that the Trial Judge was
swayed by the idea that since Thakur Singh was the husband of
Dhapu Kunwar, therefore, there was every possibility that he was
Crl. Appeal No. 357 of 2005 Page 6 of 15
Page 7
in the house and he continued to remain in the house when
Dhapu Kunwar was murdered. The High Court concluded that
though this is a strong circumstance, there must be some
evidence in support of this circumstance and the best evidence
would be that of Gotu Singh who was not produced by the
prosecution. Moreover, the main prosecution witnesses (who
happen to be the relatives of Thakur Singh) had turned hostile.
Discussion and conclusion
14. Questioning the decision of the High Court acquitting Thakur
Singh, the State of Rajasthan has preferred this appeal.
15. We find that the High Court has not at all considered the
provisions of Section 106 of the Evidence Act, 1872.1 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.
1 106. 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.
Illustrations
(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.
Crl. Appeal No. 357 of 2005 Page 7 of 15
Page 8
16. Way back in Shambhu Nath Mehra v. State of Ajmer2
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 Maroti Kirkan v. State
of Maharashtra3 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
2 1956 SCR 199
3 (2006) 10 SCC 681
Crl. Appeal No. 357 of 2005 Page 8 of 15
Page 9
circumstances would indicate that the husband is responsible for
the injuries. It was said:
“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
Maharashtra4 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 Maharashtra5 this
Court observed that since the deceased was murdered in her
4 (1992) 3 SCC 106
5 (2007) 10 SCC 445
Crl. Appeal No. 357 of 2005 Page 9 of 15
Page 10
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 Madhya Pradesh6 this Court
observed as follows:
”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 Haryana7 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 Omar8 which gives a rather telling example
explaining the principle behind Section 106 of the Evidence Act in
the following words:
6 (2009) 9 SCC 495
7 (2013) 14 SCC 420
8 (2000) 8 SCC 382
Crl. Appeal No. 357 of 2005 Page 10 of 15
Page 11
“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
Crl. Appeal No. 357 of 2005 Page 11 of 15
Page 12
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.
25. Learned counsel for Thakur Singh referred to Mahendra
Pratap Singh v. State of Uttar Pradesh9 to contend that
where two views are possible, one held by the Trial Court for
acquitting the accused and the other held by the High Court for
convicting the accused, the rule of prudence should guide the
High Court not to disturb the order of acquittal made by the Trial
Court. This decision is not at all apposite.
9 (2009) 11 SCC 334
Crl. Appeal No. 357 of 2005 Page 12 of 15
Page 13
26. In our opinion, the High Court has very cursorily dealt with
the evidence on record and has upset a finding of guilt by the Trial
Court in a situation where Thakur Singh failed to give any
explanation whatsoever for the death of his wife by asphyxia in
his room. Moreover, the very fact that all the relatives of Thakur
Singh turned hostile clearly gives room for suspicion and an
impression that there is much more to the case than meets the
eye. Even the complainant, Himmat Singh who squarely blamed
Thakur Singh (in the FIR) for the murder of his wife, turned hostile
to the extent of denying his relationship with Thakur Singh.
27. The High Court expressed the view that since the
prosecution did not produce Gotu Singh as its witness, its case
ought to fail. In our opinion, Gotu Singh could not have added to
the case of the prosecution. He had arrived on the fateful day
after Thakur Singh had locked himself, Dhapu Kunwar and their
child in their room. He did not even meet them on the fateful day
and was oblivious of the events that had taken place that day.
Therefore, producing him in the witness box would not have been
of any consequence.
Crl. Appeal No. 357 of 2005 Page 13 of 15
Page 14
28. On a consideration of the facts of the case we are of the
opinion that the approach arrived at by the Trial Court was the
correct approach under the law and the High Court was
completely in error in relying primarily on the fact that since most
of the material prosecution witnesses (all of whom were relatives
of Thakur Singh) had turned hostile, the prosecution was unable
to prove its case. The position in law, particularly Section 106 of
the Evidence Act was completely overlooked by the High Court
making it arrive at a perverse conclusion in law.
Conclusion
29. The judgment and order passed by the High Court is set
aside and that of the Trial Judge restored. The State should take
the necessary steps to apprehend Thakur Singh so that he can
serve out the sentence awarded to him by the Trial Court.
30. The appeal is allowed, as above.
………………………………J
(Madan B. Lokur)
………………………………J
(S.A. Bobde)
New Delhi;
June 30, 2014
No comments:
Post a Comment