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Tuesday, July 8, 2014

Sec.106 of Evidence Act - Non- explanation of husband how his wife was died when both together in a inside locked room - though all relatives of Accused turned hostile - burden never shifts as the prosecution proved about locking of door with his wife in side a room for whole day - where the wife found dead Apex court held and relied on 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. = State of Rajasthan ….Appellant versus Thakur Singh ….Respondent = 2014 - June. Part -http://judis.nic.in/supremecourt/filename=41708

Sec.106 of Evidence Act - Non- explanation of husband how his wife was died when both together in a inside locked room - though all relatives of Accused turned hostile - burden never shifts as the prosecution proved about locking of door with his wife in side a room for whole day - where the wife found dead  Apex court held  and relied on 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. =

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.
Way back in Shambhu Nath Mehra v. State of Ajmer[2] 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.”
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.

2014 - June. Part -http://judis.nic.in/supremecourt/filename=41708
                                                                  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.

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 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 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 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  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:-
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.
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.
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 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.
16.   Way back in Shambhu Nath Mehra v. State of Ajmer[2] 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
Maharashtra[3] 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:
“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[4] 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[5]   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  Madhya  Pradesh[6]  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 Haryana[7] 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[8]  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.
25.   Learned counsel for Thakur Singh referred to Mahendra Pratap Singh  v.
 State of Uttar Pradesh[9]   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.

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.
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
-----------------------
[1]   [2] 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.

[3]   [4] 1956 SCR 199
[5]   [6] (2006) 10 SCC 681
[7]   [8] (1992) 3 SCC 106

[9]   [10] (2007) 10 SCC 445
[11]  [12] (2009) 9 SCC 495

[13]  [14] (2013) 14 SCC 420

[15]  [16] (2000) 8 SCC 382
[17]  [18] (2009) 11 SCC 334


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