TMI Blog2023 (10) TMI 1371X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot always apply to negative facts. It is not for the prosecution to anticipate and eliminate all possible defences or circumstances which may exonerate an accused. Again, when a person does not act with some intention other than that which the character and circumstances of the act suggest, it is not for the prosecution to eliminate all the other possible intentions. 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 - although not leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tar Pradesh [ 1974 (3) TMI 124 - SUPREME COURT] The rule of benefit of reasonable doubt does not imply a frail willow bending to every whiff of hesitancy. Judges are made of sterner stuff and must take a practical view of legitimate inferences flowing from evidence, circumstantial or direct. The role of courts in such circumstances assumes greater importance and it is expected that the courts would deal with such cases in a more realistic manner and not allow the criminals to escape on account of procedural technicalities, perfunctory investigation or insignificant lacunas in the evidence as otherwise the criminals would receive encouragement and the victims of crime would be totally discouraged by the crime going unpunished. The courts are expected to be sensitive in cases involving crime against women. Both the appeals fail and are hereby dismissed. - J.B. Pardiwala And Prashant Kumar Mishra JJ. JUDGMENT J. B. PARDIWALA, J.: 1. Since both the captioned appeals arise from a common judgment and order passed by the High Court dismissing two criminal appeals of two accused persons tried in one sessions case those were heard analogously and are being disposed of by this common judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell acquainted with medicines. According to the Applicant, Balvir Singh before committing murder of his daughter managed to arrange fake prescription slips which he has kept with him. Despite reluctance of his daughter, on 09.05.07 Balvir left his son at Kotdwar and forcibly took my daughter Sudha who was in healthy condition to Mangolpuri, Delhi. Before leaving, Applicant s daughter expressed her wish to her uncle over telephone about her reluctance for going to Delhi. On 13.05.07 at about 1.30 o clock in the night Applicant s younger brother Harender Singh received information from Delhi over phone that his daughter Sudha has all of a sudden left for her heavenly abode in Mangolpuri. Balvir Singh did not give this information to any of the other 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 itself, where he came to know that she was in good health on that night and Balvir Singh after the death of the deceased, took her dead body to his home at Ratanpur, Kotdwar by private ambulance without giving information to anyone. When the applicant came to know ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een getting pension and also owns landed property. Balvir Singh is a greedy person and under the greed of pension of his mother, he has been harassing my daughter and subjecting her to beatings, not providing food to her, and that the women of the village somehow provided her food by hiding themselves from these people. My daughter wrote letters to us complaining about this fact. When Balvir Singh and his mother came to know about these letters, then they pressurized my daughter for asking back the said letters and we accordingly returned those letters, but letter dated 20.05.04 which has been lodged by us at Police Station, remained with us. In this letter also my daughter has put her grievances and harassment that she faced. 3. That on getting knowledge of this incident me, my few relatives, Panch, and Pradhan Ratanpur visited and tried to convince Balvir Singh and his mother not to indulge in such acts so that in future my daughter may stay there properly and I did not lodge any report. However, Maheshwari Devi and Balvir Singh kept on hatching conspiracy for eliminating my daughter Sudha. Once they had made my daughter consumed poison also but my daughter had not told this fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a, Patti Ajmer Palla, Tehsil Kotdwar, District Pouri Garhwal. Note: I, HC 14 Kabool Singh Prajapati do hereby certify that copy of formal report has been recorded word to word which is clearly legible. Sd/- HC 14 Kabool Singh Police Station Kotdwar Dated : 09.06.07 5. Upon registration of the FIR, the investigation was carried out. The dead body of the deceased on being brought from Delhi to Kotdwar, was sent for post mortem. The inquest panchnama was drawn in presence of the independent panch witnesses. The statements of various witnesses were recorded by the investigating officer under Section 161 of the CrPC. The viscera collected during the course of the post mortem was sent to the forensic science laboratory. Both the appellants herein were arrested and remanded to judicial custody. 6. Upon conclusion of the investigation, chargesheet was filed for the offences enumerated above. To the charge framed by the trial court vide order dated 21.02.2009, the appellants pleaded not guilty and claimed to be tried. 7. The prosecution led the following oral evidence: a. PW1 Virendra Singh (Father of the deceased) b. PW2 Dr. Indra Singh Samant, Govt. Hospital (the Doctor who performed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Exhibit A1 and Exhibit A2 too. Moreover, after her death poison was found in viscera report. However, nothing has been said by the defence about how it entered the body of the deceased. Accused statement was registered under section 313 of Criminal Procedure Code and he was clearly asked that poison was found in deceased's visceral examination report, what you have to say about it? Regarding this accused Balvir Singh said that I do not have knowledge how it was found, but deceased was heart patient and was on medication . Regarding this, defence examined DW-1 who is deceased's son and who said in his examination-in-chief that my mother was undergoing treatment at Delhi, where she died . He further said my grandmother and father love me a lot and treated my mother nicely . He is a child witness. This witness told that the death of the deceased took place during treatment but, nothing is said about where she was undergoing treatment, or how she died. Defence argued that deceased was a heart patient and because of which death occurred but this argument is negated by viscera report. DW-2 produced by defence said in his examination-inchief that accused was getting the deceased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay Gandhi Memorial Hospital regarding which no document was filed. Although this witness in his cross-examination also admitted that he was told this by Balvir Singh. This witness is supporting defence, but this witness statement is contrary to the oral and documentary evidence in the file. If the accused admitted deceased to Sanjay Gandhi Memorial Hospital after she had an attack on 13.5.2007, then there are no documents regarding this in the file and the defence has not given any statement as to this. 23. Defence has argued that deceased Sudha died on 13.5.2007. On 13.5.2007 her last rites were performed and complainant got the case registered under section 156(3) on 2.6.2007. Application was filed very late and this delay has not been. explained. I am not in agreement with this argument of defence. Victim died on 13.5.2007 and it is said that on 13.5.2007 her last rites were performed, but on receiving the news of death prosecution witness immediately put forward his doubt. In inquest report it is clearly written that deceased Sudha's death is suspicious, and postmortem should be done. In above said inquest report PW-1 is one of the witnesses, he is deceased's father too ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndian Evidence Act section 114(g) - that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. 25. In the presenting case this is argued by defence that because of chemical reaction medicine can turn into poison in deceased's body, therefore the burden of proof was on defence, but regarding this no evidence was produced by defence. In such situation under section 114(g) it is important to presume that if any evidence was produced by accused then it would have been against him, because of which no evidence was produced by defence. But deceased s death took place at Delhi. Accused Balvir Singh brought dead body from Delhi to Kotdwar. PW-1 in his examination-in-chief has said that it is true that my daughter was living with accused at Delhi . On the basis of statement given by PW-1, deceased s death took place at Delhi, where she was living with accused Balvir Singh. On the basis of viscera report deceased died of poison. At the time of death only accused Balvir Singh was present. Accused Maheshwari Devi was not in Delhi. Since, deceased died at Delhi, in such situation charge under, section 302 of Indian Penal Code is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ratory, Agra, to whom the same was sent, reported that the same contained poison known as Aluminium Phosphide . All these facts were in the chargesheet. The death, according to the chargesheet, had taken place at Delhi, when A1 alone was present with the victim. It is A1, who caused the dead body of the victim to be brought to Ratanpuri, Kotdwara. It was not the contention of A1 that the victim, at any point of time, had any suicidal tendency or that he suspects that the victim committed suicide. It was the contention of A1, as is evident from the trend of crossexamination of the prosecution witnesses, and, in particular, suggestions given to the prosecution witnesses that the victim was suffering from heart disease, for that, matter required frequent treatment and administration of medicine. It was suggested that such medicine, so administered, turned into the aforementioned poison. That being an assertion on behalf of A1, it was he, who was required to establish the same by tendering adequate evidence, which he miserably failed. A dead person, whose cause of death was by poisoning, was, accordingly, found on the lap of A1. A1 had special knowledge pertaining thereto. He failed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... informed the family members of the deceased about her sudden death. It is the husband who carried the dead body from Delhi to his village at Uttarakhand. 18. It was argued that the entire case hinges on circumstantial evidence. It is a primary principle that the accused must be and not merely may be guilty. 19. The learned counsel submitted that the facts which, the prosecution has so established should be consistent only with the hypothesis of the guilt of the accused that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances are not of a conclusive nature and tendency. The circumstances do not exclude every possible hypothesis except the one to be proved. 20. In the last, the learned counsel submitted that this Court may set aside the conviction for the offence of murder and substitute the same with the offence of abetting the commission of suicide punishable under Section 306 of the IPC. It was pointed out that the convict-husband is undergoing sentence past more than 9 years. 21. In such circumstances referred to above, the learned counsel prayed that there being merit in both her appeals, those may be allowed. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be dismissed. ANALYSIS 28. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the High Court committed any error in passing the impugned judgment and order. 29. We take note of the following circumstances emerging from the facts on record: a. The cause of death is due to poisoning. The poison detected in the viscera was aluminium phosphide. Aluminium phosphide is used as a fumigant to control the insects and rodents in the foodgrains and fields. It is too much for the convicts to say that the presence of aluminium phosphide in the viscera could be due to the medicines which the deceased used to take for her heart ailment. Such medicines even in high dosage would not lead to formation of aluminium phosphide in the body. This theory which has been put forward could be termed as something very absurd. No particular question in this direction has been put to the expert witness (doctor) while he was in the witness box. In such circumstances, the only inference that can be drawn is that aluminium phosphide either in the liquid form or in the form of tablets was procu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Balvir was living in Mangolpuri in Delhi. The neighbours told Shivcharan that Sudha had died. Then, Balvir came to Ratanpur with the dead body of Sudha. Then, I came to Kotdwar the next day and gave this information in the police station. Then the police came with me to Ratanpur. There the police prepared the inquest report and I was the panch in the inquest proceedings. There was a mark of injury on the neck of my daughter. I was suspicious of her death and so, I asked for a post-mortem. The witness was shown the inquest report Paper No. 9Ka, upon which he admitted his signature at the opinion of the Panches. Thereafter the dead body was sent for the post-mortem. 31. We shall now look into the two letters addressed by the deceased to her father (PW1). Both these letters have been proved through the oral evidence of the PW1 and have been exhibited. The letter dated 20.05.2004, Exh. Ka-1 reads thus: Dated : 20.05.04 Respected mother and father, please accept my pranam with folded hands. At the moment I am alive and pray before the Almighty for wellbeing of your whole family. Father Saheb, the reason behind writing this letter is that I am feeling quite harassed here. There is no fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Anil is coming here and so I request you to send that letter through him. My father, if you wish to see me happy then please send the letter through Anil uncle. I have to stay here only. I am not asking for it under pressure from anyone, I want that letter. If you do not send that letter through Anil uncle then treat that your daughter is no more. I am very well here. Don t think more, just send the letter only, I will wait for the same. Your son-in-law has been behaving properly with me. If he behaves with me properly, then everything is alright and you should not be concerned. You just send the letter through uncle, as I need that letter and there is no benefit in keeping that letter with you. I am alright here; you should feel happy about it. Sonu is fine. Your daughter Sudha. PRINCIPLES OF LAW GOVERNING THE APPLICABILITY OF SECTION 106 OF THE EVIDENCE ACT 33. Section 106 of the Evidence Act, states as under: 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. Illustration (a) When a person does an act with some intention other than that which the character and ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bihar reported in (2021) 10 SCC 725, wherein this Court observed as under: 22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference. 23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence 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. Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that. It means facts that are pre-eminently or exceptionally within his knowledge. (Emphasis supplied) 38. In Trimukh Maroti Kirkan v. State of Maharashtra reported in (2006) 10 SCC 681, this Court was considering a similar case of homicidal death in the confines of the house. The following observations are considered relevant in the facts of the present case: 14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions [1944 AC 315 : (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 enjo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se where he was taking shelter on account of the fear of the accused, and took him away at about 2:30 in the night. The next day in the morning, his mangled body was found lying in the hospital. The trial court convicted the accused under Section 364, read with Section 34 of the IPC, and sentenced them to ten years rigorous imprisonment. The accused preferred an appeal against their conviction before the High Court and the State also filed an appeal challenging the acquittal of the accused for the charge of murder. The accused had not given any explanation as to what happened to the deceased after he was abducted by them. The Sessions Judge, after referring to the law on circumstantial evidence, had observed that there was a missing link in the chain of evidence after the deceased was last seen together with the accused persons, and the discovery of the dead 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed under the said provision and sentenced them to imprisonment for life. 41. Thus, from the aforesaid decisions of this Court, it is evident that the court should apply Section 106 of the Evidence Act in criminal cases with care and caution. It cannot be said that it has no application to criminal cases. The ordinary rule which applies to criminal trials in this country that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the provisions contained in Section 106 of the Evidence Act. 42. Section 106 cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. This section cannot be used to support a conviction unless the prosecution has discharged the onus by proving all the elements 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the interesting discussion para 527 negative averments and para 528 require affirmative counter-evidence at page 438 and foil, of Kenny's outlines of Criminal Law, 17th Edn. 1958. 45. But Section 106 has no application to cases where the fact in question having regard to its nature is such as to be capable of being known not only by the accused but also by others if they happened to be present when it took place. From the illustrations appended to the section, it is clear that an intention not apparent from the character and circumstances of the act must be established as especially within the knowledge of the person whose act is in question and the fact that a person found travelling without a ticket was possessed of a ticket at a stage prior in point of time to his being 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther parties. 48. Section 106 of the Evidence Act would apply to cases where the prosecution could be said to have succeeded in proving facts from which a reasonable inference can be drawn regarding death. 49. The 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. 50. To explain what constitutes a prima facie case to make Section 106 of the Evidence Act applicable, we should refer to the decision of this Court in Mir Mohammad (supra), wherein this Court has observed in paras 36 and 37 respectively as under: 36. In this context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RECORDED UNDER SECTION 313 OF THE CRPC 53. We take notice of the fact that the appellant-convict (husband) has not explained in any manner as to what had actually happened to his wife more particularly when it is not in dispute that the appellant-convict was in company of his wife i.e., deceased. It is important to bear in mind that the deceased died on account of poisoning. The poison which was detected in the viscera was found to be aluminium phosphide . Although, the appellant-convict tried to project a picture that no sooner the deceased fell sick than he immediately took her to the Sanjay Gandhi Hospital at Delhi, yet, there is no evidence worth the name in this regard. The appellant-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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his failure to adduce any explanation, in consonance with the principle of the passage in Deonandan Mishra (supra), which we have already set forth. The matter has been put in this form, with reference to Section 106 of the Evidence Act, in Smith v. R. reported in 1918 A.I.R. Mad. 111, namely, that if the accused is in a position to explain the only alternative theory to his guilt, the absence of explanation could be taken into account. In the present case, taking the proved facts together, we are unable even to speculate about any alternative theory which is compatible with the innocence of the accused. 57. In the aforesaid context, we may also refer 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or any member of his family was shown to have run about or called for help against a fire. 9. Learned Counsel for the appellant contended that Section 106 of the Evidence Act could not be called in aid by the prosecution because that section applies only where a fact relating to the actual commission of the offence is within the special knowledge of the accused, such as the circumstances in which or the intention with which an accused did a particular act alleged to constitute an offence. The language of Section 106 of the Evidence Act does not, in our opinion, warrant putting such a narrow construction upon 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 appl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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