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2004 DIGILAW 1766 (ALL)

KAMAL NARAIN v. STATE OF U P

2004-09-05

K.K.MISRA, M.C.JAIN

body2004
M. C. JAIN, J. Three persons, namely, Kamal Narain, Sharad Kumar alias Bhaiyan and Virendra Kumar alias Vimal Kumar were tried before the Sessions Judge, Lalitpur in Sessions Trial No. 21 of 1980. Out of them, Kamal Narain came to be convicted under Sections 302 and 201 IPC with a sentence of life imprisonment for the former offence and three years rigorous imprisonment for the latter. Both the sentences were ordered to run concurrently. The remaining two accused were acquitted for want of evidence. 2. It was one Brij Behari who was murdered in this incident which took place on 16-10-1978 at about 8 p. m. in Mohalla Chhatrashalpura, P. S. Kotwali, District Lalitpur. The report was made by Radhika Prasad Dixit PW 5 at 9. 30 a. m. on 7-10-1978. 3. The prosecution case as surfacing during the trial was as follows: A few years before the incident, Ram Sahai Tiwari father of the accused Virendra Kumar alias Vimal Kumar and uncle of the other two accused had got fixed the deceased Brij Behari in a teachers job in local Nagar Palika Primary School through his efforts. Thereafter, Brij Behari and his family members residing in the local mohalla Katra Bazar started frequently visiting the house of Ram Sahai Tiwari in Mohalla Chhatrashalpura wherein his son Virendra Kumar alias Vimal Kumar and nephews Sharad Kumar alias Bhaiyan and Kamal Narain also resided. Rumours floated that Brij Behari deceased had developed illicit connections with Km. Sushma, a sister of the accused Kamal Narain, residing with him in the said house of Ram Sahai. On 16- 10-1978, the accused Kamal Narain visited the house of Brij Behari deceased at about 7. 30 p. m. and asked him to accompany him to his house to have Kheer on the eve of Sharad Purnmasi falling that day. Brij Behari accompanied the accused Kamal Narain from his house inspite of the objection of his wife. When Brij Behari reached the house of Ram Sahai Tiwari with Kamal Narain, the latter with the help of the other two accused shot him dead in the Angan of the house. In order to conceal the crime, Brij Behari was removed from the place of incident to District Hospital in a two seater auto rickshaw. 4. A written report in connection with the incident was purported to have been prepared at 8. In order to conceal the crime, Brij Behari was removed from the place of incident to District Hospital in a two seater auto rickshaw. 4. A written report in connection with the incident was purported to have been prepared at 8. 20 p. m. on 16-10-1978 and allegedly given at the local Police Station Kotwali at 10. 45 p. m. by Ashok Kumar Tiwari, a brother of the accused Virendra Kumar alias Vimal Kumar. He stated that his younger brother had informed him that when Brij Behari deceased was putting goods/articles in his house, a gun fell down causing a shot which hit him (Brij Behari ). He (Ashok Kumar Tiwari) had then visited his house to take Brij Behari to the hospital where he was admitted for his treatment. A memo dispatched by Dr. Agarwal from the hospital was also received at the local Police Station Kotwali to inform the police that Brij Behari had been brought dead at the hospital at 8. 15 p. m. on that day (16-10-1978 ). S. I. Abdul Rehman PW 13 rushed to the District Hospital and found the dead-body of the deceased there. He immediately went to the house of the accused straight from the hospital. On reaching there, he took in possession the licensed gun/rifle belonging to the accused Virendra Kumar alias Vimal Kumar with an empty cartridge still in its chamber. He also found some traces of blood mopped/washed from the Angan and a room of the house as well as blood stains on the walls adjoining the Angan. He took some blood in his possession after scratching it from different places to seal the same in a container. 5. Radhika Prasad Dixit PW 5, a brother of the deceased Brij Behari received an anonymous telephone at his residential house in Talbehat at about 11. 30 p. m. on 16-10-1978 asking him to immediately reach Lalitpur. He reached Lalitpur at 1 Oclock in the night to be informed by the wife of Brij Behari about her husband (brother of this witness) having been shot dead inside the house of Ram Sahai Tiwari. Radhika Prasad Dixit also prepared a report in connection with this murder and lodged the same at Police Station Kotwali on 17-10-1978 at 9. 30 a. m. 6. Radhika Prasad Dixit also prepared a report in connection with this murder and lodged the same at Police Station Kotwali on 17-10-1978 at 9. 30 a. m. 6. After inquest proceedings with regard to the dead-body of the deceased in the morning of 17-10- 1978 at the District Hospital, it was sent for post-mortem which was conducted on 17-10-1978 at 4. 30 p. m. by Dr. Har Narain Awasthi PW 2. The deceased was aged about 30 years. The following ante- mortem injuries were found on his person: (1) Wound of entrance (gunshot) lacerated rounded wound of entry 0. 5 cm on left upper part of arm in middle outer aspect about 10 cm below from left shoulder joint. Blackening, scorching and tattooing present, through and through communicating to wound of exist in upper arm described below. (2) Wound of exist (gunshot) communicating with injury No. 1. There is lacerated averted wound in upper part of arm of its inner side, 3 cm below from left arm pit, it is about 2 cm x 1. 75. Clotted blood present. (3) Lacerated wound of second entrance corresponding to injury No. 2 in chest wall left side in mid axillary line 3 cm below from left arm pit, lacerated wound of inverted margin of about 2. 3 cm x deep chest medially downward direction. No tattooing or scorching or blackening seen. 7. On internal examination, left lung was found ruptured and lacerated. Heart was also ruptured and lacerated through and through from left ventricle to its base. One metallic big size pellet and one small (compressed) size had been found inside the body. All the injuries communicated to each other. The cause of death was shock and haemorrhage due to ante-mortem injuries. 8. The investigation was concluded by Ram Kishore Singh S. I. PW 18. 9. The three accused pleaded not guilty and denied all the material evidence implicating them in the occurrence. However, certain facts were admitted. The admitted facts may be set forth here. The accused persons used to reside in the house of Ram Sahai Tiwari in Mohalla Chhatrashalpura from before the date of the incident. Brij Behari deceased and ladies and children of his family used to visit the house of Ram Sahai Tiwari as well as the family members of the latter used to visit the house of former. The accused persons used to reside in the house of Ram Sahai Tiwari in Mohalla Chhatrashalpura from before the date of the incident. Brij Behari deceased and ladies and children of his family used to visit the house of Ram Sahai Tiwari as well as the family members of the latter used to visit the house of former. The accused Kamal Narain had a sister named Sushma aged about 18 years at the time of the incident. Brij Behari deceased had been got employed as a teacher in Nagar Palika Primary School, Civil Lines, Lalitpur by the efforts of Ram Sahai Tiwari about 10 years back. Brij Behari used to reside in Mohalla Katra Bazar, Lalitpur and that he died on reaching the hospital on the eventful day. 10. All the three accused also filed separate identical typed written statements. As per the same, on the day of occurrence accused Virendra Kumar alias Vimal Kumar had gone to his field at 6 a. m. with his 22 bore rifle to kill Saees (wild rodent) as it was damaging his crop. He had loaded the rifle to kill one of the Saees. Since he was to go to Jhansi, he returned back with his weapon at about 10 a. m. on that day, leaving the loaded weapon in his house. His grand-mother Smt. Shyam Kuwar, who later on died on 6-3- 1979, however, picked up such rifle in order to hang it on the nail/peg meant for its hanging, but it fell down with the result that a shot was accidentally fired hitting Brij Behari who was sitting below the said nail. Harish then rushed to the shop of Pathakji where his family members were getting Kheer prepared on the eve of Sharad Purnmasi. On coming to know about the accident, Kamal Narain, Sharad Kumar, Ram Sahai Tiwari and Ashok Kumar rushed to their house to take Brij Behari to the Civil Hospital and got him admitted when he was still alive. He later on died. Since accused Virendra Kumar alias Vimal Kumar was an eye- witness in a murder case against Mahendra Pratap Singh son of Raghunath Singh, the latter and Radhika Prasad Dixit got the instant case falsely launched against the accused. 11. The prosecution in all examined 18 witnesses. Arjun Lala Motwani was examined as DW 1 by the accused. 12. Since accused Virendra Kumar alias Vimal Kumar was an eye- witness in a murder case against Mahendra Pratap Singh son of Raghunath Singh, the latter and Radhika Prasad Dixit got the instant case falsely launched against the accused. 11. The prosecution in all examined 18 witnesses. Arjun Lala Motwani was examined as DW 1 by the accused. 12. We have heard Sri G. S. Chaturvedi, learned Senior Advocate assisted by Sri B. S. Kushwaha and Sri S. B. Kochar on behalf of the accused appellant Kamal Narain and Sri A. K. Dwivedi, learned A. G. A. from the side of the State. 13. The thrust of the submission of the learned Counsel for the accused appellant is that there was no motive on the part of the accused to commit this crime; that the chain of circumstances relied upon by the prosecution to prove him to be guilty was not at all complete and the learned trial Judge simply relied upon surmises and conjectures to convict him. It is also his contention that the learned trial Judge committed grave error in fixing culpability on the head of the accused appellant by relying on part of his statement under Section 313 Cr. P. C. and the one given by him in writing. 14. We shall judge the findings of the trial Judge on the basis of admitted facts and evidence adduced on record, keeping in view the criticism levelled by the learned Counsel for the accused appellant as stated above. Before doing that, we shall note the gist of the deposition of important prosecution witnesses. 15. We should point out that though number of witnesses examined by the prosecution is 18, but the material witnesses are only seven whose testimony is relevant for the right decision of the appeal. We relate it here so that the same may be helpful in appreciation of the subsequent discussion. Dr. R. S. Agarwal PW 3 of the local District Hospital stated that at 8. 15 p. m. on 16-10- 1978 the accused appellant Kamal Narain had brought Brij Behari (deceased) to the Hospital while he was already dead and he had thereupon sent a memo Ext. Ka-2 in this connection to the police station, Kotwali through Ram Prasad, Sweeper. Dr. Har Narain Awasthi PW 2 had conducted post-mortem on the dead-body of the deceased on 17-10-1978 at 4. Ka-2 in this connection to the police station, Kotwali through Ram Prasad, Sweeper. Dr. Har Narain Awasthi PW 2 had conducted post-mortem on the dead-body of the deceased on 17-10-1978 at 4. 30 p. m. The outcome of the post- mortem has already been set out above. As per the testimony of the Doctor, all the gunshot injuries were connected with each other and sufficient to cause instantaneous death at about 8 p. m. on 16-10-1978 and they should have been the result of one gunshot only. Govind Narain Rawat PW 10, a local lawyer, was an LL. B student at the relevant time and he was examined to say that on 16-10-1978 he had prepared a report Ext. Ka-7 at the instance of Ashok Kumar, a son of Ram Sahai Tiwari - cousin of the present accused appellant Kamal Narain. Prakash Chand Lohia PW 11 had been examined to say that at about 8 p. m. on 16-10-1978, he was at the shop of Munna Pathak when Ram Sahai Tiwari came from his house and asked him to fetch a two seater as there had been an incident inside his house. This witness had thereupon taken a two seater of Dhani Ram to the house of Ram Sahai Tiwari and Brij Behari was then carried to the hospital in that vehicle. 16. Ram Kumari PW 7 - widow of the deceased is a very important witness who stated that her husband had secured employment in a local school due to the efforts of Ram Sahai Tiwari a few years before the incident. She also spoke about the visiting terms between the family members of the deceased and those of Ram Sahai Tiwari. It was there in her statement that there were rumours about the illicit connection between her husband and Sushma, unmarried sister aged about 18 years of the accused appellant Kamal Narain. As to the happening of the incident, she deposed that it was Sharad Purnmasi day and the accused Kamal Narain had taken her husband Brij Behari from her house at about 7. 30 p. m. on the pretext that he (deceased) should enjoy Kheer (sweet dish) at his house and that the deceased had then gone with him in spite of her protest. 30 p. m. on the pretext that he (deceased) should enjoy Kheer (sweet dish) at his house and that the deceased had then gone with him in spite of her protest. Thereafter, at about 8 p. m. , she had been informed by a child of the locality that her husband had been shot dead at the house of Tiwari and that the accused Kamal Narain alongwith Ashok Kumar had carried him to the hospital. She then went to the hospital to find her husband to be dead. It is also there in her testimony that the accused or any member of his family did not inform her about the incident. Anand Kumar Dixit PW 8, son of the deceased aged about 13 years is another important witness who has corroborated his mother in connection with the fact that the accused Kamal Narain had taken his father from his house at about 7. 30 p. m. on the excuse of having Kheer at his house on the eve of Sharad Purnmasi. Radhika Prasad PW 5, a brother of deceased, was examined to give out that on receiving an anonymous telephone at Talbehat at about 11. 30 p. m. on 16-10-1978, he had reached Lalitpur at the house of the deceased at about 1 Oclock in the night. He found the family members to be weeping and on his enquiry he was told by Ram Kumari PW 7 (wife of the deceased) that her husband had been shot dead at the house of Ram Sahai Tiwari and the traces of crime had also been removed. She also told him that the accused did not send any information to her about the incident. He then prepared a report Ext. Ka-4 and delivered it at the local Police Station Kotwali the following day. 17. Abdul Rehman S. I. PW 13 had first reached the hospital in the night of 16-10-1978 after receipt of memo of Ext. Ka-2 at Police Station Kotwali to find the dead-body of the deceased. Owing to the non- availability of sufficient light, he could not immediately engage himself in preparation of the inquest report and then straight away went to the house of the accused. He, inter-alia, took in his possession the licensed gun Ext. 8 of Vimal Kumar Tiwari with the empty cartridge Ext. 9 in its barrel. Owing to the non- availability of sufficient light, he could not immediately engage himself in preparation of the inquest report and then straight away went to the house of the accused. He, inter-alia, took in his possession the licensed gun Ext. 8 of Vimal Kumar Tiwari with the empty cartridge Ext. 9 in its barrel. He found some traces of blood in the Angan, a room and on the walls of the house and took the same in his possession after scratching. It was there in his testimony that some stains of blood had been mopped/washed and removed. He found signs of mopping/washing of the blood and of its removal. The inquest proceedings were conducted the following day by him in the District Hospital. Ram Kishore Singh, S. I. PW 18 then took over investigation of the case on 17-10-1978 and recorded the statements of the witnesses connected with the crime and he also inspected the site of occurrence and prepared a site-plan. Ultimately, he submitted the charge-sheet. 18. Mention may also be here made of one Arjun Lala Motwani examined as DW 1, a clerk in the District Hospital, to say that separate registers were being maintained in the hospital in connection with the injured persons/patients visiting the emergency ward and for noting the dead persons/patients brought in hospital. In the emergency register for October 1978, he proved the entry at Serial No. 41487 with regard to Brij Behari who was brought to the hospital at 8. 15 p. m. by Kamal Narain (accused ). 19. The defence also filed certified copy of an F. I. R. on 14-5- 1975 purporting to have been made by Vimal Kumar accused (acquitted) against Ashok Kumar and five others at the local Police Station Kotwali in connection with offences punishable under Section 307 I. P. C. etc. 20. Proceeding further, it is to be kept in mind that this is a case of circumstantial evidence where no body saw the shooting of the deceased. The prosecution side established the guilt of the accused Kamal Narain through circumstantial evidence. We are conscious that in a case of circumstantial nature, there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. We are conscious that in a case of circumstantial nature, there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. The circumstances from which the conclusion of guilt is to be drawn should be fully established and the fact so established should be consistent not 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. This is the established legal position. 21. Now, we wish to address ourselves to the arguments advanced by the learned Counsel for the accused appellant. According to him, the accused Kamal Narain had no motive whatsoever to commit this crime. The motive, indeed, assumes great importance in a case of circumstantial evidence like the present one. Examining this aspect of the matter of motive, we wish to say that there are certain admitted facts of the case. Section 58 of the Indian Evidence Act provides that the facts admitted need not be proved. The admitted facts are these that the accused Kamal Narain is the son of real brother of Ram Sahai Tiwari and had been residing in that house alongwith his other family members since before the occurrence. It was because of the efforts of Ram Sahai Tiwari that the deceased got a teachers job about 10 years back in local Nagar Palika Primary School. The relations of Brij Behari and his family members on the one hand and of Ram Sahai Tiwari and his family members (including children of his brother like accused Kamal Narain) on the other, had been very cordial. The members of the two families used to visit the house of one another since before the occurrence. Kamal Narain accused had a sister named Km. Sushma aged about 18 years at the time of the incident. Brij Behari happened to visit the house of Kamal Narain a little before 8 p. m. on 16-10-1978 and it was in the Angan or near about inside the house of Kamal Narain and others that Brij Behari sustained gunshot injuries at about 8 p. m. on that day. Sushma aged about 18 years at the time of the incident. Brij Behari happened to visit the house of Kamal Narain a little before 8 p. m. on 16-10-1978 and it was in the Angan or near about inside the house of Kamal Narain and others that Brij Behari sustained gunshot injuries at about 8 p. m. on that day. It was thereafter that the accused Kamal Narain (alongwith one or more of his family members) carried Brij Behari injured in a two seater auto rickshaw from his house to the District Hospital where he was declared dead at 8. 15 p. m. A written report in connection with the incident purporting to have been prepared at 8. 20 p. m. on that day by Ashok Kumar (scribed by Govind Narain Rawat PW 10) was delivered at the local Police Station Kotwali at 10. 45 p. m. on that day vide G. D. Ext. Ka-8. It is also not disputed that some blood stained earth had been collected by Abdul Rehman, S. I. PW 13, soon after the occurrence from the spot of the killing of Brij Behari and its adjoining places inside the residential house of the accused Kamal Narain etc. The same was actually found to be stained with human blood by the Chemical Examiner and Serologist vide Ext. Ka-28 and Ka-29. So, these are the admitted and undisputed facts. 22. On the point of motive, the material testimony is of Ram Kumari PW 7-wife of the deceased. On scrutinising her deposition with great care, we are unable to accept the contention of the learned Counsel for the accused-appellant that he had no motive to commit the murder of Brij Behari. On account of Brij Behari securing a job as a teacher due to the efforts of Ram Sahai Tiwari (uncle of the accused Kamal Narain), his relations and of other members of his family had become very cordial with Ram Sahai Tiwari and his family members including the accused Kamal Narain. Brij Behari himself was aged about 30 years at the time of the incident and there is no wonder that he was amorously attracted towards Km. Sushma aged about 18 years, younger sister of the accused Kamal Narain. Brij Behari himself was aged about 30 years at the time of the incident and there is no wonder that he was amorously attracted towards Km. Sushma aged about 18 years, younger sister of the accused Kamal Narain. His frequent visits to the house of the accused and of the members of two families to the houses of each other offered a ready opportunity to him in this regard. It is there in the testimony of Ram Kumari PW 7 that rumour was in currency in the locality concerning the visit of her husband to the house of the accused because of his attraction towards the younger sister of the accused Kamal Narain. She even attempted to prevent him from visiting the house of the accused, but no heed was paid by her husband and he rather used to get annoyed on her objection. Needless to say, the sexual attraction plays strange ways. When instant physical contact is not possible, eyeing ones object of passion by furtive looks is soothing and a source of comfort. It is not material as to whether the sister of the accused Kamal Narain was a consenting party to encourage the lustful advances of her beau by her covert/overt acts, gestures or coquetry. The point of the matter is that the deceased, himself a young man aged about 30 years, was having great attraction towards the young lady, frequently visiting the house of the accused to avail each and every opportunity coming his way to be near the object of his passion. When rumours in this behalf were floating in the locality and had reached the ears of the wife of the deceased, the accused (brother of the Kamal Narain) must have also certainly known about it and it was highly probable that he decided to liquidate the deceased in a planned manner so as to save from defamation his unmarried sister and the family as a finale to the whole episode. We are in agreement with the learned trial Judge that the accused had a very strong motive to commit this crime. 23. The second important circumstance proved by the prosecution against the accused appellant Kamal Narain is that at about 7. 30 p. m. on that day, deceased Brij Behari had been taken by him to his house on the pretext to take the Kheer (sweet dish) on the eve of Sharad Purnmasi. 23. The second important circumstance proved by the prosecution against the accused appellant Kamal Narain is that at about 7. 30 p. m. on that day, deceased Brij Behari had been taken by him to his house on the pretext to take the Kheer (sweet dish) on the eve of Sharad Purnmasi. The testimony of the deceased wife Ram Kumari PW 7 is there in this regard supported by her son Anand Kumar Dixit PW 8. She has stated that she had even tried to prevent her husband from going there, reminding him that he had already taken his meal but her husband did not pay any heed to it and went with the accused Kamal Narain. Obviously, he was being driven by secret desire to be near the object of his passion (unmarried sister of the accused Kamal Narain) and did not want to miss any opportunity coming his way in multiplying or improving his advances to her. We note that the defence did not dispute her statement in her cross-examination through a suggestion to the contrary, though at a later stage in his statement under Section 313 Cr. P. C. , the accused Kamal Narain denied that he had fetched Brij Behari with him from the house of the latter at about 7. 30 p. m. on the pretext of his having Kheer at his house on the eve of Sharad Puranmasi. She and her son Anand Kumar Dixit PW 8 were most natural witnesses of this part of the happening when the deceased was taken by Kamal Narain accused to his own house on the pretext of having Kheer on the eve of Sharad Puranmasi. Admittedly, the relations between the family of the accused and deceased were very cordial and as such this possibility is completely obliterated that the wife and son of the deceased would assert it falsely that the accused had taken the deceased from his house at about 7. 30 p. m. on the fateful day on the pretext that he should have Kheer on the eve of Puranmasi. We agree with the learned trial Judge that these two were reliable witnesses on this aspect that at about 7. 30 p. m. that day the accused Kamal Narain had taken the deceased from his house to have Sharad Puranmasi Bhog at his house. We agree with the learned trial Judge that these two were reliable witnesses on this aspect that at about 7. 30 p. m. that day the accused Kamal Narain had taken the deceased from his house to have Sharad Puranmasi Bhog at his house. One of them, namely, Ram Kumari PW 7 had even objected to his going with the accused but she was over ruled by the victim. 24. The third important circumstance connecting the accused appellant Kamal Narain as author of this crime is that the murder of the deceased was committed inside his house shortly after he had taken him to his house on the pretext of having Sharad Puranmasi Kheer at his house. It is also admitted, as pointed out earlier also, that the deceased had been admitted in the District Hospital by the accused appellant Kamal Narain at 8. 15 p. m. and he had been found dead in the hospital. Now, the only factor to be considered is as to whether the fatal gunshot was caused to the deceased inside the residential house of the accused in consequence of the gun going off accidentally or it was an intentional murder by the accused appellant. A number of clinching circumstances are lined up as surfacing from prosecution evidence that it was intentional killing of the deceased Brij Behari by Kamal Narain accused. It would be apt to relate the same here. The first is that no information about the incident taking place inside the residential house of the accused Kamal Narain was given to any member of his family just after it had occurred which was quite unusual on the part of the accused appellant who had brought the deceased from his house to his own house a little before on the pretext of his having Sharad Puranmasi Kheer at his house. Ram Kumari PW 7 (wife of the deceased) and Anand Kumar Dixit PW 8 (son of the deceased) emphatically stated that no information was given by the accused or any other member of his family of the incident. No cross- examination was directed to challenge their such statement. In case it was an accidental shot which had hit the victim, his family members residing nearby would have immediately been informed. No cross- examination was directed to challenge their such statement. In case it was an accidental shot which had hit the victim, his family members residing nearby would have immediately been informed. Acting with the guilty mind, instead of informing the family members of the deceased immediately after the incident, the accused appellant Kamal Narain schemingly removed him to the hospital to create evidence of innocence in his favour. 25. We also note that the report Ext. Ka-7 by Ashok Kumar cousin of the accused appellant Kamal Narain, though proported to be written as 8. 20 p. m. on 16-10-1978 was presented at the police station at 10. 45 p. m. as per G. D. Ext. Ka-8. Actually, he was in great predicament. The victim was taken by him to the hospital and admitted there at 8. 15 p. m. The same time, the Doctor sent a memo to local Police Station Kotwali. It has come down from the statement of Govind Narain Rawat PW 10 (scribe of the report Ext. Ka-7) that he had written the same in the hospital. The deceased being declared dead at 8. 15 p. m. itself by the Doctor and the memo having been sent in this regard to the local Police Station Kotwali, a false narration of the incident was made in this report Ext. Ka-7 concealing his death and only saying that while putting some articles in the house of the incident, Brij Behari got accidentally shot from the gun and had been removed to the hospital. The report was made by Ashok Kumar but he chose not to appear in the witness box from the side of the accused. This report was exhibited only on 20-5- 1981 when Govind Narain Rawat PW 10 (scribe of the report) was produced before the trial Court. 26. Yet another circumstance against the accused appellant Kamal Narain is that blood marks at the spot of the killing and at nearby places inside the house had been washed/mopped or removed immediately after the incident and before the arrival of Abdul Rehman. Keeping in view the gunshot injuries of the deceased, he would have bled profusely and the blood must have necessarily spattered at the spot. Keeping in view the gunshot injuries of the deceased, he would have bled profusely and the blood must have necessarily spattered at the spot. The floor, walls and place nearby the spot had even been mopped to remove and clean blood stains, but some signs still remained as found by the S. I. Abdul Rehman PW 3 which he scratched and sealed. He recorded these facts in the Fard Ext. Ka-12. It cannot, therefore, be doubted that the blood was washed or cleaned and efforts were made to destroy the evidence from the scene of incident even before the 0 arrival of the Sub-Inspector shortly after the occurrence. There was hardly any necessity for the accused behaving in such way if it was an accidental shot which had killed the deceased. 27. We see no merit in this argument either that the trial Court found the accused appellant to be guilty on illegally relying on the part of his statement under Section 313 Cr. P. C. and his written statement. The learned trial Judge, in our opinion, did not commit any such error. Let us straighten this aspect of the matter. The object and purpose of Section 313 Cr. P. C. is to afford an opportunity to the accused personally to explain any circumstance appearing in the evidence against him at the trial. Apart from inculpatory part, there are many other facts and circumstances emerging from the prosecution evidence at the trial which may be explained by the accused in his statement under Section 313 Cr. P. C. and through a written statement. The settled position of law is that in case of statement of the accused under Section 313 Cr. P. C. and his written statement consist of inculpatory part accompanied by explanatory part, then two parts cannot be separated. Either the two parts have to be accepted as a whole or to be rejected. It is not permissible to rely upon the inculpatory part and ignore the explanatory part. However, apart from the inculpatory and explanatory parts, if there is an admission of the accused in his statement under Section 313 Cr. P. C. in relation to other facts and circumstances, they can be acted upon as his admission within the parameters of Section 58 of the Indian Evidence Act. To say in other words, that part of the statement of the accused under Section 313 Cr. P. C. in relation to other facts and circumstances, they can be acted upon as his admission within the parameters of Section 58 of the Indian Evidence Act. To say in other words, that part of the statement of the accused under Section 313 Cr. P. C. can be taken note of which makes admission in respect of certain facts other than inculpatory part and explanatory parts. In case the contrary view is taken that the entire statement of the accused under Section 313 Cr. P. C. is to be ignored, then the very purpose of such statement would become meaningless. 28. We find that the learned trial Judge has acted within the legal limits and referred to the statement of the accused under Section 313 Cr. P. C. and his written statement only within the parameters settled by law. The argument is wholly misconceived that he fixed up culpability on the head of the accused appellant by simply placing reliance on the parts of statement under Section 313 Cr. P. C. and written statement filed by him. A stand contradictory to the report Ext. Ka-7 was taken by the accused appellant as to the alleged accidental shooting in his written statement which the learned trial Judge has rightly referred to expose his falsity. 29. The accused had taken the deceased Brij Behari from his house at about 7. 30 p. m. that day a little whereafter he was shot in his house at about 8 p. m. and he had admitted him in the hospital at 8. 15 p. m. when he was found to be dead. Circumstances in which Brij Behari was hit by fatal gunshot were within the special knowledge of the accused Kamal Narain and also other family members who were inside the residential house at that time. Sushma, sister of the accused Kamal Narain who was the object of the passion of the deceased and the accuseds mother Savitri had even been interrogated by the Investigating Officer Ram Kishore Singh PW 18 under Section 161 Cr. P. C. Sushma was said to be preparing Kheer at the place marked by letter c close to the sitting place of the deceased marked by letter a in the site-plan Ext. Ka-23 prepared by Ram Kishore Singh PW 18. P. C. Sushma was said to be preparing Kheer at the place marked by letter c close to the sitting place of the deceased marked by letter a in the site-plan Ext. Ka-23 prepared by Ram Kishore Singh PW 18. But strangely, no evidence was adduced in this behalf by the accused appellant Kamal Narain as to how the fatal shot hit the deceased. As per Section 106 of the Indian Evidence Act when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him. The Supreme Court has held in the case of Sucha Singh v. State of Punjab, 2001 (2) JIC 41 (SC) : 2001 SCC (Cri) 717, that though Section 106 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 for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the Court to draw a different inference. 30. In the case of the State of West Bengal v. Mir Mohd. Umar, 2001 (1) JIC 62 (SC) : 2000 (41) ACC (SC) 598, the Supreme Court has held as under: "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 offence would be the major beneficiaries, and the society would be the casualty. " 31. It was for the accused to prove the existence of circumstances which would have gone to reveal that Brij Behari was actually not murdered inside his house but had accidentally been killed on account of a casual gunshot caused under the circumstances as given out through his typed written statement. Kamal Narain did not utter a single word from his mouth in his statement under Section 313 Cr. Kamal Narain did not utter a single word from his mouth in his statement under Section 313 Cr. P. C. even to allege any circumstance which might have casually resulted in a gunshot to hit and kill Brij Behari inside his house. In report Ext. Ka-7, the circumstance given was that while placing certain articles in his house, Brij Behari accidentally received gunshot by the fall of the gun. Contrary to it, a new theory was given in the written statement of the accused Kamal Narain that the gunshot had accidentally been caused by Smt. Shyam Kuwar-his grand-mother (by the fall of the gun) which hit and killed Brij Behari. If it were so, it would have been so mentioned in Ext. Ka-7 by Ashok Kumar who had allegedly been informed of the incident by his younger brother Harish at the shop of Ramanand Pathak where Harish had allegedly come from the house in which the incident had occurred. Typed written statement of the accused appellant was a crude concoction under legal advice in search of a defence to get out of the difficult situation somehow or the other. In accidental killing of the deceased had any substance, there was absolutely no reason for the accused to have remained taciturn and not leading any evidence in this regard. Anyone of the family of the accused appellant present at the time of incident including ladies of the household like Sushma or Savitri Devi (sister and mother respectively of the accused appellant Kamal Narain who were present at the spot) could be examined by defence to discharge the burden lying on the shoulder of the accused Kamal Narain as per Section 106 of the Indian Evidence Act. It appears from the belated report (Ext. Ka-7) of Ashok Kumar that his younger brother Harish was also present inside the house at the time of the occurrence. He could have conveniently been examined by the defence in order to discharge the burden of proof. No attempt was made by the defence to examine any of such natural witnesses of the occurrence. There was absolutely no evidence to show that Brij Behari deceased had been killed by a gunshot accidentally, and not intentionally by the accused appellant (who had a little before brought him from his house to his own house on the pretext of latter part-taking Sharad Puranmasi Kheer ). There was absolutely no evidence to show that Brij Behari deceased had been killed by a gunshot accidentally, and not intentionally by the accused appellant (who had a little before brought him from his house to his own house on the pretext of latter part-taking Sharad Puranmasi Kheer ). The learned trial Judge was perfectly justified in relying on such state of affairs as a circumstance against the accused appellant Kamal Narain that actually he was the shooter of the deceased. In the case of Sucha Singh v. State of Punjab (supra), the Apex Court has held that when the abductors withheld the information which was within their exclusive knowledge as to what happened to the deceased after they were abducted, a presumption in the circumstances of the case can be drawn that the abductors were responsible for murder of the deceased. The said analogy would apply to the present case with full force as the prosecution successfully established that it was he who had brought the deceased from his house to his own house a little before the incident on the pretext of the latter part taking Sharad Puranmasi Kheer at his house and it was also he, too, who admitted him in the hospital a little after the incident at 8. 15 p. m. where he was found to be dead. 32. The defence utterly failed to show that the accused appellant had been implicated due to enmity, it being an admitted fact that the relations between the two families were cordial earlier to the incident. The only thing was that the accused Kamal Narain was harbouring secret grudge against the deceased because of his undesirable lustful advances towards his younger unmarried sister Sushma aged about 18 years. 33. It is a very important factor that report Ext. Ka-7 was belatedly made by Ashok Kumar at the police station at 10. 45 p. m. on 16-10-1978 mentioning the time as 8. 20 p. m. therein, though Brij Behari was already dead and at 8. 15 p. m. and a memo in this behalf had also been sent by the Doctor to the police station. As per the written statement of the accused, Ashok Kumar was one of the persons who had accompanied the accused Kamal Narain to the hospital. Ashok Kumar deliberately mentioned the time thereon as 8. 15 p. m. and a memo in this behalf had also been sent by the Doctor to the police station. As per the written statement of the accused, Ashok Kumar was one of the persons who had accompanied the accused Kamal Narain to the hospital. Ashok Kumar deliberately mentioned the time thereon as 8. 20 p. m. so as to show that Brij Behari was still alive till then. As mentioned earlier, the case of the alleged accidental shot mentioned in this report was different from one taken in the written statement of the accused appellant. Manipulation started right from the beginning in search of one concocted ground or the other so as to save the accused appellant from the consequence of the serious crime committed by him. But as adage goes, two falsehoods fight between themselves. Truth came to be exposed through the circumstances established by the prosecution, despite there being no direct evidence against the accused appellant. The crime was committed by Kamal Narain with premeditation and preparation. It was under such scheme that after committing murder, to feign bona fides he took 3 corpse of Brij Behari to the hospital so that he could raise this plea that he would not have done so if he was the actual murderer. 34. We reach the conclusion that none of the arguments advanced from the side of the accused appellant is sustainable on consideration of the clinching circumstantial evidence brought on record. The prosecution has successfully proved the following circumstances against the accused appellant Kamal Narain: (1) Accused appellant Kamal Narain had very strong motive to commit the murder of Brij Behari deceased. (2) Accused appellant Kamal Narain had taken Brij Behari deceased from his house to his own house a little before murdering him, on the pretext that the latter should have Sharad Puranmasi Kheer at his house. (3) The murder of Brij Behari was committed inside the residential house of the accused appellant Kamal Narain in which he lived with his other family members. (4) No information about the killing of Brij Behari inside the residential house of the accused appellant Kamal Narain was given to any member of his family just after the incident, though the house of the deceased was nearby to that of the place of the incident. (4) No information about the killing of Brij Behari inside the residential house of the accused appellant Kamal Narain was given to any member of his family just after the incident, though the house of the deceased was nearby to that of the place of the incident. (5) The blood marks at the spot of killing of Brij Behari and nearby it inside the house of the accused had been mopped/washed or removed deliberately, immediately after the incident before the arrival of the police. 35. Further, the accused appellant did not establish his contention of the alleged accidental killing of the deceased, a fact which was specially within his knowledge. Even the circumstances regarding the alleged accidental killing were not consistent and were rather contradictory. There could hardly be any occasion for Brij Behari to place/arrange articles or goods in the house of the accused and/or playing/meddling with the loaded gun which also could not have carelessly been kept in the Angan of the house. It is equally a cock and bull story that the loaded gun fell down and accidentally went off, fatally hurting Brij Behari when the grand-mother of the accused namely, Shyam Kumar, was trying to hang it on the nail/peg. So, the two theories of the accidental shot issuing from the gun, in addition of being contradictory to each other, do not have the attraction of logic even when put to test separately and individually. The stark falsity of the defence in this regard is crystal clear. 36. The accused appellant gained nothing by the statement of Arjun Lala Motwani DW 1 and from the copy of the FIR. Ext. Ka-2 dated 14-5-1975 which was wholly irrelevant. 37. Therefore, the circumstances established through circumstantial evidence were consistent only with the hypothesis of the guilt of the accused appellant Kamal Narain. The established circumstances were of conclusive nature and tendency that the accused appellant was the murderer of the deceased Brij Behari. The chain of the circumstantial evidence was complete, not leaving any doubt whatsoever. The crime was committed by him with pre-planning. He has rightly been convicted under Section 302 IPC as well as 201 I. P. C. with a sentence of life imprisonment for the former and three years rigorous imprisonment for the latter. 38. In view of the above discussion, the appeal is dismissed. The accused appellant Kamal Narain is on bail. The crime was committed by him with pre-planning. He has rightly been convicted under Section 302 IPC as well as 201 I. P. C. with a sentence of life imprisonment for the former and three years rigorous imprisonment for the latter. 38. In view of the above discussion, the appeal is dismissed. The accused appellant Kamal Narain is on bail. The Chief Judicial Magistrate, Lalitpur shall cause him to be arrested and lodged in jail to serve out the sentences of life imprisonment and three years rigorous imprisonment passed against him. 39. Judgment be certified to the lower Court for reporting compliance within two months. Appeal dismissed. .