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2019 DIGILAW 2153 (ALL)

Shiv Kumar v. State of U. P.

2019-09-17

MOHD.FAIZ ALAM KHAN, VED PRAKASH VAISH

body2019
JUDGMENT : VED PRAKASH VAISH, J. 1. Heard, Ms. Soniya Mishra, learned Counsel for, the appellants and Sri Umesh Verma, learned Addl. G.A. for the State. 2. The challenge in this appeal is to the judgment dated 15.11.2006 passed, by learned Additional Sessions Judge (F.T.C.-2), Lakhimpur Kheri, in Sessions Trial Case No. 778 of 2001, whereby the appellants were convicted for the offence under sections 302/34 of the Indian Penal Code (hereinafter referred to as "I.P.C.") and both the appellants were sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/- each, in default of payment of fine to further undergo imprisonment for three months. 3. Background facts as projected by the prosecution to fasten guilt on the appellants are as follows:-- 4. Sri Om Prakash Dixit father of the deceased lodged a complaint that his daughter, namely, Smt. Meena was married with appellant No. 1, Shiv Kumar on 28.6.1982; Smt. Meena was turned out of her matrimonial house on 1.4.1984. Smt. Meena then filed a petition for maintenance in June, 1985 and in the written statement of the said petition, the appellant No. 1, Shiv Kumar denied the factum of marriage with Smt. Meena, but vide order dated 19.9.1990, the Court awarded maintenance @ Rs. 200/- per-month; appellant No. 1; Shiv Kumar filed a revision petition against the said order which was dismissed. Thereafter, the appellant No. 1, Shiv Kumar went to the house of complainant and sought pardon and took back Smt. Meena on 20.2.1998; during the said period, complainant used to inquire about the wellbeing of his daughter. On 4.8.1998, the complainant received an information that his daughter, Smt. Meena was unwell and when he went to the house of the appellants, he found the dead body of his daughter in his house and the same appeared to be an old one and stink was coming and there were injuries on the forehead and body had become blue; the complainant lodged a complaint at Police Station Pasangva on 5.8.1998, the same was registered by the Police in General Diary (G.D.) but no First Information Report (hereinafter referred to as "F.I.R.") was registered. Later on, the complainant came to know that his daughter was killed by appellant No. 1, Shiv Kumar and his parents due to demand of dowry and award of maintenance. Later on, the complainant came to know that his daughter was killed by appellant No. 1, Shiv Kumar and his parents due to demand of dowry and award of maintenance. Then, the complainant gave a typed complaint to the Superintendent of Police, Kheri on 23.8.1998, on the basis of said complaint F.I.R. No. 139 of 1998 (Case Crime No. 246/1998) for the offence under section 302 I.P.C. was registered against Shiv Kumar, Ram Sahaya and Smt. Munni Devi on 5.9.1998. After completion of investigation, charge sheet for the offence under section 302 I.P.C. against the appellants/accused, namely, Shiv Kumar and Ram Sahaya was filed. 5. After complying with the provisions of section 207 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") the challan was committed to learned Sessions Judge, Kheri. After hearing arguments on charge, learned Additional Sessions Judge, Kheri found a prima facie case to try both the accused/appellants for the offence under section 302/34 of I.P.C. Accordingly, charge under sections 302/34 I.P.C. was framed on 20.9.2002. The appellants pleaded not guilty to the charge and claimed trial. 6. Vide order dated 24.1.2004, learned Additional Sessions Judge summoned Smt. Munni Devi under section 319 of Cr.P.C. Thereafter, charge under sections 302/34 I.P.C. was framed against Smt. Munni Devi on 24.7.2004, she pleaded not guilty to the charge and claimed trial. 7. During trial, accused Smt. Munni Devi died and the proceedings against her were abated vide order dated 27.8.2004. 8. In order to bring home the guilt of the appellants, the prosecution examined as many as seven witnesses. PW-1 Sri Brijesh Kumar is a witness of inquest report, he has proved panchayatnama (inquest report) as Ex. KA-1. PW-2 Sri Shyam Bihari did not support the case of prosecution and he was declared hostile. PW-3 Sri Rakesh Kumar Dixit is the brother of the deceased. He has deposed that his father, namely, Omprakash Dixit (complainant) died on 4.6.2001. He has proved the complaint lodged by his father as Ex. KA-2. PW-4 Dr. A.K. Tyagi, Radiologist, District Hospital conducted autopsy on the body of the deceased and he has proved the post-mortem report as Ex. KA-3. PW-5 S.I. Dinesh Kumar Singh is the first Investigating Officer, he has deposed that he prepared site plan on pointing out of the complainant which is Ex. KA-5. KA-2. PW-4 Dr. A.K. Tyagi, Radiologist, District Hospital conducted autopsy on the body of the deceased and he has proved the post-mortem report as Ex. KA-3. PW-5 S.I. Dinesh Kumar Singh is the first Investigating Officer, he has deposed that he prepared site plan on pointing out of the complainant which is Ex. KA-5. He deposed about various steps taken by him, he has proved the seizure memo of seal, request letter for conducting post-mortem and other documents as Ex. KA-6 to Ex. KA-10. PW-6 Inspector M.P. Singh is the second Investigating Officer, he has deposed that after transfer of S.I. Dinesh Kumar Singh, investigation was handed over to him, he received the viscera report, on 12.1.1999 accused Shiv Kumar and Ram Sahaya were arrested, after completion of investigation he prepared charge sheet which is Ex. KA-11. PW-7 Constable Rudra Pratap Tripathi recorded F.I.R. and proved copy of F.I.R. as Ex. KA-12 and copy of kayami report as Ex. KA-13. 9. After completion of prosecution evidence, statement of both the accused persons under section 313 of Cr.P.C. was recorded and incriminating evidence was put to them, the accused persons denied the same and claimed that they are innocent. Appellant No. 1, Shiv Kumar stated that the, deceased Smt. Meena had gone to the house of her parents because she did not like the lifestyle of the appellants, her father took her to his house; he is an agriculturist and for that purpose he used to keep pesticide for the safety and maintenance of crops, deceased was using and keeping the pesticide and it may be that she had consumed the same by mixing in the food article by mistake. Appellant No. 2, Ram Sahaya also reiterated the same. The accused persons/appellants chose to lead defence evidence but did not examine any defence witness. On 28.8.2006, the appellants closed their evidence and thereafter filed written submissions. 10. After considering the rival contention of the parties and appreciating the evidence on record, learned Trial Court found the appellants to be guilty-having committed the offence under section 302/34 I.P.C. and sentenced the appellants vide impugned judgment and order dated 15.11.2006. 11. Being aggrieved by the said judgment and order dated 15.11.2006, the appellants have filed the present criminal appeal. 12. 11. Being aggrieved by the said judgment and order dated 15.11.2006, the appellants have filed the present criminal appeal. 12. During the pendency of the appeal, the appellant No. 2, Ram Sahaya S/o. Dori died on 15.08.2016 and the appeal in respect of appellant No. 2, Sri Ram Sahaya was dismissed as abated vide order dated 17.7.2019. SUBMISSIONS ON BEHALF OF THE PARTIES 13. Learned Counsel for the appellants urged that appellant No. 1, Shiv Kumar is the husband of the deceased, Smt. Meena, the marriage between the deceased and appellant No. 1, Shiv Kumar was solemnized on 28.06.1982, no child was born out of the said wedlock and Smt. Meena died on 04.08.1998. The F.I.R. was registered on 05.09.1998 after delay of one month and there is no explanation for the delay. He also submitted that the complainant, Om-prakash Dixit was not examined. 14. Learned Counsel for the appellants submitted that the case of prosecution is based on circumstantial evidence; there is no direct evidence available on record. He further submitted that the case of prosecution is based on the testimonies of Rakesh Kumar Dixit (PW-3) who is brother of the deceased and Dr. A.K. Tyagi (PW-4) who conducted postmortem on the body of the deceased; statement of Sri Rakesh Kumar Dixit cannot be relied upon to convict the appellants. 15. Lastly, learned Counsel for the appellants contended that the appellants are agriculturists, the deceased used to keep pesticide for safety and maintenance of crops and it may be that the deceased had consumed the same by mixing it in food articles by mistake. According to him, the conviction under sections 302/34 of I.P.C. is not proper and the evidence on record attracts section 306 of I.P.C. 16. Per contra, learned Addl. G.A. for the State submitted that the prosecution has been able to prove its case on the basis of oral evidence and also postmortem report. He also submitted that the alleged incident is corroborated by the testimony of Rakesh Kumar Dixit (PW-3) and Dr. A.K. Tyagi. He further submitted that the motive for causing death was that the deceased had no issue and the demand of dowry was not fulfilled by the deceased and her father. 17. Learned Addl. G.A. for the State supported the case of the prosecution and submitted that the testimony of all the prosecution witnesses unerringly pointed towards the guilt of the appellants. 17. Learned Addl. G.A. for the State supported the case of the prosecution and submitted that the testimony of all the prosecution witnesses unerringly pointed towards the guilt of the appellants. 18. Learned Addl. G.A. for the State also submitted that the autopsy on the body of the deceased was got conducted on 6.8.1998, as per the post-mortem report (Ex. KA-3), probable time since death was about 3-5 days. According to him, if the deceased died about 3-5 days before the post-mortem, the appellants should have informed to her parents on the day when she died but no information was given to the parents of the deceased. 19. We have given our anxious thought to the submissions advanced by learned Counsel for the appellants and learned Addl. G.A. for the State and also carefully perused the material available on record. LAW RELATING TO CIRCUMSTANTIAL EVIDENCE 20. Before venturing into rival submissions advanced on behalf of the parties, it is relevant to mention here that there is no eye witness to the incident. The prosecution's case rests on circumstantial evidence. This Court is of the view, when the case of prosecution is based upon the circumstantial evidence, the circumstances should be conclusively proved and point to the guilt of the accused. The circumstances should not be compatible with any hypothesis except with the guilt of the accused. The law in this regard is fairly well settled. The Hon'ble Supreme Court in the case of Sattatiya alias Satish Ranjanna Kartalla v. State of Maharashtra (2008) 3 SCC 210 , in para-10 and 17 made following observations: "10. We have thoughtfully considered the entire matter. It is settled law that an offence can be proved not only by direct evidence but also by circumstantial evidence where there is no direct evidence. The Court can draw an inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the accused. Of course, the circumstances from which an inference as to the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. 17. Of course, the circumstances from which an inference as to the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. 17. At this stage, we also deem it proper to observe that in exercise of power under Article 136 of the Constitution, this Court will be extremely loath to upset the judgment of conviction which is confirmed in appeal. However, if it is found that the appreciation of evidence in a case, which is entirely based on circumstantial evidence, is vitiated by serious errors and on that account miscarriage of justice has been occasioned, then the Court will certainly interfere even with the concurrent findings recorded by the Trial Court and the High Court. In the light of the above, we shall now consider whether in the present case the prosecution succeeded in establishing the chain of circumstances leading to an inescapable conclusion that the appellant had committed the crime." 21. In another case titled as G. Parshwanath v. State of Karnataka 2011 (72) ACC 497 (SC), the Hon'ble Supreme Court made the following observations when considering a case hinging on circumstantial evidence: "23. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the Court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the Court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The Court thereafter has to consider the effect of proved facts." 22. The legal position in case based on circumstantial evidence was summarized by the Hon'ble Supreme Court in Padala Veera Reddy v. State of Andhra Pradesh and others 1990 (27) ACC 32 (SC), as under:-- "(1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." LAST SEEN THEORY 23. We would first like to discuss the evidence of last seen. The prosecution has relied upon the testimonies of PW-1, Brijesh Kumar and PW-3, Rakesh Kumar Dixit as being relevant for this circumstance. Of these, only PW-3, Rakesh Kumar Dixit is the witness who has actually spoken about the deceased being last seen in the company of the appellants at her matrimonial home. First, turning to the evidence of Rakesh Kumar Dixit (PW-3), he has categorically deposed that his father, Om-prakash Dixit received an information from the matrimonial home of the deceased that she is not well and thus, his father visited there and found dead body of the deceased. The picture that emerges from the above discussion is that PW-3, Rakesh Kumar Dixit was consistent that dead body of the deceased was recovered from the house of appellants only. 24. The picture that emerges from the above discussion is that PW-3, Rakesh Kumar Dixit was consistent that dead body of the deceased was recovered from the house of appellants only. 24. The fact that the dead body of the deceased was found 3-5 days later, on 4.8.1998 when the complainant visited to the house of appellants to meet his daughter and that too on the information received by him that his daughter was not well at her matrimonial house, which makes this circumstance of last seen a strong piece of evidence qua the appellants. The legal position in this regard has been explained by the Hon'ble Supreme Court in the case of State of U.P. v. Satish. 2005 (51) ACC 941 (SC). "22. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2." 25. In another case of State of Karna-taka v. Chand Basha 2015 (91) ACC 661 (SC), the Hon'ble Supreme Court explained: "14.....................This Court has time and again laid down the ingredients to be made out by the prosecution to prove the 'last seen together' theory. The Court for the purpose of arriving at a finding as to whether the said offence has been committed or not, may take into consideration the circumstantial evidence. However, while doing so, it must be borne in mind that close proximity between the last seen evidence and death should be clearly established." DEATH OF DECEASED BEING HOMICIDAL IN NATURE 26. The death of the deceased Smt. Meena Devi W/o. Shiv Kumar is homicidal and not natural. The prosecution has examined Dr. However, while doing so, it must be borne in mind that close proximity between the last seen evidence and death should be clearly established." DEATH OF DECEASED BEING HOMICIDAL IN NATURE 26. The death of the deceased Smt. Meena Devi W/o. Shiv Kumar is homicidal and not natural. The prosecution has examined Dr. A.K. Tyagi (PW-4) who conducted post-mortem examination on the body of the deceased on 06th August, 1998, at 3.00 PM in District Hospital, Lakhimpur Kheri. According to the post-mortem report Smt. Meena was aged about 40 years, young lady of good built, R.M. passed off from both upper and lower extremities, PM staring on back-liquefied, skin peeled off at places over the body, abdomen distended, scalp hairs missing, maggots present over the body. The time since death was about 3-5 days. The doctor who conducted post-mortem could not ascertain the cause of death and viscera was preserved. 27. The viscera report (Ex. KA-4) reveals that malathion (organophosphate insecticide) was present in stomach, intestine, liver and kidney. SECTION 106 OF THE INDIAN EVIDENCE ACT, 1872 28. The appellants-accused in their statements under section 313 of Cr.P.C. have simply denied the allegations against them and stated that the pesticide used to remain in their house as deceased used to keep the same and it may be that by mistake she had consumed the same by mixing it in the food, however, neither any suggestion was put to the prosecution witness, Rakesh Kumar Dixit (PW-4) or any other witness regarding the same nor any evidence in defence has been led by the appellants to prove the same. Consequently, this Court is of the view that section 106 of the Indian Evidence Act, 1872 is attracted to the facts of present case. Section 106 of the Indian Evidence Act, 1872 reads as under:-- "Section 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." 29. The law with regard to section 106 of Indian Evidence Act is well settled and some of the relevant judgments are reproduced herein below; (A) In the case of State of W.B. v. Mir Mohammad Omar and others 2000 (41) ACC 598 (SC), the Hon'ble Supreme Court observed as under: "31. The law with regard to section 106 of Indian Evidence Act is well settled and some of the relevant judgments are reproduced herein below; (A) In the case of State of W.B. v. Mir Mohammad Omar and others 2000 (41) ACC 598 (SC), the Hon'ble Supreme Court observed as under: "31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries, and the society would be the casualty. 32. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the Court has to presume the existence of certain facts. Presumption is a course recognised by the law for the Court to rely on in conditions such as this. 33. 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. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process Court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case. 34. When it is proved to the satisfaction of the Court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. in relation to the facts of the case. 34. When it is proved to the satisfaction of the Court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the Court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the Court what else happened to Mahesh at least until he was in their custody. 35....................... 36....................... 37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference." (Emphasis supplied) (B) In the case of Ram Gulam Chaudhary and others v. State of Bihar 2001 (43) ACC 929 (SC), the Hon'ble Supreme Court held as under: "24. Even otherwise, in our view, this is a case where section 106 of the Evidence Act would apply. Krishnanand Chaudhary was brutally assaulted and then a 'chhura-blow was given on the chest. Thus 'chhura'-blow was given after Bijoy Chaudhary had said "he is still alive and should be killed". The appellants then carried away the body. What happened thereafter to Krishnanand Chaudhary is especially within the knowledge of the appellants. The appellants have given no explanation as to what they did after they took away the body. Krishnan-and Chaudhary has not been since seen alive. In the absence of an explanation, and considering the fact that the appellants were suspecting the boy to have kidnapped and killed the child of the family of the appellants, it was for the appellants to have explained what they did with him after they took him away. When the abductors withheld that information from the Court, there is every justification for drawing the inference that they had murdered the boy. When the abductors withheld that information from the Court, there is every justification for drawing the inference that they had murdered the boy. Even though section 106 of the Evidence Act may not be 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 like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The appellants by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference. We, therefore, see no substance in this submission, of Mr. Mishra." (Emphasis supplied) 30. Thus, if an offence takes place inside the privacy of a house as in the present case and in such circumstances where the assailants have all the opportunity to plan and commit the offence 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 strict principle of circumstantial evidence, as notice 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. In the case of Stirland v. Director of Public Prosecution 1944 AC 315, it has been observed that a Judge does not provide over a criminal trial merely to see that no innocent man is punished, but also to see that a guilty man does not escape. 31. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here, it is necessary to keep in mind section 106 of the Indian Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:-(b) a is charged with travelling on Railway without a ticket. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:-(b) a is charged with travelling on Railway without a ticket. The burden of proving that he had a ticket is on him. 32. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of section 106 of the Indian Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed or the deceased died. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer an explanation. 33. 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 strong circumstance which indicates that he is responsible for commission of the crime. 34. A Division Bench of Delhi High Court in the case of Tulsi Ram v. State MANU/DE/0589/2017, has held as under:-- "44. It has been proved by the prosecution that the deceased was found dead in the dwelling house where she was residing with the appellant and was also last seen together with him. It becomes incumbent on him to offer a plausible explanation for the death of his wife." (Emphasis supplied) 35. In a case based on circumstantial evidence where no eye witness account is available, there is another principle of law which must be kept in mind. It becomes incumbent on him to offer a plausible explanation for the death of his wife." (Emphasis supplied) 35. In a case based on circumstantial evidence where no eye witness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to complete it. This view has been taken in a catena of decisions. 36. In the instant case, when admittedly, deceased, Smt. Meena Devi was present in her matrimonial house and the death had occurred inside the house of the appellants only, so presumption under section 106 of the Indian Evidence Act can be raised as the fact of death of deceased was exclusively in the knowledge of the appellants. 37. Moreover, the post-mortem report (Ex. KA-3) reveals that the probable time of death was 3-5 days, the postmortem was conducted on 6.8.1998. This means that the tragic death took place on 2nd or 3rd August, 1998. But the information was given to the father of the deceased on 4.8.1998 i.e., after about 2-3 days of the death. Further, the information was given that the deceased was not well whereas she had already expired before 4.8.1998. 38. The circumstances in the present case are of conclusive nature which fully establishes the guilt of both the appellants. In fact, the chain of evidence is so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of both the appellant-accused. DELAY IN REGISTRATION OF F.I.R. 39. The complainant received an information on 04.08.1998 that his daughter was not well, on receiving said information, her father went to the matrimonial house of his daughter on 5.8.1998 and he found the dead body of his daughter; he made a complaint to Police on 05th August, 1998, an entry was made in General Diary (G.D.) but F.I.R. was not registered. The postmortem was got conducted on 06.08.1998 and the viscera was preserved. Thereafter, the complainant/father of the deceased made a complaint to Superintendent of Police, Kheri on 23.08.1998 and only thereafter F.I.R. under section 302 of I.P.C. was registered against Shiv Kumar, Ram Sahaya and Smt. Munni Devi on 5.9.1998. The postmortem was got conducted on 06.08.1998 and the viscera was preserved. Thereafter, the complainant/father of the deceased made a complaint to Superintendent of Police, Kheri on 23.08.1998 and only thereafter F.I.R. under section 302 of I.P.C. was registered against Shiv Kumar, Ram Sahaya and Smt. Munni Devi on 5.9.1998. Hence, the delay in lodging F.I.R. has been duly explained. NON-EXAMINATION OF COMPLAINANT 40. The Counsel for the appellants contended that complainant, Sri Om-prakash Dixit was not examined by the prosecution. It is relevant to mention here that it has come in the statement of Rakesh Kumar Dixit (PW-3) that Sri Omprakash Dixit died on 4.6.2001. Thus, the same is of no relevance. CONCLUSION 41. On an assessment of the entire gamut of the evidence on record, we find that the prosecution has been able to establish the following circumstances:-- (i) The deceased was married with appellant No. 1, Shiv Kumar on 28.6.1982, no child was born from the said wedlock and she was not having good relations with her husband as she was subjected to cruelty in lieu of demand of dowry; (ii) the deceased, Meena instituted proceedings for maintenance against appellant No. 1, the appellant No. 1 denied the relationship of husband and wife in the said proceedings, a sum of Rs. 200/- per month was awarded as maintenance vide order dated 19.09.1990; (iii) the appellant No. 1 filed a revision petition against the said order which was dismissed and the appellant No. 1 had to pay arrears of maintenance to the tune of Rs. 200/- per month was awarded as maintenance vide order dated 19.09.1990; (iii) the appellant No. 1 filed a revision petition against the said order which was dismissed and the appellant No. 1 had to pay arrears of maintenance to the tune of Rs. 16,000/-; (iv) the appellant No. 1 took the deceased from her parental house on 20.2.1998, to avoid payment of maintenance; (v) on 4.8.1998, an information was given to the house of deceased's parents that she (Meena) was ill; (vi) when the father of the deceased, Om Prakash Dixit (now deceased) reached at the matrimonial house, he found the dead body of deceased, body had become blue, foul smell was coming from the body of deceased, maggots were present; (vii) it appeared that the body was old; (viii) the complainant immediately informed to the police; (ix) as per post-mortem report maggots were found over the body, doctor A.K. Tyagi (PW-4) opined that the deceased might have died about 3-5 days prior to the postmortem; (x) no information regarding death of the deceased was given to her father or brother and death was concealed for about three days; (xi) appellants/accused persons concealed the death of deceased; (xii) the body was found in the house of the appellants and they all were living in the same house; (xiii) in viscera report malathion (organophosphate insecticide) was found, which is a poison; (xiv) no acceptable explanation has been given by the appellants as to how the deceased, Meena died; (xv) the appellants in their statement under section 313 of Cr.P.C. simply stated that the deceased might have consumed poison by mistake but no such defence was taken in the cross-examination of prosecution witnesses. 42. In view of the above circumstances, we are of the considered opinion that circumstances in the present case are of conclusive nature, read with section 106 of the Indian Evidence Act, 1872 fully establishes the guilt of the appellants-accused persons. In fact, the chain of evidence is so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of both the appellants. The aforesaid circumstances show that the act of murder had been committed by the appellants only. 43. Consequently, the present appeal being bereft of merit is dismissed. 44. The Trial Court record along with a copy of this judgment be sent to Trial Court forthwith. 45. The aforesaid circumstances show that the act of murder had been committed by the appellants only. 43. Consequently, the present appeal being bereft of merit is dismissed. 44. The Trial Court record along with a copy of this judgment be sent to Trial Court forthwith. 45. The appellant, Shiv Kumar is in judicial custody. A copy of this judgment be also sent to the appellants through Superintendent Jail concerned immediately.