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2020 DIGILAW 80 (RAJ)

Shambhu Lal v. State of Rajasthan

2020-01-08

ABHAY CHATURVEDI, SANDEEP MEHTA

body2020
JUDGMENT : Sandeep Mehta, J. 1. The appellant Shambhu Lal has been convicted and sentenced as below vide judgment dated 22.07.2006 passed by the learned Additional Sessions Judge, Nimbahera, Camp Badi Sadari, Chittorgarh in Sessions Case No. 96/2005: Offences Sentences Fine Fine Default sentences Section 302 IPC Life Imprisonment Rs. 2,000/- 03 Months' R.I. 2. Being aggrieved of his conviction and sentences, the appellant has preferred this appeal under Section 374(2) Cr.P.C. 3. Brief facts relevant and essential for disposal of the appeal are noted hereinbelow:- Chunni Lal (PW-1) lodged a written report (Ex. P/1) at the Police Station Nikumb alleging inter alia that his daughter had been married to the appellant Shambhu Lal about 25 years ago. A son named Raju, born from their wedlock, was presently 18 years old and used to live with the informant. Shambhu Lal was in a habit of quarrelling with Smt. Leela after consuming liquor. About a month ago, Shambhu Lal assaulted Leela on which, she jumped into the neighbour's house and somehow saved herself. Thereafter, she came and started living with the informant. She stayed at the maternal home for about 15 days. On intervention by the members of the community and on the assurance given by Shambhu Lal that he would not quarrel with Leela in future, she was sent back to the matrimonial home. One Manoj son of Sohanlal, resident of Chandakheri, approached the complainant on 14.10.2005 and informed him that Leela had passed away. On this, the complainant and his family members went to Leela's matrimonial home and saw her lying dead with froth coming out from her nose and mouth. The complainant alleged that the death of Leela had occurred under suspicious circumstances. Upon this, proceedings under Section 174 Cr.P.C. were initiated. The Panchayatnama of Leela's deadbody was prepared whereafter, postmortem was carried out thereupon. The postmortem report (Ex. P/11) was received as per which, the cornua of hyoid bone was fractured. The cornua of thyroid cartilage was fractured. The 4th and 5th cervical vertebrae were also fractured and the spinal cord was compressed at various places. The cause of death of Leela was opined to asphyxia due to throttling. The deadbody of Smt. Leela was handed over to Chunni Lal for cremation. On 17.10.2005, the Investigating Officer proceeded to register an FIR No. 94/2005 (Ex. The 4th and 5th cervical vertebrae were also fractured and the spinal cord was compressed at various places. The cause of death of Leela was opined to asphyxia due to throttling. The deadbody of Smt. Leela was handed over to Chunni Lal for cremation. On 17.10.2005, the Investigating Officer proceeded to register an FIR No. 94/2005 (Ex. P/13) for the offence under Section 302 IPC against the accused appellant who was arrested on 18.10.2005. Relevant steps of investigation were undertaken and thereafter, a charge-sheet came to be filed against the appellant for the offence under Section 302 IPC in the Court of Magistrate concerned. Since the offence was exclusively triable by the Court of Sessions, the case was committed to the Court of the Additional Sessions Judge, Nimbahera for trial, who framed charge against the accused appellant for the said offence to which, the appellant pleaded not guilty and claimed trial. The prosecution examined as many as 16 witnesses in support of its case and exhibited 38 documents. Upon being questioned under Section 313 Cr.P.C., the accused appellant denied the prosecution allegations and claimed that Leela was weak of mind and had died by consuming poison. Two witnesses DW-1 Punaji and DW-2 Mangi Lal were examined in defence and three documents were exhibited. Upon hearing the arguments advanced by the prosecution and the defence and, appreciating the evidence available on record, the learned trial judge, proceeded to convict and sentence the appellant as above. Hence this appeal. 4. Shri Ajay Vyas, learned counsel representing the appellant, vehemently and fervently urged that the entire prosecution case is false and fabricated. There is no direct evidence on the record of the case to prove beyond all manner of doubt that the appellant murdered Smt. Leela. While the postmortem of Smt. Leela was carried out on the dead body of Leela, poisoning like symptoms were suspected but no viscera examination report was sought for by the investigating officer. He urged that there is no direct evidence to connect the appellant with the crime and no significant motive has been attributed to him for murdering Smt. Leela. On these grounds, he urges that the appellant deserves to be acquitted of the charge. 5. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellant's counsel. He urged that there is no direct evidence to connect the appellant with the crime and no significant motive has been attributed to him for murdering Smt. Leela. On these grounds, he urges that the appellant deserves to be acquitted of the charge. 5. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellant's counsel. He urged that the appellant and Smt. Leela were the only occupants of the house where she was throttled to death and where from her deadbody was recovered. The appellant did not deny his presence in the house on the fateful day. He took a patently false defence that Smt. Leela died by poisoning and thus, adverse inference deserves to be drawn against the appellant. He drew the Court's attention to the statements of the defence witnesses DW-1 Punaji and DW-2 Mangi Lal who have both, stated that Shambhu Lal was present in the house and Leela was crying because she was suffering from abdominal cramps. Both of them, advised Shambhu Lal that he should take Leela to the doctor. Shambhu Lal went to Sangariya and brought a doctor who declared that Leela was dead. He urged that from the statements of these two defence witnesses, who were examined in defence, it is clearly established that the appellant was present in the house when Leela expired. He thus, submitted that the burden shifted on to the appellant to explain as to how Smt. Leela received the injuries by throttling when none other than she and the appellant were present in the house. Failure of the appellant to offer any plausible explanation in this regard and rather the false defence taken by him, deserves drawing of an adverse inference against him that he and none else was the murderer. On these grounds, learned Public Prosecutor implored the Court to dismiss the appeal and affirm the impugned judgment. 6. We have given our thoughtful consideration to the submissions advanced at Bar and have gone through the material available on record. 7. On these grounds, learned Public Prosecutor implored the Court to dismiss the appeal and affirm the impugned judgment. 6. We have given our thoughtful consideration to the submissions advanced at Bar and have gone through the material available on record. 7. Few facts are admitted on the face of the record: (i) that the deceased Smt. Leela was married to the appellant about 25 years ago; (ii) that the deceased Leela and the appellant were the only two occupants of the house on 14.10.2005 where the lady was found dead under unnatural circumstances; (iii) from the evidence of PW-1 Chunni Lal (father of the deceased and PW-16 Raju (son of the deceased and the appellant), it is duly established that the appellant and Smt. Leela were not on good terms and the appellant used to maltreat; (iv) from the evidence of Dr. Gyanmal (PW-10), who conducted postmortem upon the deadbody of Smt. Leela and issued the postmortem report (Ex. P/11), it is duly established that Smt. Leela was throttled/strangulated to death. The following prominent signs were noted by the doctor in the postmortem report. 1. Fracture of cervical vertebrae No. 4 & 5 associated with depression of the spinal cord and fracture of hyoid bone and thyroid cartilage; 2. Rupture of the rings of the wind pipe 3. Cyanosis was present on the face and extremities of the body. These marked symptoms noticeable from the medical evidence are sufficient to satisfy us that the deceased was brutally strangulated. 8. The prosecution case is not based on direct evidence. Considered in light of the admitted position that the appellant and the deceased Smt. Leela were the only occupants of the house where, the dead body was found, by virtue of Section 106 of the Evidence Act, the burden would definitely shift on to the appellant to explain as to how his wife was strangulated to death in the privacy of their house. The explanation offered by the appellant in his statement under Section 313 Cr.P.C. that Smt. Leela died because of consuming poison is totally false and fabricated. The two defence witnesses, referred to supra, have categorically stated about the presence of the appellant with the deceased on the fateful day. The explanation offered by the appellant in his statement under Section 313 Cr.P.C. that Smt. Leela died because of consuming poison is totally false and fabricated. The two defence witnesses, referred to supra, have categorically stated about the presence of the appellant with the deceased on the fateful day. Thus, as per reverse burden of proof provided by Section 106 of the Evidence Act, the onus would definitely shift on to the appellant to offer a plausible explanation regarding the manner in which, Smt. Leela died. As noted above, rather than offering a plausible explanation, the appellant has given a false one when put to questioning under Section 313 Cr.P.C. and in his defence evidence. 9. The scenario existing in the case at hand is squarely covered by that considered by Hon'ble Supreme Court in the case of Trimukh Maroti Kirkan vs. State of Maharashtra, reported in (2006)10 SCC 681 wherein, Hon'ble the Apex Court observed as below:- "12. 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 Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab vs. Karnail Singh (2003) 11 SCC 271 ). 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 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. Here it is necessary to keep in mind Section 106 of the 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 traveling on a railway without ticket. The burden of proving that he had a ticket is on him." 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 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. 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 any explanation. 13. A somewhat similar question was examined by this Court in connection with Section 167 and 178-A of the Sea Customs Act in Collector of Customs, Madras & Ors. v. D. Bhoormull AIR 1974 SC 859 and it will be apt to reproduce paras 30 to 32 of the reports which are as under: 30. It cannot be disputed that in proceedings for imposing penalties under Clause (8) of Section 167 to which Section 178-A does not apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, of universal application. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and as Prof. Brett felicitously puts it - ''all exactness is a fake". El Dorado of absolute proof being unattainable, the law, accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent man's estimate as to the probabilities of the case. 31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered - to use the words of Lord Mansfield in Blatch v. Archer (1774) 1 Cowp. 63 at p. 65 "according to the proof which it was in the power of one side to prove, and in the power of the other to have contradicted". Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden. 32. Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. 32. Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. On the principle underlying Section 106, Evidence Act, the burden to establish those facts is cast on the person concerned; and if he falls to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person, and in the result prove him guilty. As pointed out by Best in 'Law of Evidence', (12th Edn. Article 320, page 291), the "presumption of innocence is, no doubt, presumptio juris; but every day's practice shows that it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of stolen property", though the latter is only a presumption of fact. Thus the burden on the prosecution or the Department may be considerably lightened even by such presumption of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that burden to discharge which very slight evidence may suffice. (Emphasis supplied) The aforesaid principle has been approved and followed in Balram Prasad Agrawal v. State of Bihar & Ors. AIR 1997 SC 1830 where a married woman had committed suicide on account of ill- treatment meted out to her by her husband and in-laws on account of demand of dowry and being issueless. 14. The question of burden of proof where some facts are within the personal knowledge of the accused was examined in State of West Bengal v. Mir Mohammad Omar & Ors. (2000) 8 SCC 382 . In this case the assailants forcibly dragged the deceased Mahesh from the house where he was taking shelter on account of the fear of the accused and took him away at about 2.30 in the night. Next day in the morning his mangled body was found lying in the hospital. (2000) 8 SCC 382 . In this case the assailants forcibly dragged the deceased Mahesh from the house where he was taking shelter on account of the fear of the accused and took him away at about 2.30 in the night. 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 IPC and sentenced them to 10 years RI. 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 murder charge. The accused had not given any explanation as to what happened to Mahesh after he was abducted by them. The learned 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 had 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 principle in paras 31 to 34 of the reports: "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 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 reaches 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 the 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. 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." Applying the aforesaid principle, this Court while maintaining the conviction under Section 364 read with Section 34 IPC reversed the order of acquittal under Section 302 read with Section 34 IPC and convicted the accused under the said provision and sentenced them to imprisonment for life. 15. In Ram Gulam Chaudhary & Ors. v. State of Bihar (2001) 8 SCC 311 , the accused after brutally assaulting a boy carried him away and thereafter the boy was not seen alive nor his body was found. The accused, however, offered no explanation as to what they did after they took away the boy. It was held that for the absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they have murdered the boy. The accused, however, offered no explanation as to what they did after they took away the boy. It was held that for the absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they have murdered the boy. It was further observed that 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 accused by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference. 16. 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 make it complete. This view has been taken in a catena of decisions of this Court. [See State of Tamil Nadu v. Rajendran (1999) 8 SCC 679 (para 6); State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 (para 40); State of Maharashtra v. Suresh (2000) 1 SCC 471 (para 27); Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731 (para 15) and Gulab Chand v. State of M.P. (1995) 3 SCC 574 (para 4)]. 17. 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 placed in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v. State of Himachal Pradesh AIR 1972 SC 2077 it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with 'khokhri' and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra (1992) 3 SCC 106 the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. In State of Tamil Nadu v. Rajendran (1999) 8 SCC 679 the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime. 18. In the earlier part of the judgment we have given a resume of the evidence which is available on record. The appellant was plying a tempo in order to earn his livelihood. It is fully established that the deceased Revata was being ill-treated and harassed on account of non- fulfillment of demand of Rs. 25,000/- which the appellant wanted for purchasing a tempo. The deceased Revata was often beaten and was sometimes not given food. After Revata had been murdered, information was sent to her parents that she had died on account of snake bite, which was reiterated when they reached the house of the appellant in village Kikki. In fact, everyone in the village had been told that Revata had died on account of snake bite and the Police Patil, believing the said information to be true, had lodged an Accidental Death Report at the police station. The medical evidence, however, showed that she had died on account of asphyxia due to strangulation. The body of the deceased was purposely placed in a sitting posture with her back taking support of the wall so that no one may suspect that she had actually been killed as a result of strangulation and may believe the version of snake bite given by the appellant and his parents. The appellant in his statement under Section 313 Cr.P.C. did not offer any explanation as to how she received the injuries which were found on her body. Recovery of some articles of the deceased was made at the pointing out of the appellant. The circumstances enumerated above unerringly point to the guilt of the accused and they are inconsistent with his innocence." 10. Recovery of some articles of the deceased was made at the pointing out of the appellant. The circumstances enumerated above unerringly point to the guilt of the accused and they are inconsistent with his innocence." 10. In view of the discussion made herein above, we are of the firm opinion that the prosecution has duly established the fact that the appellant was only person present with the deceased in the privacy of their house when she was murdered. The prosecution evidence is also sufficient to satisfy the Court that the appellant used to treat the deceased with physical as well as mental cruelty and that owing to this cruel behaviour, just a month before the incident, the deceased was compelled to go and live at her father's house. She was counseled and had come back to the matrimonial home just 15 days before the incident. The appellant and the deceased were the only occupants of the house where the deceased Smt. Leela was found murdered with pronounced symptoms of strangulation noticeable from the medical evidence. The appellant, who by virtue of Section 106 of the Evidence Act, was under a legal obligation to offer an explanation regarding the cause of death of his wife, offered a false one what to talk of a plausible explanation. 11. In this background, we have no hesitation in holding that the learned trial court was perfectly justified in convicting and sentencing the appellant as above for the charge of murdering of his own wife. The impugned judgment dated 22.07.2006 passed by the learned Additional Sessions Judge, Nimbahera, Camp Badi Sadari, Chittorgarh does not suffer from any infirmity and illegality warranting interference therein. 12. Thus, the appeal lacks merit and is dismissed as such. 13. Record be returned to the trial court forthwith.