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2020 DIGILAW 809 (ALL)

Ram Dev v. State of U. P.

2020-04-27

DEVENDRA KUMAR UPADHYAYA, MOHD.FAIZ ALAM KHAN

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JUDGMENT : Heard Sri Shahid Akhtar, learned Amicus Curiae and learned AGA for the State. 1. This criminal appeal has been preferred by appellant- Ram Dev against the judgment and order dated 15.9.2016 passed by Special Judge Prevention of Corruption Act/ Additional District & Sessions Judge, Court No.2, Lucknow, in Sessions Trial No. 75 of 2013, ‘State vs. Ram Dev’ arising out of Case Crime No. 247 of 2012, under Section 302 IPC, Police Station Mohan Lal Ganj, District Lucknow, whereby the appellant has been convicted under Section 302 IPC and has been sentenced with life imprisonment and fine of Rs. 50,000/- and to further under go imprisonment of three years in default of payment of fine. 2. Brief facts necessary for the disposal of this case are that on 15.6.2012 at 8.45 A.M. a written information was given at Police Station Mohan Lal Ganj by the appellant that his wife has committed suicide by burning herself. Acting on this information, S.I. Suresh Chandra Mishra along with S.H.O. Sanjay Kumar Pandey arrived at the spot and collected the remains of the deceased which were found in an iron box and prepared inquest report (Ext. Ka-4) of the same and also prepared necessary papers i.e. Chitthi R.I. (Ext. Ka-10-A), photo lash (Ext. Ka-11), the sample seal (Ext. Ka-12), Chitthi C.M.O. (Ext. 2 Ka-13) and took the photographs of the remains (material Exts. Ka-1 to Ka-6) and sent the same for postmortem. 3. The postmortem of the remains of the deceased was performed by Dr. R.C. Gopal on 15.6.2012 at 2.00 P.M and a report (Ext. Ka-3) was also prepared. The cause and time of death of the deceased could not be ascertained as the remains were consisting of burnt pieces of bones and ashes. Therefore the remains were sent for forensic examination and opinion of State Medico-legal Expert. Joint Director Medico-legal Expert U.P. sent its report (Ext. Ka-8) vide letter dated 25.8.2018 to the Circle Officer, Mohan Lal Ganj, wherein femur bone pieces were found to be of human being but due to the fact that remains contained only small pieces of bones, the age and sex of the deceased as well as the cause of death could not be ascertained. 4. Ka-8) vide letter dated 25.8.2018 to the Circle Officer, Mohan Lal Ganj, wherein femur bone pieces were found to be of human being but due to the fact that remains contained only small pieces of bones, the age and sex of the deceased as well as the cause of death could not be ascertained. 4. An application was also given by one Neeraj (son of deceased) to the S.H.O. Mohan Lal Ganj on 9.7.2012 at 16.05 hours, stating therein that his mother Smt. Manju was living with appellant for the last 8 years. She was owner of a vehicle, namely, ‘Tata Magic’. On 17.6.2012 he was informed by his sister Nirmala that their mother, namely, Smt. Manju has been done to death by the appellant- Ram Sagar, his wife Smt. Guddi and their sons by putting her on fire. When he arrived from Ghaziabad he came to know that his mother has been burnt by confining her in an iron box in the night of 15.6.2012. 5. On the basis of above written information (Ext. Ka-1), Chik FIR (Ext. Ka-6) was prepared and case Crime No. 247 of 2012, under Section 302 IPC was registered at Police Station Mohan Lal Ganj, substance of which was also entered in the general diary no. 33, time 16.05 dated 9.7.2012 (Ext. Ka-5). The investigation of the case was entrusted to S.H.O. Shri Vaish Narayan Dubey, who after recording the statement of various witnesses and also keeping in view the evidence of forensic lab submitted the charge sheet (Ext. Ka-10) against appellant. 6. The case being exclusively triable by the court of sessions was committed to the Sessions Court and charges under Section 302 IPC were framed against the appellant, who denied the same and claimed trial. 7. Prosecution in order to prove its case against the appellant produced following documentary evidence:- (I) Written application (Ext. Ka-1) (II) Written application dated 12.8.2012 (Ext. Ka-2) (III) Postmortem report (Ext. Ka-3) (IV) Inquest report (Ext. Ka-4) (V) G.D. Kayami (Ext. Ka-5) (VI) Chik FIR (Ext. Ka-6) (VII) Site Plan (Ext. Ka-7) (VIII) Report dated 25.8.2012 by Joint Director State Medico-legal Expert (Ext. Ka-8) (IX) Charge sheet (Ext. Ka-10) (X) Chitthi R.I. (Ext. Ka-10) (XI) Photo Lash (Ext. Ka-11) (XII) Sample of seal (Ext. Ka-12) (XIII) Chitthi C.M.O (Ext. Ka-13) 8. Ka-3) (IV) Inquest report (Ext. Ka-4) (V) G.D. Kayami (Ext. Ka-5) (VI) Chik FIR (Ext. Ka-6) (VII) Site Plan (Ext. Ka-7) (VIII) Report dated 25.8.2012 by Joint Director State Medico-legal Expert (Ext. Ka-8) (IX) Charge sheet (Ext. Ka-10) (X) Chitthi R.I. (Ext. Ka-10) (XI) Photo Lash (Ext. Ka-11) (XII) Sample of seal (Ext. Ka-12) (XIII) Chitthi C.M.O (Ext. Ka-13) 8. Apart from the above mentioned documentary evidence prosecution also testified following witnesses in support of its case:- (I) P.W.1- Neeraj Kumar. (II) P.W.2-Smt. Nirmala. (III) P.W.3- Mohd. Ishaque. (IV) P.W.4- Dr. R.C. Gopal (who conducted postmortem) (V) P.W.5- Yadunath Yadav (VI) P.W.6- Constable Sanjay Kumar Tiwari (Scribe of Chik FIR and General Diary) (VII) P.W.7- S.S.I. Narad Muni Singh (II Investigating Officer) (VIII) Inspector Yogendra Singh, who arrested the appellant. (IX) P.W.9- Inspector Suresh Chandra Mishra ( Ist Investigating Officer) (X) P.W.10- Inspector Shiv Narayan Dubey (III-Investigating Officer). 9. After closure of the evidence of the prosecution, statement of appellant- Ram Dev was recorded under Section 313 Cr.P.C. wherein he denied the prosecution evidence and claimed that he has been falsely implicated and has not committed any offence. The appellant in his defence has also produced D.W.1- Shri Rakesh Kumar and D.W.2- Tinna as well as D.W.3- Ram Sagar. 10. The trial court after appreciating the evidence available on record came to the conclusion that the prosecution has been able to prove its case beyond reasonable doubt and therefore convicted the appellant for the offence under Section 302 IPC and accordingly sentenced him in the manner mentioned in first paragraph of this judgment. 11. Learned counsel for the appellant while pressing the grounds of appeal submits that the trial court has committed manifest error in appreciating the evidence available on record and has convicted the appellant on unreliable testimony of prosecution witnesses and therefore has not appreciated the evidence in right perspective. It is further submitted that identification of dead body has not been done either at the stage of investigation or at the stage of trial and it is not established that the remains which have been allegedly found in the iron box were of deceased- Smt. Manju. It is further submitted that identification of dead body has not been done either at the stage of investigation or at the stage of trial and it is not established that the remains which have been allegedly found in the iron box were of deceased- Smt. Manju. It is further submitted that the evidence of P.W.1- Neeraj Kumar and P.W.2- Smt. Nirmala is hear-say as they were not the eye witnesses and one Dheeraj who stated to have given information to them has also not been produced as a witness, therefore the chain of circumstances is not complete against the appellant. It is further submitted that the appellant himself informed the police about the suicide committed by the deceased- Manju and it was evident and proved on record that at the time of incident the appellant was not present in his house therefore there was no burden on appellant to explain the circumstances under which the deceased- Manju had died as required by Section 106 of the Indian Evidence Act. It has further been submitted that it has come in the evidence available on record that the deceased Manju had earlier made attempts to commit suicide and therefore keeping in view the alibi of the appellant there was no occasion for the trial court to convict the appellant and therefore a grave illegality has been committed by the trial court in convicting the appellant. 12. Learned AGA on the other hand submits that the trial court has not committed any illegality in convicting the appellant for committing the murder of his wife Smt. Manju. It is further submitted that the instant case was purely based on circumstantial evidence and all the circumstances proved against the appellant were pointing towards the guilt of the appellant and keeping in view the provision of Section 106 of the Indian Evidence Act the facts which were specifically in the knowledge of the appellant should have been explained by him but the appellant has put forth wrong explanation and therefore the wrong explanation put forth by him will provide any missing link in the chain of circumstances and thus the trial court has not committed any illegality in convicting the appellant for the offence of murdering his own wife. 13. We have heard the submissions of learned counsel for the parties. 13. We have heard the submissions of learned counsel for the parties. Perusal of the evidence of prosecution witnesses would reveal that P.W.1- Neeraj Kumar is the son of the deceased- Manju who in his statement, has stated that his mother was residing with appellant and was the owner of a vehicle ‘Tata Magic’. He used to live in Gaziabad and was in private service. On 17.6.2012 his sister Nirmala informed him that their mother (Smt. Manju) had been burnt to death by appellant, Ram Sagar and wife of Ram Dev i.e. Guddi by pouring kerosene oil on her. When he arrived at the village of his mother he was informed by his sister that appellant has caused death of his mother by putting her on fire by confining in a box. It is further stated by him that one Pradeep, who is their relative and is a resident of village Bhasanda had informed his sister that he had seen an iron box burning in the house of the appellant and he has every doubt that the deceased had been done to death by appellant. This witness has also stated that he submitted an application in the Police Station Mohan Lal Ganj on 18.6.2012 (Ext. Ka-1) and thereafter submitted another application on 12.8.2012( Ext. Ka-2). He proved the FIR dated 09.07.2012 as Ex. Ka-1. 14. P.W.2- Smt. Nirmala who is the daughter of deceased- Manju has stated in her evidence that on 15.6.2012 at about 7.00 A.M. when she was at her home her nephew Pradeep telephonic-ally informed her that her mother (Smt. Manju) has been done to death by appellant by putting her on fire after pouring kerosene. She immediately went to village Bhasanda where she was informed by the villagers that her mother was living with appellant as concubine and a day before the incident at about 5.00 P.M. appellant was seen fighting with the deceased and was beating her and she has been done to death by him. She has also stated to have seen the dead body of her mother contained in an iron box. P.W.3- Mohd. Ishaque has stated that in the intervening night on 14/15.6.2012 at about 4.00 A.M. appellant came to him and informed that his house had caught fire. He immediately went with him to his house and found that his house was burning. P.W.3- Mohd. Ishaque has stated that in the intervening night on 14/15.6.2012 at about 4.00 A.M. appellant came to him and informed that his house had caught fire. He immediately went with him to his house and found that his house was burning. Appellant told him that his wife was not in the house and advised him to inform the police and also to call the fire-brigade. The Pradhan of the village informed the police whereon the fire-brigade and the police personnel came and put off the fire. Thereafter burnt dead body of the deceased- Manju was found in an iron box in the shape of bones and ashes which was taken in the custody, by the police. It has been specifically stated by him that the remains of the body of Smt. Manju Devi were recovered from the iron box from the burnt house of the appellant and also that Ram Dev was not having any bad blood and did not quarrel with his wife. P.W.4- Dr. R.C. Gopal has performed postmortem on the remains of the deceased and has stated that on 15.6.2012 at 10.00 A.M. he received burnt pieces of bones and some qunatity of ashes and at 2.00 P.M., on the same day, he performed postmortem. As the remains of the dead body were in the shape of only some bones and ashes the cause and time of the death could not be ascertained and the remains of the body were sent to the State Medico-legal Expert for expert opinion. It has further been stated that no part of the body of the deceased was intact and only some bones and ashes were presented before him. P.W.5- Yadu Nath Yadav is the witness of inquest report (Ext. Ka-4) who stated that on getting information that the house of the appellant had caught fire he went to the house of appellant. The remains of the dead body of the deceased were taken by the police in custody and he also put his signature along with other persons on the inquest report, as a witness. P.W.6- Constable Sanjay Kumar Tiwari is the scribe of the general diary (Ext. Ka-5) wherein the substance of FIR was entered. He also identified the signature and writing of constable Grish Kumar who was the scribe of Chik FIR (Ext. Ka-6). P.W.6- Constable Sanjay Kumar Tiwari is the scribe of the general diary (Ext. Ka-5) wherein the substance of FIR was entered. He also identified the signature and writing of constable Grish Kumar who was the scribe of Chik FIR (Ext. Ka-6). P.W.7- S.S.I. Narad Muni Singh is the second Investigating Officer who stated to have prepared the site plan of the spot (Ext. Ka-7) on the pointing of S.I. Suresh Chandra Mishra and also recorded the statement of the witnesses of inquest report as well as of appellant Ram Dev and his wife Smt. Guddi. On 22.7.2012 he stated to have sent the remains of the deceased to Medico-legal Forensic Lab and also made an entry in the general diary in this regard on 4.8.2012. He further stated to have recorded the statement of Gangadin, Ramesh, Shiv Shakti, Lala, Suresh and Abhishek and also collected the report of Medico-legal Expert dated 28.8.2012 (Ext. Ka-8). P.W.8- Inspector of Police Yogendra Singh is the third Investigating Officer of the case who stated to have arrested the appellant on 27.9.2012 and submitted the charge sheet (Ext. Ka-10) against the appellant. P.W.9- Inspector of Police Suresh Chandra Mishra, at the time of the incident was posted at Police Station Mohan Lal Ganj as Sub Inspector. He has stated that on 15.6.2012 at 8.45 A.M. appellant Ram Dev submitted an application in the Police Station stating therein that his wife Smt. Manju had died due to burn and on receiving this information he along with S.H.O. Sanjay Kumar Pandey, Constable Anil Singh, Sunil Singh and a lady constable Sandhya went to the spot and prepared inquest of the remains of the deceased, which were placed in an iron box. He also stated that he had prepared the necessary papers for the purpose of postmortem and also got the photo graphs of the remains of dead body clicked which are available on record as material Ext.1 to 6. P.W.10- Inspector Shiv Vshishth Narayan is the First Investigating Officer of the case, who at the relevant point of time was posted as the Sub-Inspector at Police Station Mohan Lal Ganj and stated to have entered the investigation on the same day, informed higher officers of the police and caused the inquest report of the remains of the dead body of the deceased prepared by S.I. Suresh Chandra Mishra and sent the remains for postmortem. 15. 15. Having perused the evidence on record what we find is that instant case is based purely on circumstantial evidence. The law with regard to appreciation of circumstantial evidence has been clearly enunciated in the case of Hanumant v.State of Madhya Pradesh MANU/SC/0037/1952 wherein Hon’ble Supreme Court has held as follows: “12 ...It is well to remember that in cases where the 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, and all the facts so established should be consistent only with the hypothesis of the guilt of the Accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the Accused and it must be such as to show that within all human probability the act must have been done by the Accused” Hon'ble Apex Court in the case Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR, 1984 SC 1622 laid down that the following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established; "1. the circumstances from which the conclusion of the guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established. 2. the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; 3. the circumstances should be of a conclusive nature and tendency; 4. The circumstances concerned 'must or should' and not 'may be' established. 2. the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; 3. the circumstances should be of a conclusive nature and tendency; 4. they should exclude every possible hypothesis except the one to be proved, and 5.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." In Jaharlal Das v. State of Orissa, (1991) 3 SCC 27 , it was held that even if the offence is a shocking one, the gravity of offence cannot by itself overweigh as far as legal proof is concerned. In cases depending highly upon the circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof. The court has to be watchful and ensure that the conjecture and suspicion do not take the place of legal proof. The court must satisfy itself that various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. It is further held in Para 8 of the above cited report that in order to sustain the conviction on the basis of circumstantial evidence, the following three conditions must be satisfied: i.) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; ii.) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and iii.) 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 it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused. In Varkey Joseph v. State of Kerala, MANU/SC/0295/1993, it was held that suspicion is not the substitute for proof. In Varkey Joseph v. State of Kerala, MANU/SC/0295/1993, it was held that suspicion is not the substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all the way to prove its case beyond reasonable doubt. Therefore, keeping in view the above settled legal position, the law pertaining to cases based on circumstantial evidence can be summarized in following terms: 1. The circumstances relied upon by the prosecution which lead to an inference to the guilt of the accused must be proved beyond doubt; 2. The circumstances should unerringly point towards the guilt of the accused; 3. The circumstances should be linked together in such a manner that the cumulative effect of the chain formed by joining the links is so complete that it leads to only one conclusion i.e. the guilt of the accused; 4. That there should be no probability of the crime having been committed by a person other than the Accused. 16. Perusal of the evidence of the prosecution, in the light of above settled principles, would reveal that the FIR of the incident was lodged by P.W.1- Neeraj on 18.6.2012 when he was informed by his sister P.W.2- Nirmala stating that the appellant Ram Dev and his wife and sons have killed their mother Smt. Manju by putting her on fire after pouring kerosene on her. It has also been mentioned in the First Information Report that the appellant and his family members had also gone to the house of the sister of Manju who was living at village Sohawal and inquired from her whether Manju had came to her and she informed that the deceased did not come to her house and thereafter one Pradeep who is maternal cousin of P.W.1- Neeraj Kumar came to Bhasanda (village of appellant) and found that a box is burning inside the room of appellant and he became suspicious. It was also stated in the FIR that it was Pradeep who had told Nirmala that Manju had been burnt by appellant and his family members. P.W.1- Neeraj Kumar in his statement has corroborated the version of FIR and has admitted that he is not an eye witness and his source of information is one Pradeep,who is son of his maternal aunt. P.W.1- Neeraj Kumar in his statement has corroborated the version of FIR and has admitted that he is not an eye witness and his source of information is one Pradeep,who is son of his maternal aunt. It is also evident that the incident is stated to be of the intervening night of 14- 15.6.2012. Neeraj Kumar has admitted in his cross examination that since his mother (Smt. Manju) left their house they did not maintain any connection or relation with her and they did not visit each other’s house. It is also admitted by him in his cross examination that about 8 years ago his mother Smt. Manju had left his father Surendra Pal and started living with appellant- Ram Dev. He has also admitted that the FIR has been lodged by him on the basis of information provided by others and he never visited the village Bhasanda where her mother was burnt. According to him her mother never married appellant- Ram Dev. P.W.2- Nirmala in her statement has also admitted that her mother was living with appellant as mistress and on getting information of the incident from Pradeep she went to the village of appellant and was informed by the villagers that on 14-15.6.2012 at 5.00 P.M. that appellant and deceased had quarreled and appellant had also assaulted her. She stated to have found the body of her mother in a box in the room in burnt condition. She has also admitted that at first the information of the incident was given by Pradeep. On perusal of the testimony of this witness it would reveal that she was also not an eye witness of the incident and her source of knowledge about the incident was Pradeep and other villagers who allegedly informed her about the incident. In her cross examination she stated to have received the information of the incident on 16.6.2012 at 6.00 A.M. in the morning and arrived at village Bhasanda at 8.00 A.M. She significantly stated that she did not lodge the First Information Report and the report was lodged by her brother (Neeraj Kumar) on the third day of the incident. She has also admitted that she was not having any relation with her mother after her marriage with appellant – Ram Dev. She has also admitted that she was not having any relation with her mother after her marriage with appellant – Ram Dev. It is also stated that about 3 years before when her husband died she came to meet her mother who told her that appellant- Ram Dev used to beat her. The crux of evidence of these two witnesses is that both these witnesses are not the eye witness of the incident. Their mother was living with appellant as mistress and in this regard the evidence of P.W.2- Nirmala, that the deceased Manju was married to appellant – Ram Dev, does not appear to be correct, specially in the back ground of evidence of P.W.1- Neraj Kumar who has fairly admitted that his mother was living with the appellant for the last 8 years without any marriage being solemnized, which has also been corroborated by P.W.2- Smt. Nirmala in her examination- in- chief, where she has stated that her mother was living with the appellant as his mistress. It is also evident from the evidence of these two witnesses that since the deceased started living with appellant they had severed all relations from her and also that the information of the murder of their mother was given to P.W.2- Nirmala by Pradeep and thereafter by villagers. However, neither any villager has been produced by the prosecution who could testify about the fact that the deceased has been killed by the appellant nor Pradeep, who stated to have informed the P.W.2- Smt. Nirmala about the incident, has been presented as a prosecution witness. Thus, what is apparent from the evidence of P.W.1- Neeraj Kumar and P.W.2- Smt. Nirmala is that they were informed either by villagers or Pradeep about the fact that the deceased- Manju had been killed by the appellant, but none of these witnesses were presented before the trial Court. Therefore the testimony of these witnesses about the fact that that appellant had murdered the deceased is nothing but hearsay. 17. Now we consider the evidence of P.W.3-Ishaque who is a witness of fact that at the fateful night at about 4.00 A.M. appellant – Ram Dev came to his house and informed that his house had caught fire. He stated to have gone with appellant and saw that the house of the appellant was burning. 17. Now we consider the evidence of P.W.3-Ishaque who is a witness of fact that at the fateful night at about 4.00 A.M. appellant – Ram Dev came to his house and informed that his house had caught fire. He stated to have gone with appellant and saw that the house of the appellant was burning. He advised him to call the fire-brigade but neither he nor appellant put off the fire and it was only when the Pradhan of the village P.W.5- Yadu Nath Yadav arrived at the spot, who informed the police and fire-brigade and thereafter the fire was extinguished. P.W.3- Ishaque has further stated that the dead body of the deceased was recovered from a box in the shape of bones and ashes which was taken into custody by the police and he did not tell the police that the deceased might have ben killed by the appellant. It is also admitted by him in his cross examination that the appellant and deceased did not fight or quarrel with each other and also that he could not say from where in the house the dead body of the deceased was recovered. Importantly he has also admitted that in the night of the incident appellant- Ram Dev was not present at his house as he had gone in a marriage with his vehicle ‘Tata Magic’. It is also stated by him that when he reached the house of the appellant, he found that the door was shut. According to him bones and ashes were not sealed at the spot and they were taken by the police in a piece of clothe. He also opined that it was a known fact that the deceased used to drink alcohol. It is evident from the evidence of this witness that the appellant was not at home at the fateful night and had gone somewhere in the marriage with his vehicle ‘Tata Magic’ and the door of the room where from the remains of the deceased were recovered was shut. Significantly, despite having deposed against the prosecution this witness was not requested to be declared hostile by the prosecution and the prosecution choose not to impeach his testimony under Section 154 of the Indian Evidence Act on certain points like the non- presence of the appellant in the house on the fateful night. 18. Significantly, despite having deposed against the prosecution this witness was not requested to be declared hostile by the prosecution and the prosecution choose not to impeach his testimony under Section 154 of the Indian Evidence Act on certain points like the non- presence of the appellant in the house on the fateful night. 18. If we peruse the evidence of P.W.1- Neeraj Kumar, P.W.2- Smt. Nirmla and P.W.3- Mohd. Ishaque only facts which appear to have been proved are that the house of the appellant caught fire in the intervening night of 14-15.6.2012 and at 4.00 A.M. the appellant informed P.W.3- Mohd. Ishaque that his house had caught fire and the door of the house was found shut when Mohd. Ishaque reached there and there does not appear any evidence or even any circumstance which may point towards the fact that the appellant had caused the death of the deceased. In this regard if we peruse the conclusion drawn by the subordinate court at page 16 of its judgment the same appears to be nothing but only conjectures and speculations. The evidence of the prosecution witnesses specially of P.W.3- Mohd. Ishaque is also to the tune that the son of the first wife of appellant had met an accident and there was some dispute pertaining to this. In his cross examination he has also stated that Ram Dev used to get his injured son treated and deceased used to forbid him not to get him treated and not to spend money on him. This part of the evidence of P.W.3- Mohd. Ishaque has been taken by the trial court to presume that this may be the motive for the appellant to commit the murder of the deceased, while the trial court has completely turned its eyes away from the evidence of the same witness when he stated that Ram Dev and his wife (deceased) did not have any quarrel or issue between them. The trial Court has also not taken into consideration his statement that at the fateful night the appellant was not present at the home of deceased as he had gone to some village along with his vehicle ‘Tata Magic’ in a marriage. The trial Court has also not taken into consideration his statement that at the fateful night the appellant was not present at the home of deceased as he had gone to some village along with his vehicle ‘Tata Magic’ in a marriage. As we have already stated that the statement of P.W.2- Nirmala with regard to the fact that three years before the incident she came to village Bhasanda and was informed by the deceased that the appellant used to beat her, could either not be believed and certainly would not provide any motive to the appellant to commit the murder of the deceased since a person would not wait for three years to commit the murder. So these two circumstances relied on by the trial court as a motive to commit the crime are not believable and reliable in the facts and circumstances of the case. The facts which may be used against the appellant could not be presumed, unless provided by any statutory provision and the circumstances which are intended to be used against the accused in a case based on circumstantial evidence and such circumstances should also be proved like any other fact. 19. Now we deal with another limb of reasoning which perhaps has also persuaded the trial court to take adverse inference against the appellant. The prosecution evidence available on record proves that some bones and ashes were found from a box in the burnt house. It was stated that the deceased and appellant were living in this house, however, it has come in the evidence of P.W.3- Mohd. Ishaque that the first wife of the appellant was living separately. In view of this evidence we have to see as to whether in the back ground of proved circumstances the principle as contained under Section 106 of the Indian Evidence Act could be invoked against the appellant and as to whether he may be compelled to explain the facts and circumstances, specifically within his knowledge i.e. as to how the deceased had died and how her house got burnt. There can not be any doubt as to the proposition of law that the principle as contained under Section 106 of the Indian Evidence Act does not absolve the prosecution from discharging its initial burden. There can not be any doubt as to the proposition of law that the principle as contained under Section 106 of the Indian Evidence Act does not absolve the prosecution from discharging its initial burden. The prosecution is bound to prove those facts on the basis of which burden may be placed on accused person to explain the circumstances which are stated to be in his special knowledge. The law pertaining to section 106 of the Indian Evidence Act is now no more res integra . In Ranjit Kumar Haldar vs. State of Sikkim reported in MANU/SC/0964/2019 Honble Supreme Court has opined as below:- “14. The general Rule is that the burden of proof is on the prosecution. Section 106 of the Act was introduced not to relieve the prosecution of their duty but it is designed to meet the situation in which it would be impossible or difficult for the prosecution to establish facts which are especially within the knowledge of the Accused. 15. In Shambu Nath Mehra v. State of Ajmer AIR 1956 SC 404 , the Court held as under: 8. Section 106 is an exception to Section 101. Section 101 lays down the general Rule about the burden of proof. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. Illustration (a) says-- A desires a court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime. 9. This lays down the general Rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the Accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the Section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the Accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an Accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. Emperor AIR 1936 PC 169 ] and Seneviratne v. R. [(1936) 3 All ER 36, 49]. xx xx xx 11. We recognize that an illustration does not exhaust the full content of the Section which it illustrates but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose to exercise due diligence, as to the Accused, the facts cannot be said to be "especially" within the knowledge of the Accused. This is a Section which must be considered in a commonsense way; and the balance of convenience and the disproportion of the labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the Accused could prove them, are all matters that must be taken into consideration. The Section cannot be used to undermine the well established Rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts. 16. In another judgment reported as Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681 , the Court considered a situation wherein Accused is alleged to have committed the murder of his wife. The prosecution succeeded in leading evidence to show that shortly before the commission of the crime, they were seen together or the offence takes place in the dwelling house where the Appellant normally resided. The Court held as under: 22. The prosecution succeeded in leading evidence to show that shortly before the commission of the crime, they were seen together or the offence takes place in the dwelling house where the Appellant normally resided. The Court held as under: 22. Where an Accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the Accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v. State of H.P. (1972) 2 SCC 80 : 1972 SCC (Cri.) 635: 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 "khukhri" 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 : 1993 SCC 20 (Cri.) 435] 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 Code of Criminal Procedure The mere denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the Accused, but consistent with the hypothesis that the Appellant is a prime Accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal (1992) 3 SCC 300 : 1992 SCC (Cri.) 642: 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 the wife had committed suicide by burning herself and that he was not at home at that time. The defence of the husband was that the 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 Indian Penal Code. In State of T.N. v. Rajendran (1999) 8 SCC 679 : 2000 SCC (Cri.) 40] 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 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. 17. In another Judgment reported as Nika Ram v. State of Himachal Pradesh (1972) 2 SCC 80 , it was held that the absence of any cogent explanation by the Accused would indicate that the Accused is responsible for commission of the crime. The Court held as under: 16. It is in the evidence of Girju PW that only the Accused and Churi deceased resided in the house of the Accused. To similar effect are the statements of Mani Ram (PW 8), who is the uncle of the Accused, and Bhagat Ram school teacher (PW 16). According to Bhagat Ram, he saw the Accused and the deceased together at their house on the day of occurrence. Mani Ram (PW 8) saw the Accused at his house at 3 p.m., while Poshu Ram (PW 7) saw the Accused and the deceased at their house on the evening of the day of occurrence. According to Bhagat Ram, he saw the Accused and the deceased together at their house on the day of occurrence. Mani Ram (PW 8) saw the Accused at his house at 3 p.m., while Poshu Ram (PW 7) saw the Accused and the deceased at their house on the evening of the day of occurrence. The Accused also does not deny that he was with the deceased at his house on the day of occurrence. The house of the Accused, according to plan PM, consists of one residential room, one other small room and a verandah. The correctness of that plan is proved by A.R. Verma overseer (PW 5). The fact that the Accused alone was with Churi deceased in the house when she was murdered there with the khokhri and the fact that the relations of the Accused with the deceased, as would be shown hereafter, were strained would, in the absence of any cogent explanation by him, point to his guilt. 18. In State of Rajasthan v. Thakur Singh (2014) 12 SCC 211 , this Court reiterated the principle that burden of proving guilt of the Accused is on the prosecution but there may be certain facts pertaining to a crime that can be known only to the Accused. The Court held as under: 22. The law, therefore, is quite well settled that the burden of proving the guilt of an Accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the Accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the Accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts.” Honble Supreme Court in Nawab vs. State of Uttarakhand reported in MANU/SC/0069/2020, after considering earlier authority i.e. Trimukhi maroti Kirkan ( Cited Below) held as under:- “9. The wife of the Appellant met a homicidal death in her own house past mid night when the Appellant was alone with her. His defence has completely been disbelieved with regard to the intruders and we find no reason not to uphold the same. The wife of the Appellant met a homicidal death in her own house past mid night when the Appellant was alone with her. His defence has completely been disbelieved with regard to the intruders and we find no reason not to uphold the same. The prosecution had therefore established a prima facie case and the onus shifted to the Appellant Under Section 106 of the Evidence Act, 1872 to explain the circumstances how his wife met a homicidal death. The Appellant failed to furnish any plausible defence and on the contrary tried to lead false evidence which is an additional aggravating factor against him. 10. In Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 , it was observed as follows: 14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the Accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. 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.... 15. 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. 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.” In Neel Kumar vs. The State of Haryana reported in MANU/SC/0416/2012 it was observed by Honble Supreme Court that “17. In our opinion, the courts below have taken a correct view so far as the application of Section 106 of the Evidence Act is concerned. This Court in Prithipal Singh and Ors. v. State of Punjab and Anr. (2012) 1 SCC 10 , considered the issue at length placing reliance upon its earlier judgments including State of West Bengal v. Mir Mohammad Omar and Ors. etc. etc. AIR 2000 SC 2988 ; and Sahadevan @ Sagadevan v. State rep. by Inspector of Police, Chennai AIR 2003 SC 215 and held as under: That if fact is especially in the knowledge of any person, then burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused. 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 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. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. (See also: Santosh Kumar Singh v. State through CBI: (2010) 9 SCC 747 ; and Manu Sao v. State of Bihar (2010) 12 SCC 310 ). In State of Rajasthan vs. Thakur Singh reported in MANU/SC/0536/2014 Honble Supreme Court held as under:- “16. (See also: Santosh Kumar Singh v. State through CBI: (2010) 9 SCC 747 ; and Manu Sao v. State of Bihar (2010) 12 SCC 310 ). In State of Rajasthan vs. Thakur Singh reported in MANU/SC/0536/2014 Honble Supreme Court held as under:- “16. Way back in Shambhu Nath Mehra v. State of Ajmer, 1956 SCR 199 this Court dealt with the interpretation of Section 106 of the Evidence Act and held that the section is not intended to shift the burden of proof (in respect of a crime) on the accused but to take care of a situation where a fact is known only to the accused and it is well nigh impossible or extremely difficult for the prosecution to prove that fact. It was said: This [Section 101] lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. 22. The law, therefore, is quite well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts.” In State of Rajasthan vs. Kashi Ram, MANU/SC/8632/2006, while considering many authorities on the subject it was held by Honble Supreme Court:- “17. It is not necessary to multiply with authorities. The principle is well settled. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Mad 218 .” 20. Coming to the facts of the present case it has come in the evidence of prosecution witness that the deceased was living with the appellant as mistress or concubine and the first wife of the appellant and the husband of the deceased was also alive and was residing sperately. Appellant and deceased had never solemnized marriage. It is also evident from the evidence available on record that the husband and children of the deceased had severed all relations from the deceased since the time she started living with appellant – Ram Dev. Appellant and deceased had never solemnized marriage. It is also evident from the evidence available on record that the husband and children of the deceased had severed all relations from the deceased since the time she started living with appellant – Ram Dev. This is therefore evident and proved that the deceased was not the legally wedded wife of the appellant and in presence of his first wife who was living separately, it could not be presumed that at every night the appellant would have been present with the deceased in her house and therefore on the same score it could not be presumed, unless it is proved by the prosecution by leading some cogent and reliable evidence, that the appellant, on the fateful night, was present with the deceased. Had the deceased being the legally wedded wife of the appellant and his first wife would have not been living separately or would have been dead then this presumption may very well be available to the prosecution that unless otherwise proved the presence of the appellant should be invariably with the deceased but in the facts and circumstances stated above no such presumption could be drawn against appellant that on the fateful night the appellant was with the deceased. No evidence has either been led by the prosecution which may prove the fact that the appellant was present with the deceased in the house which was burnt or he, as a matter of routine, resided with the deceased in her house and therefore in absence of any such evidence this fact could not be in the specific knowledge of the appellant as to why the deceased had burnt or how the house of deceased had caught fire and even if any explanation provided by the appellant, in this regard, is not found truthful, no adverse interference could be drawn as in the facts and circumstances of the case reverse burden could not be placed on the appellant. The factum of how the deceased got burnt and catching of fire by her house could not be said to be in the specific knowledge of the appellant, specially in the back ground of the evidence led by the appellant in the shape of evidence of D.W.1- Rakesh Kumar and D.W.2- Tinna pertaining to the fact that the appellant on the fateful night had actually gone in the marriage of brother of D.W.1- Rakesh Kumar and remained there from 5.00 P.M. on 14.6.,2012 till 4.00 A.M. on 15.6.2012. The observation of the trial court that there was an opportunity with the appellant that he may return to his village in between and may commit the crime could have been relevant when there were other circumstances available against the appellant, but in this case even if the alibi put forth by the appellant is disbelieved for a moment, there are no other circumstances proved against him which may be termed as conclusive and may be so strong that it may be inferred that the crime in all probability has been committed by the appellant. Hence in absence of any such incriminating proved circumstances the defence of the appellant that in the fateful night he was not present at his home and had gone to village Parwar East in the marriage of the brother of D.W.1- Rakesh Kumar and returned from there at 4.00 A.M. on 15.6.2012 could not be disbelieved. In this regard the evidence of D.W.3- Ram Sagar also appears reliable when he stated that the deceased used to threaten the appellant to commit suicide and 20 days before the incident she had attempted suicide by lying on a pyre and on that date also the appellant was not present with the deceased. 21. We would also like to discuss the conduct of appellant which assumes significance in the case which is based on circumstantial evidence. The appellant had informed the police about the incident by giving information in writing as has been admitted by P.W.7- S.S.I. Narad Muni that an information on 15.6.2012 at 8.45 A.M. was given by the appellant that the deceased had died of burn injuries. The appellant had informed the police about the incident by giving information in writing as has been admitted by P.W.7- S.S.I. Narad Muni that an information on 15.6.2012 at 8.45 A.M. was given by the appellant that the deceased had died of burn injuries. It is also an important circumstance that in the FIR itself it has been stated that the appellant after the incident had gone to the house of the sister of the deceased to inquire as to whether the deceased had come there. It is also available on record that the appellant was also a panch witness of inquest report and remained present throughout. Hon’ble Supreme Court in Raj Kumar Singh Vs. State of Rajasthan reported in MANU/SC/0468/2013 has held as under :- “18. In Kali Ram v. State of Himachal Pradesh : AIR 1973 SC 2773 , this Court observed as under: Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence. 19. I n R. v. Hodge 168 ER 1163, the Court held that before a person is convicted entirely on circumstantial evidence, the Court must be satisfied not only that those circumstances were consistent with his having committed the act, but also that the facts were such, so as to be inconsistent with any other rational conclusion other than the one that the accused is the guilty person.” “Similarly, in Sharad Birdhichand Sarda (Supra), this Court held as under: Graver the crime, greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt or the accused is sought to be established by circumstantial evidence.” 22. When on the evidence two possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt or the accused is sought to be established by circumstantial evidence.” 22. Having regards to the facts and circumstances which have been brought on record by the prosecution, we find that the prosecution has miserably failed to prove its case beyond reasonable doubt against the appellant. Even at the cost of repetition we would like to highlight that in a case based on circumstantial evidence it is incumbent on the prosecution to prove that the circumstances which have been relied upon by the prosecution are proved beyond doubt and all these proved circumstances must unerringly point towards the guilt of the accused and the circumstances should be linked together in such a manner that cumulative effect of the chain so formed be so complete that it leads to only one conclusion i.e. the guilt of the accused and also that there should be no probability that the crime has been committed by a person other than the accused. In the instant case the prosecution has faled to prove such circumstances from which the guilt of the appellant could be inferred, moreso when in our considered opinion section 106 of the evidence Act is not attracted in this case. Resultantly, we are of the opinion that the prosecution has failed to bring home the guilt of the appellant and he is liable to be acquitted of all the charges framed against him. In view of the above, the appeal filed by the appellant is having substance and therefore the same is allowed. The judgment and order of the trial Court dated 15.9.2016 passed by Special Judge Prevention of Corruption Act/ Additional District & Sessions Judge, Court No.2, Lucknow, in Sessions Trial No. 75 of 2013, ‘State vs. Ram Dev’ arising out of Case Crime No. 247 of 2012, under Section 302 IPC, Police Station Mohan Lal Ganj, District Lucknow, whereby the appellant has been convicted under Section 302 IPC is hereby set aside and the appellant is acquitted of all the charges framed against him by the trial Court. Appellant, as per the report of the office dated 16.03.2020, is detained in jail. Appellant, as per the report of the office dated 16.03.2020, is detained in jail. He is directed to be released from the prison if his further detention is not required in any other case. Appellant, in compliance of the provision contained under Section 437A Cr.P.C. will file a personal bond along with two sureties of the like amount before the trial Court to its satisfaction within a month from the date of his release from jail. Record of the trial Court along with a copy of this judgment be immediately sent to the trial Court. Shri Shahid Akhtar learned Amicus Curiae will get Rs. 10,000/- as honorarium.