DEVDAS VERMA vs STATE OF CHHATTISGARH

Conviction,Sentence

U/s 302 of IPC,"Life imprisonment with fine of Rs.300/-, in default of

payment of fine amount, additional R.I. for 2 months.

U/s 201 of IPC,"R.I. for 3 years with fine of Rs.100/-, in default of

payment of fine amount, additional R.I. for 1 month.

his wife had died. In such an eventuality, the burden was heavily upon the appellant to explain the manner, in which, his wife had died as this material",

fact was within his special knowledge and it was not possible to be known to anyone else. However, no explanation whatsoever was offered by him to",

throw some light on this material fact as to how his wife had died when both were present together in the house.,

Section 106 of the Indian Evidence Act, 1872 is material at this juncture to examine, which reads as under:-",

“106. Burden of proving fact especially within knowledge.-When any fact is especially within the knowledge of any person, the burden of proving",

that fact is upon him.â€​,

The aforesaid provision clearly provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is",

upon him/her. Here in the case in hand, the prosecution has established the fact that both the husband and wife were together in the house at the",

relevant time. Therefore, by virtue of the aforesaid provision, the appellant/husband was required to explain as to how his wife had died because it",

was not possible to be known to anyone else.,

In the matter of State of Rajasthan v. Kashi Ram reported in AIR 2007 Supreme Court 144, the Supreme Court in such circumstances, has held at",

para-23 as under:-,

“23. ……..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..........â€​",

Likewise, in the matter of State of Rajasthan v Parthu reported in AIR 2008 Supreme Court 10, where the deceased and her husband were",

together in their home at the time when the incident has taken place in the night, the Supreme Court has held at para-12 as under:-",

“12. …….Apart from the fact, as noticed hereinbefore, that the homicidal nature of death was not disputed by the respondent herein and",

furthermore as he in his statement under Section 313 had raised a positive defence that she died of an accident, we are of the opinion the High Court",

adopted a wrong approach. It is not disputed that the deceased and the appellant were living separately from their family. It has also not been disputed,

that at the time when the incident occurred, the respondent was in his house together with the deceased. It is furthermore not in dispute that after the",

incident took place, the respondent was not to be found. He was arrested only on 20.06.1995. If the deceased and the respondent were together in",

their house at the time when the incident took place which was at about 10 O'clock in the night, it was for the respondent to show as to how the death",

of the deceased took place.â€​,

Reverting back to the present case, admittedly the appellant Devdas Verma and his wife Rajwantin Verma both were found together in their",

house at the time when the alleged incident took place on the fateful day. The burden of proof based upon the aforesaid principles was therefore,

certainly upon the appellant to explain as to how the death of his wife had taken place on the fateful day. However, he failed to offer any explanation",

in this regard. Having failed to offer as such would therefore lead to an irresistible conclusion that the appellant Devdas Vema alone was responsible,

for the commission of alleged crime occurred on 18.7.2011. The contention of Mr. Pandey, learned counsel for the appellant that once having held that",

there might have been some altercation between the appellant and his deceased wife and which led to the commission of alleged crime, the trial Court",

under such circumstances ought to have convicted the appellant under Section 304 Part -II of IPC is, therefore, liable to be and is hereby rejected.",

So far as his further contention based upon the principles laid down in the matter of State of Punjab v. Jagtar Singh (supra) is concerned, the same",

is also noted to be rejected as the facts involved in the said case are distinguishable from the present one. That is the case where two dead bodies, i.e.,",

Gurnam Singh and Paramjit Kaur, the sister of the accused persons, were found in the courtyard of the accused persons. Upon analyzing the evidence",

and that by considering the postmortem report of deceased Paramjit Kaur, it was found that the deceased Gurnam Singh had sexual intercourse with",

the sister of the accused persons by entering into their house on the fateful day and both the deceased persons might have been seen by the accused,

persons which led to commission of alleged crime in a heat of passion. However, the facts involved in the present case are entirely on a different",

footing, therefore, it would not be of any help to the appellant.",

Consequently, we do not find any substance in this appeal. The appeal is therefore, liable to be and is hereby dismissed. The judgment under",

appeal as passed by the trial Court convicting and sentencing the appellant for the offence punishable under Sections 302 and 201 of IPC is hereby,

affirmed.,