Devnarayan and Others vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.—Aggrieved by their conviction and sentence, Devnarayan and his brother, Sumer Singh, and Bhagwanya, have instituted the present appeal, under Section 374 of Code of Criminal Procedure, 1973, in order to assail the impugned judgment dated 08.04.2005, rendered by the Additional Sessions Judge (Fast Track), Bandikui, District Dausa, whereby the appellants have been held guilty for offences punishable under Sections 302 and 201 of Indian Penal Code. However, the trial Court has acquitted the appellants, qua charge under Section 498-A of Indian Penal Code, by extending benefit of doubt.

In the instant case, Smt. Sheela, the daughter of Ramphool (PW-2), the first informant/complainant, was married with the appellant No. 1, Devnarayan, twelve-years ago prior to the occurrence. From the womb of Smt. Sheela and the loins of the appellant No. 1, Devnarayan, two daughters, namely Manisha and Dholli, aged about four-years and two-years respectively, were born.

On 13.04.2004 Smt. Sheela along with her two daughters, namely Manisha and Dholli died, and were clandestinely cremated without informing the complainant Ramphool (PW-2), father of the deceased and other relatives of Smt. Sheela.

The appellant No. 1, Devnarayan was tried for the murder of his wife Smt. Sheela and two daughters, namely Manisha and Dholli, aged about four-years and two years respectively.

The Court of Additional Sessions Judge (Fast Track), Bandikui, District Dausa, by its impugned judgment dated 08.04.2005, held the appellant No. 1, Devnarayan guilty for offences punishable under Sections 302 and 201 of Indian Penal Code.

The trial Court had acquitted the appellants No. 2 and 3, namely Sumer Singh and Bhagwanya for offence punishable under Sections 302 I.P.C. and held them guilty for offence punishable under Section 201 I.P.C.

Having convicted the appellants for the above said offences, the trial Court, by a separate order of even date, sentenced them as under:--

Accused-appellant No. 1, Devnarayan :

"For offence under Section 302 I.P.C. to undergo life imprisonment and to pay a fine of Rs. 5000/-. In default of payment of fine to further undergo six months'' simple imprisonment.

For offence under Section 201 I.P.C. to undergo three years simple imprisonment and to pay a fine of Rs. 500/-. In default of payment of fine to further undergo three months'' simple imprisonment.

Accused-appellant Nos. 2 and 3, namely Sumer Singh and Bhagwana :

For offence under Section 201 I.P.C. to undergo three years simple imprisonment and to pay a fine of Rs. 500/-. In default of payment of fine to further undergo three months'' simple imprisonment."

All the sentences were ordered to run concurrently.

Devnarayan (appellant No. 1) is resident of Village, Dudki, Police Station, Kolwa, District Dausa, whereas Ramphool (complainant), is resident of Village Mundghisya, Tehsil Baswa, District Dausa.

Prosecution, in the present case, has examined as many as twenty-one witnesses, and has proved twenty-seven documents i.e. Exhibit-P/1 to Exhibit-P/27 respectively.

The accused have given their versions in their statements recorded under Section 313 Cr.P.C. The accused, Devnarayan has raised a plea of alibi and has examined two witnesses in defence.

Prosecution evidence can be broadly divided into three parts. The first set of witnesses, include the complainant, relatives of the deceased and the residents of Mundghisya, native Village of deceased Sheela. They have deposed that after marriage, deceased Smt. Sheela was harassed by her in-laws and husband, Devnarayan, (appellant No. 1) on account of demand of dowry; she was subjected to maltreatment and cruelty, as her in-laws and husband were demanding Rs. 50,000/- as cash and a Hero Honda motorcycle.

The second set of witnesses belong to the Village Dudki, where Smt. Sheela was married and the Village belongs to Devnarayan, (appellant No. 1). The witnesses have turned hostile and have not supported the prosecution case, but in cross-examination, they have admitted that the appellant No. 1, Devnarayan was present in the Village on the day of occurrence as he had come to the Village two/three days before the occurrence.

The third set, include witnesses, who had participated in the investigation.

So far as the present case is concerned, we shall firstly threadbare consider the two sets of witnesses, which include residents of Village Mundghisya, native village of deceased, and Village Dudki where deceased Sheela was married and shall refer to the statements of the witnesses, who have participated in the investigation wherever it is necessary.

In the present case, the criminal proceedings were set into motion on the basis of written-report (Exhibit-P/3) presented by Ramphool (PW-2), the father of deceased Smt. Sheela, to Phool Chand (PW-21), who at the relevant time was posted as Station House Officer, Police Station, Kolwa.

The written report, (Exhibit-P/3), when translated into English reads as under:--

To,

The In-charge, Police Station, Kolwa

Subject : Regarding demand of dowry and murder.

Sir,

In the above noted subject, it is submitted that I Ramphool Gurjar S/o. Arjun Lal Gurjar, am resident of Mundghisya. The marriage of my daughter Sheela was solemnized with Devnarayan S/o. Ramdhan Gurjar, resident of Dudki about twelve years ago. After three years of marriage ''gonn a'' ceremony of my daughter was performed. For last eight/nine years, she was living in the house of her in-laws. Sheela has been blessed with two daughters. Sheela was harassed on account of demand of dowry by her husband Devnarayan, elder brothers of husband (jeths), namely Sumer Singh and Khem Singh, the wife of elder brother of husband, namely Prem Devi (jethani) and father-in-law, namely Ramdhan. They were demanding Rs. 50,000/-as cash and a Hero Honda motorcycle. Number of times, after giving beating, they have thrown Sheela out of the house, but I used to make her see reason and sent her back to the in-laws house. Devnarayan in order to perform second marriage subjected my daughter to cruelty and in the end these people have murdered my daughter and her two daughters on 13.03.2004. Without informing us, they have cremated them. We got an information regarding this on 14.04.2004 at about 09:00 P.M. The report is being presented, legal action be taken.

Dated 15.04.2004

Signature Ramphool"

The above said written complaint was presented before Station House Officer, Kolwa on 15.04.2004 at 09:00 A.M.

The First Information Report was investigated. A report under Section 173 Cr.P.C. was submitted in the Court of Magistrate against the present three appellants and six other accused-persons, namely Ramdhan, Ghamman, Rajaram, Harisingh, Lalaram and Kishanlal.

The trial Court, as stated earlier, convicted only three appellants, and acquitted the rest of the other six accused-persons.

The appellants were firstly charged for offence punishable under Section 498-A I.P.C., qua which they have been acquitted.

The second charge stated that on 13.04.2004 in Village Dudki, Smt. Sheela along with her two daughters were murdered in the house of appellant No. 1, Devnarayan and, thus, the accused have committed offence punishable under Section 302 I.P.C.

The third charge stated that on 13.04.2004 in Village Dudki, Smt. Sheela and her two daughters were cremated without informing the Police or the parents of Sheela and, thus, the accused committed offence punishable under Section 201 I.P.C.

The appellants pleaded not guilty and claimed trial.

We shall first notice the evidence of the relatives of deceased Smt. Sheela, who are residents of Village Mundaghisya, regarding ill-treatment and harassment caused to the deceased Smt. Sheela on account of demand of dowry.

Ramphool (PW-2), deposed that he is the father of two daughters, namely Sheela and Kamali. Both were married eleven/twelve years ago. Sheela was married with appellant No. 1, Devnarayan. Sheela was blessed with two daughters, namely Manisha and Dholli, aged about four years and two years respectively. After six/twelve months of marriage, Sheela came to her parental house and informed that Devnarayan, Sumer Singh, Khem Singh and Ramdhan etc. have given threat that they will kill her and perform a second marriage of Devnarayan. A number of times, Sheela was turned out of her matrimonial home. But after some persuasion, she was sent back to her matrimonial home. Devnarayan was residing at Jaipur where he was employed, whereas Sheela along with daughters was residing at Village Dudki. Sheela and her two daughters were murdered. The complainant learnt about the death of Sheela and her daughters on the second day of the occurrence. As to who killed Sheela, witness stated that he cannot say because he was not present. This witness stated that "I was not called to attend cremation of my daughter and her two daughters." This witness further stated that in the night at around 08:00 P.M., he learnt about death of his daughter, and grand-daughters. On the next day, along with five/seven/ten persons, he reached the village of the accused; he came to know that after murder the girls were cremated. Lastly, this witness stated that Sheela used to inform him that the accused gave her beating and demanded dowry.

To similar effect is the testimony of Kajod (PW-3), a cousin of Ramphool (PW-2). This witness also deposed regarding the conduct of the accused and cremation of Sheela and her two daughters without informing the parents or the relatives of Sheela. He is also the witness to the recovery of the blood stained rope of the cot (charpai) from the house of accused vide memo Exhibit-P/5. Lastly, this witness stated that the Police from the cremation ground had taken ashes and bones of the deceased into possession, vide memo Exhibit-P/7.

Kalyan (PW-6), being resident of Village Mundghisya, stated that Ramphool (PW-2) is his brother and reiterated as to what was stated by Ramphool (PW-2). This witness further stated that from the house of the appellant, Devnarayan, the Police had recovered, rope etc.

Balchand (PW-8) being another resident of Village Mundghisya, also deposed regarding cruelty caused to Sheela by her husband i.e. appellant Devnarayan.

Jai Singh, (PW-9), another brother of Ramphool (PW-2) has given a testimony similar in effect.

Suwa (PW-19), the mother of deceased, in cross-examination, also stated that three months prior to death of her daughter, Smt. Sheela had informed her that accused, Devnarayan gave a threat that he will perform a second marriage and was demanding Rs. 50,000/- and a motorcycle as dowry. This witness has corroborated the testimony of her husband, Ramphool (PW-2).

Now we shall notice the statements of the witnesses belonging to Village Dudki i.e. Village of accused-appellants.

Sudama (PW-1) has turned hostile, and has not supported the prosecution case. He was duly cross-examined by the learned Public Prosecutor. This witness stated that on the day of occurrence, he had gone to the house of Devnarayan and had seen the dead bodies of two daughters of Devnarayan and their mother. However, he had not seen Devnarayan and other members of the family at the place of occurrence.

Ghasi (PW-4), being an important witness of the case, stated that eight/seven months before death of Sheela and her two daughters, he had slept at his field to take care of cattle. In the morning, at about 08:00/08:30 A.M., when he came to the house from the fields, then in front of his house, which is a passage for going to cremation ground, he had seen that Bhagwanya and Kalu were carrying two girls and Devnarayan was following them with firewood. They had already taken the dead body of wife of Devnarayan to cremation ground. This witness stated that name of the wife of Devnarayan is Sheela and she was a very gentle woman. This witness further stated that Devnarayan used to reside at Jaipur. This witness was declared hostile as he resiled from his previous statement and was cross-examined by the learned Public Prosecutor.

During cross-examination by the learned Public Prosecutor, this witness stated that "in statement (Exhibit-P/8) at portion K to L, I got recorded that Devnarayan three days before the occurrence, had come to Village to stay with his children and had not got recorded anything else."

In cross-examination by the defence counsel, this witness stated as under:--

Roop Singh (PW-5), another resident of Village Dudki was also declared hostile having not supported the prosecution case. However, this witness, in cross-examination, stated that he asked the residents of the Village about the death of Sheela and her daughters. He was informed that they were murdered. This witness further stated that .

In cross-examination by the defence counsel, this witness further stated that on the day, Sheela died, he had seen Devnarayan in the Village. This witness further stated that day before the occurrence, Sheela died, he had seen Devnarayan in the Village in the morning at 07:00 to 08:00 AM. On the day, dead-body was cremated, on that day also he had seen Devnarayan in the Village.

Chhagan Singh (PW-7), another resident of Village Dudki had also turned hostile and has not supported the prosecution case. This witness, in cross-examination, also admitted that he had seen Devnarayan, day before the occurrence in the Village.

Another very important witness is Gordhan Lal Gurjar (PW-10), resident of Village, Dudki, who was having a grocery shop in the Village. This witness stated that he is having a shop near the house of Sumer Singh, the brother of the appellant, Devnarayan. This witness in the Court stated as under:--

Sawal Ram (PW-17) stated that on 14.04.2004 i.e. the day of occurrence in the morning at around 07:00 to 07:30 AM. Devnarayan came on the motorcycle. Devnarayan had taken tea. Thereafter, Devnarayan had gone to his house. He came back and stated that his wife had consumed something. He along with two/four persons had gone to the house of accused Devnarayan and had seen the dead bodies of Sheela and her two daughters.

Mansaram (PW-18) also turned hostile and has not supported the prosecution case.

Sumer Singh, Constable had taken sealed packets from the State Forensic Science Laboratory, Jaipur. Ramesh Chand (PW-12) was posted as Malkhana Incharge, Police Station. These two witnesses were examined to prove the link evidence.

Hakim Singh (PW-13) had attested the site-plan (Exhibit-P/1), which depicts the presence of three dead bodies in the house of appellant, Devnarayan.

Dr. G.K. Mathur (PW-14) was posted as Assistant Director in the State Forensic Science Laboratory, Jaipur. He had taken a team of the State Forensic Science Laboratory to the cremation ground, and house of accused, and had taken into possession the ashes, and bones, and had also taken photographs of the spot. This witness stated that inside the room where the dead bodies were lying, the presence of blood was visible to the naked eye.

Ramavatar (PW-15), Constable had proved the arrest memos of the accused. Constable Gopal Singh (PW-16) had attested memo, whereby cot (charpai) was taken into possession. Constable, Rajesh (PW-20) stated that in his presence, the Police had taken blood on a swab from the spot for sending the same to the laboratory.

Phool Chand (PW-21), being Investigating Officer stated that accused made a disclosure statement under Section 27 of the Indian Evidence Act and got recovered rope with which deceased was strangulated.

Prosecution closed its evidence.

The statement of accused, Devnarayan was recorded under Section 313 Cr.P.C. and all the incriminating circumstances were put to him. He denied the same and submitted his version in the form of written-statement, wherein he raised a plea of alibi and stated that Sheela was an emotional and an obstinate lady. She was insisting to reside with him at Jaipur. This witness further stated that Sheela after committing murder of two daughters had committed suicide.

In support of plea of alibi, accused examined two witnesses, Shiv Lahari (DW-2) was examined to prove plea of alibi raised by appellant Devnarayan. Banwari Lal (DW-1) was examined to say that he had informed the parents of the deceased. In cross-examination, this witness stated that the information regarding death of Sheela and her two daughters was given to Ram Singh, maternal uncle of Sheela.

Mr. Arvind Kumar Gupta, the learned counsel appearing for the accused-appellants, has submitted that the prosecution has failed to prove that the present appellant, Devnarayan was last seen with his wife, deceased Smt. Sheela and his two daughters soon before the death.

It is further submitted by the learned counsel that until prosecution prove that immediately before the death the appellant was present along with the deceased, he cannot be called upon to furnish any explanation under Section 106 of the Indian Evidence Act.

To fortify this submission, Mr. Gupta, learned counsel, has cited the judgment rendered by a Division Bench of Orissa High Court in the case of Hadu Vs. The State, AIR 1951 Ori 53 : (1955) 21 CLT 214 .

We have no quarrel with the preposition canvassed by Shri Gupta, before us, but in view of the facts of the case, we are unable to accept that the appellant was not present along with his wife and two daughters on the fateful day.

Having failed to deflect volley of observations made by us regarding the presence of the appellant on the scene of occurrence, Mr. Gupta, Advocate, in alternative, has canvassed that the statement made by the present appellant before Gordhan Lal Gurjar (PW-10) and Sawal Ram (PW-17) that the deceased had died due to consumption of something, should be taken into consideration to assume that the deceased Sheela had committed suicide after causing death of her two daughters by consuming some poisoning substance.

Before us, it is contended by the learned counsel that the statement made by accused to Gordhan Lal Gurjar (PW-10) can be taken into consideration as res gestae evidence.

In support of this contention, Mr. Gupta, Advocate has relied upon the case of Venkatesan v. The State, 1997 Cri.L.J. 3854, wherein a Division Bench of the Madras High Court held that the statement made within half an hour of the occurrence is admissible under Section 6 of the Indian Evidence Act.

Further reliance was placed upon the case of Om Singh Vs. State of Rajaslhan, (1997) CriLJ 2419 , wherein the Division Bench of this Court held that something spontaneously said by the witness at the scene of occurrence is admissible under Section 6 of the Indian Evidence Act being res gestae evidence.

Thus, in the alternative, it has been canvassed before us by the learned counsel that the appellant has committed no offence or at the most he can be held liable for abatement to suicide and can be punished for offence under Section 306 I.P.C. and not under Section 302 I.P.C.

Mr. Gupta, the learned counsel has relied upon the case of C.N. Peters Vs. The State, AIR 1959 All 483 : (1959) 29 AWR 589 : (1959) CriLJ 924 , a judgment rendered by the Single Bench of Allahabad High Court, wherein His Lordship A.N. Mulla, J. as he then was held that inculpatory statement made by accused can be taken into consideration subject to lot of caution, and with great deal of care.

As a first reaction, we were amenable to accept the second argument raised by the learned counsel appearing for the accused-appellants, but after giving due consideration and taking totality of facts and circumstances of the case, we are unable to accept the second argument raised before us.

We find no merit in both the arguments raised before us by the learned counsel with great eloquence and persuasion.

In the present case, it has come in the evidence of the witnesses that since three days before the occurrence, the appellant, Devnarayan was in the Village. It has also come in the evidence of the witness of Ghasi (PW-4) that he had heard voice of Smt. Sheela and the appellant, Devnarayan from their room.

Thus, in these circumstances, it was incumbent for the appellant Devnarayan to furnish an explanation as to how Smt. Sheela, his wife and his two daughters have died.

Recently, the Hon''ble Supreme Court in the case of State of Rajasthan Vs. Thakur Singh, (2014) AIRSCW 4479 : (2014) 8 JT 50 : (2014) 8 SCALE 82 , had observed as under:--

"Discussion and conclusion

Questioning the decision of the High Court acquitting Thakur Singh, the State of Rajasthan has preferred this appeal.

We find that the High Court has not at all considered the provisions of Section 106 of the Evidence Act, 1872.1 This section provides, inter alia, that when any fact is especially within the knowledge of any person the burden of proving that fact is upon him.

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.

Illustrations

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.

Way back in Shambhu Nath Mehra v. State of Ajmer 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."

In a specific instance in Trimukh Maroti Kirkan v. State of Maharashtra this Court held that when the wife is injured in the dwelling home where the husband ordinarily resides, and the husband offers no explanation for the injuries to his wife, then the circumstances would indicate that the husband is responsible for the injuries. It was said:

"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."

Reliance was placed by this Court on Ganeshlal v. State of Maharashtra in which case the appellant was prosecuted for the murder of his wife inside his house. Since the death had occurred in his custody, it was held that the appellant was under an obligation to give an explanation for the cause of death in his statement under Section 313 of the Code of Criminal Procedure. A 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 was a prime accused in the commission of murder of his wife.

Similarly, in Dnyaneshwar v. State of Maharashtra this Court observed that since the deceased was murdered in her matrimonial home and the appellant had not set up a case that the offence was committed by somebody else or that there was a possibility of an outsider committing the offence, it was for the husband to explain the grounds for the unnatural death of his wife.

In Jagdish v. State of Madhya Pradesh this Court observed as follows:

"It bears repetition that the appellant and the deceased family members were the only occupants of the room and it was therefore incumbent on the appellant to have tendered some explanation in order to avoid any suspicion as to his guilt."

More recently, in Gian Chand v. State of Haryana a large number of decisions of this Court were referred to and the interpretation given to Section 106 of the Evidence Act in Shambhu Nath Mehra was reiterated. One of the decisions cited in Gian Chand is that of State of West Bengal v. Mir Mohammad Omar which gives a rather telling example explaining the principle behind Section 106 of the Evidence Act in the following words:

"During arguments we put a question to learned Senior Counsel for the respondents based on a hypothetical illustration. If a boy is kidnapped from the lawful custody of his guardian in the sight of his people and the kidnappers disappeared with the prey, what would be the normal inference if the mangled dead body of the boy is recovered within a couple of hours from elsewhere. The query was made whether upon proof of the above facts an inference could be drawn that the kidnappers would have killed the boy. Learned Senior Counsel finally conceded that in such a case the inference is reasonably certain that the boy was killed by the kidnappers unless they explain otherwise."

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.

Applying this principle to the facts of the case, since Dhapu Kunwar died an unnatural death in the room occupied by her and Thakur Singh, the cause of the unnatural death was known to Thakur Singh. There is no evidence that anybody else had entered their room or could have entered their room. Thakur Singh did not set up any case that he was not in their room or not in the vicinity of their room while the incident occurred nor did he set up any case that some other person entered the room and caused the unnatural death of his wife. The facts relevant to the cause of Dhapu Kunwar''s death being known only to Thakur Singh, yet he chose not to disclose them or to explain them. The principle laid down in Section 106 of the Evidence Act is clearly applicable to the facts of the case and there is, therefore, a very strong presumption that Dhapu Kunwar was murdered by Thakur Singh.

It is not that Thakur Singh was obliged to prove his innocence or prove that he had not committed any offence. All that was required of Thakur Singh was to explain the unusual situation, namely, of the unnatural death of his wife in their room, but he made no attempt to do"

The similar view was also formulated by the Hon''ble Supreme Court in the case of State of Rajasthan Vs. Kashi Ram, AIR 2007 SC 144 : (2006) 10 JT 28 : (2006) 11 SCALE 440 : (2006) 12 SCC 254 : (2006) 9 SCR 501 Supp , and His Lordship has observed as under:--

"17. 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 Mohamed, (1960) CriLJ 620 : (1960) ILR (Mad) 157 : (1960) 73 LW 210 : (1960) 1 MLJ 118 .

There is considerable force in the argument of counsel for the State that in the facts of this case as well it should be held that the respondent having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since, the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Evidence Act. This circumstance, therefore, provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt."

Thus, all the witnesses of the Village have stated in categoric terms that on the day of occurrence, the appellant was in his Village and at his house. Therefore, non-furnishing of explanation regarding cause of death by the appellant, Devnarayan and his later conduct make him guilty of the alleged offence.

We would have accepted the second argument advanced, in alternative, had the dead bodies not been cremated hurriedly and that, too, without informing the parents of the deceased or the Police.

It has come in the evidence that none from the family of deceased Smt. Sheela had attended the cremation. No information was relayed to them. Even Banwari (DW-1) stated that he had given information to Ram Singh, maternal uncle of Smt. Sheela, but even Ram Singh has not been examined, in defence, to admit this fact and furthermore, in case Smt. Sheela had committed suicide, it was necessary for the appellant to inform the Police so that inquest proceedings could be carried in consonance with Section 174 Cr.P.C.

In the present case, the appellant had not waited for the Post-Mortem to be conducted to find cause of death. The entire family i.e. wife and two daughters had died. Nothing prevented the appellant from getting the Post-Mortem carried upon three dead bodies.

The very fact that the dead bodies were hurriedly with great urgency and without informing the parents were clandestinely cremated speaks volume about the conduct of the appellant, especially when all the witnesses of the Village, Mundghisya have stated that Smt. Sheela was subjected to cruelty, maltreatment and harassment on account of demand of dowry.

In the case of State of Rajasthan Vs. Jaggu Ram, AIR 2008 SC 982 : (2008) CriLJ 1039 : (2008) 1 DMC 207 : (2008) 1 JT 199 : (2008) 1 SCALE 22 : (2008) 12 SCC 51 : (2008) AIRSCW 521 : (2008) 1 Supreme 180 , where the dead body was cremated without informing the Police and the parents and the disposal of the dead body in a hush-hush manner was presumed as the circumstances against the accused and Their Lordships held as under:--

"The conduct of the accused and his family members in not informing the parents of the deceased about the injuries caused on her head and consequential death and the fact that the cremation of the dead body was conducted in the wee hours of 30.3.1993 without informing the parents or giving an intimation to the Police so as to enable it to get the post-mortem of the dead body conducted go a long way to show that the accused had deliberately concocted the story that Shanti @ Gokul was suffering from epilepsy and she suffered injuries on her head by colliding against the door bar during the bout of fits. The disposal of dead body in a hush-hush manner clearly establish that the accused had done so with the sole object of concealing the real cause of the death of Shanti @ Gokul."

Taking totality of circumstances, we are convinced that the prosecution has succeeded to prove offence of murder, qua the appellant, Devnarayan.

So far as conviction of remaining two appellants, namely Sumer Singh and Bhagwanya for offence punishable under Section 201 I.P.C. is concerned, we are of the view that it has come in the evidence of Ghasi (PW-4) that they were carrying the dead body and Devnarayan was following with firewood. Therefore, the prosecution has proved offence under Section 201 I.P.C. against both the appellants, as they knew that the crime has been committed and by cremating the dead bodies clandestinely they were causing disappearance of the evidence. The appellants have been sentenced to three years imprisonment by the trial Court.

Considering that the occurrence had taken place in the year, 2004 and the appellants are in the corridors of the Court for the last twelve years while maintaining their conviction for offence under Section 201 I.P.C., we reduce the sentence, qua them to the period already undergone.

We also uphold and maintain the conviction and sentence of appellant, Devnarayan for offence under Section 201 I.P.C. As ordered by the trial Court, the sentence awarded upon the appellant, Devnarayan on both the counts shall run concurrently.

Consequently, we dispose of the present appeal, qua the appellants, Sumer Singh and Bhagwanya by reducing sentence of three years to period already undergone.

However, find no merit in the appeal filed by the appellant No. 1, Devnarayan; and the same is, hereby, dismissed, qua him.