Harish Chandra vs State Of Uttarakhand

Ravindra Maithani, J

The present criminal appeal has been preferred by the appellant against the judgment and order dated 04.04.2016, passed by the learned Sessions Judge, Nainital in Sessions Trial No. 165 of 2013. By the impugned judgment, the appellant has been convicted under Section 302 IPC and sentenced to undergo life imprisonment along with a fine of Rs.25,000/- and, in default of payment of fine, the appellant shall undergo imprisonment for a further period of two years.

Briefly stated, according to the prosecution, deceased Hema Devi and appellant Harish Chandra were married 3 years prior to the date of incident. On 23.08.2013, the father of the deceased PW1 Nand Kishore received a telephonic message that Hema Devi has died. A suspicion was raised that deceased Hema Devi did not die under normal course, but she was killed. PW1 Nand Kishore on the same day at about 10:30 a.m. lodged a report against the appellant at the revenue police Patti Sunderkhal, Tehsil Dhari, District Nainital under Section 302 of IPC.

Inquest of the dead body was prepared on the same day i.e. on 23.08.2013. The Panch opined that the deceased died under suspicious circumstances. Postmortem of the dead body was conducted on the same day at about 04:15 P.M. in B. D. Pande Hospital at Nainital. According to PW5 Dr. Pankaj Mathur, the death was caused by asphyxia due to throttling; viscera was preserved for chemical analysis and it was sent for forensic examination but no poisonous substance was found in the viscera. On 31.08.2013, the appellant was arrested. Site plan was prepared and, after investigation chargesheet was submitted by the Investigating Officer against the appellant under Section 302 IPC. Cognizance was taken against him and the case was committed to the Court of Sessions for trial. On 21.11.2013, the charge was framed against the appellant under Section 302 IPC, to which, the appellant denied and claimed trial.

In order to prove the case, the prosecution examined eight witnesses, namely, PW1 Nand Kishore, the father of the deceased, PW2 Smt. Parwati Devi, mother of the deceased, PW3 Nisha, sister of the deceased, PW4 Vidya Sagar, uncle of the deceased, PW5 Dr. Pankaj Mathur, who conducted the post-mortem, PW6 Hem Chandra, the Investigating Officer, PW7 Tara Dutt Pandey, the witness of the inquest, who was the member of the Zila Panchayat at the relevant time and PW8 Damodar Pandey, Tehsildar, under whose supervision PW6 Hem Chandra prepared the inquest report.

The appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (for short "the Code"). According to the appellant, he has been falsely implicated. The appellant denied of killing the deceased. What he states was that on the date of incident, he had gone out for work with DW1 Shankar Lal; at about 02:00 P.M., he received a telephone call from his mother that his wife (deceased) was not well and unconscious; he called for a person, who used to give 'Bhabhuti' (some kind of ashes) for curing his wife and the said person assured him that his wife would be recovered, but her condition deteriorated and thereafter, he does not know what happened to him and within an hour of his arrival to his house, his wife died. Appellant has also stated that his wife was a patient of epilepsy. In his defence, the appellant examined DW1 Shankar Lal.

After considering the material on record, learned trial court convicted the appellant of the charge levelled against him under Section 302 IPC and sentenced him, as stated hereinbefore. Aggrieved, the instant appeal has been preferred by the appellant.

Heard Mr. B. S. Adhikari, Advocate for the appellant & Mr. V. K. Gemini, Deputy Advocate General with Mr. Pankaj Joshi, Brief Holder for the State of Uttarakhand and perused the record.

Learned counsel for the appellant would raise the following points in this appeal:-

(i) The prosecution has not been able to prove the case beyond reasonable doubt.

(ii) The appellant was not present in his house when his wife fell sick. At the relevant time, he was working in the field of DW1 Shankar Lal. He returned to his house when he received a telephone call from his mother. Appellant was not the only member of his family residing with the deceased. When he reached house on the relevant date, his wife was already unwell. He tried to cure her, but she could not be saved. It is argued that in such a circumstance, presumption under Section 106 of the India Evidence Act, 1872 (for short 'the Evidence Act') would not apply and a presumption cannot be raised because the facts as to how she died was not within the especial knowledge of the appellant.

(iii) The prosecution has not been able to prove as to who had throttled the deceased; and there were bruises on the neck of the deceased, but, no DNA examination was conducted by the prosecution in order to prove as to who, in fact, had throttled the deceased.

(iv) The prosecution has not denied that the appellant was working in the field of DW1 Shankar Lal. The statement of DW1 has not been controverted. It has also not been denied by the prosecution that the appellant received a telephone call from his mother, while he was working in the field of DW1 Shankar Lal and appellant has also denied that he was at his house with his wife, when she fell sick.

(v) Appellant did not abscond from his house because on 31.08.2013 he was arrested by PW6 Hem Chandra from his house only. Had he any intention to run away from the place, he would not have stayed in his house, so as to be arrested by PW6 Hem Chandra.

It is argued by learned counsel for the appellant that prosecution failed to prove the charges against the appellant and prosecution has failed to prove that it is the appellant and appellant alone, who killed the deceased, therefore, the appellant deserves to be acquitted by giving him benefit of doubt.

It is argued that it cannot be presumed that the cause of death was within the especial knowledge of the appellant and the provision of Section 106 of the Evidence Act cannot be put into play. In support of his contention, learned counsel for the appellant has placed reliance upon the decision of Hon'ble Supreme Court State of West Bengal vs. Mir Mohammad Omar & others reported in 2000 SCC (Cri) 1516, wherein it was held:

"36. In this context we may profitably utilize the legal principle embodied in Section 106 of the Evidence Act which reads as follows: "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.

Vivian Bose, J. had observed that 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. In Shambhu Nath Mehra vs. The State of Ajmer AIR 1956 SC 404 : 1956 SCR 199 : 1956 Cri LJ 794 the learned Judge has stated the legal principle thus:

"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 aforesaid view has also been followed in Vikramjit Singh @ Vicky vs. State of Punjab reported in (2006) 12 SCC 306, wherein it was held:

"13. In the instant case, there are two versions. The learned Sessions Judge proceeded to weigh the probability of both of them and opined that the appellant having not been able to prove its case, the prosecution case should be accepted. In our opinion, the 1 AIR 1956 SC 404 : 1956 SCR 199 : 1956 Cri LJ 794 approach of the learned Sessions Judge was not correct. The High Court also appeared to have fallen into the same error. It invoked Section 106 of the Indian Evidence Act although opining:

"The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference."

Section 106 of the Evidence Act does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case has been proved the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same. Of course, there are certain exceptions to the said rule, e.g. where the burden of proof may be imposed upon the accused by reason of a statue.

It may be that in a situation of this nature where the court legitimately may raise a strong suspicion that in all probabilities the accused was guilty of commission of heinous offence but applying the well-settled principle of law that suspicion, however, grave may be, cannot be a substitute for proof, the same would lead to the only conclusion herein that the prosecution has not been able to prove its case beyond all reasonable doubt."

On the other hand, learned State counsel has vehemently argued that the prosecution has proved the case beyond reasonable doubt against the appellant and no interference is warranted in this appeal. It is argued that the statement of DW1 Shankar Lal is not worth credit and prosecution has given suggestion to this defence witness that whatever he is stating is false, to which, he has denied. It is argued by learned State counsel that the plea of alibi was to be proved by the appellant, which he utterly failed; he is the husband of the deceased and was residing in the same dwelling house; his presence in the house cannot be doubted and the factum of the cause of the death was within the especial knowledge of the appellant, which he has not explained; the cause of death of the deceased is not epilepsy, as has been suggested by the appellant in his statement recorded under Section 313 of the Code.; the deceased died due to asphyxia by throttling and there are ample evidence to prove that it is the appellant who had been harassing and torturing the deceased. In this regard, the deceased had informed to PW1 Nand Kishore, PW2 Smt. Parwati Devi, PW3 Nisha and others. In support of his submission, learned State counsel has referred to the statements of PW1 Nand Kishore, father of the deceased, PW2 Smt. Parwati Devi the mother of the deceased, PW3 Nisha, the sister of the deceased and PW4 Vidya Sagar the uncle of the deceased.

Learned State counsel would further argue that in fact, the conduct of the appellant is also another link, which gives credence to the prosecution. The death occurred on 22.08.2013 and, on that day, none from the family of the appellant did inform the PW1 or any other family members of PW1 about the ill health or death of the deceased and it is only on 23.08.2013, PW1 could be informed about the death of the deceased Hema Devi. It is argued by learned State counsel that the appeal has no substance and it deserves to be dismissed.

A few facts, which are admitted, are that the deceased and appellant were married; deceased died in her matrimonial house, the site plan has been prepared; the postmortem was conducted on 23.08.2013 at 4:15PM; and according to postmortem report, the time of death was about 12 to 24 hours before the postmortem examination. PW5 Dr. Pankaj Mathur has stated that he conducted the postmortem on the dead body of the deceased on 23.08.2013 at about 4:15 P.M.; following injuries on the dead body were found.

"1.Multiple bruises 2 cm X ½ cm, 3 cm X ½ cm, 1 cm X ½ cm all present on 1 cm. apart from each other in front midline of neck.

Multiple crescentric shaped bruises present on both lateral side of neck.

The colour of all the bruises is reddish brown"

According to PW5 Dr. Pankaj Mathur, rigor mortis was partially present; both eyes were closed; on opening congunctive congested and few peticheal haemorrhages on lateral canthus of the eye was formed; fine frothly bloodstained material was present over both nostrils and mouth, rest orifices were normal.

According to PW5 Dr. Pankaj Mathur, the death of the deceased was caused due to asphyxia by throttling. Some bruises were also noticed on the neck of the deceased, which according to Dr. Pankaj Mathur, might have been caused by nails. At this stage, a reference may be made to the inquest, which records that there were no injuries on the person of the deceased. According to PW5 Dr. Pankaj Mathur, there were some bruises on the neck, as to why, the same could not be detected in the inquest report? PW6 Hem Chandra has stated that when inquest was prepared, the dead body was got examined by the sister of the appellant, Deepa Devi and since she had told that there were no injury on the person of the deceased, it could not be noted in the inquest. The fact that the deceased died due to asphyxia by throttling is established and proved.

The question is who killed her? PW1 Nand Kishore, father of the deceased has stated that after the marriage, the appellant would harass and torture the deceased in connection with the demand of dowry. It is also stated that appellant used to beat the deceased in an inebriated state. This witness has also categorically stated that the deceased came to her parental house thrice after the marriage and one year before the incident, the deceased gave birth to a baby boy, but inspite of this, accused used to beat her. PW1 Nand Kishore further stated that he used to explain her that appellant is a pampered child and the matrimonial house is the only house of her; on this assurance, deceased used to leave for her matrimonial house.

According to PW1 Nand Kishore, on 22.08.2013 at about 06:00 P.M. he received a telephone call from a person, who introduced himself as son-in-law of Ramesh Chandra and conveyed that Hema Devi is unwell and, again, on the same day, he received a call from telephone number of appellant, by one Ramesh Chandra that deceased Hema Devi is not well and he may inquire from Saliakot. He was waiting for the whole night, but nobody informed him about the wellness of the deceased. According to PW1 Nand Kishore, on 23.08.2013 at about 05:45 A.M. to 6:00 A.M. somebody informed from the phone number of the appellant that his daughter has died. According to him, she was killed by throttling. The appellant did not inform him (PW1) about the death of his wife. His statement was corroborated by the statement of PW2 Parvati Devi and PW3 Nisha. PW4 Vidya Sagar, the uncle of the deceased has also corroborated the factum of harassment and torture, which the deceased had to undergo at the hands of the appellant and also states that hearing the news of death of the deceased, he also went to her matrimonial house where inquest was prepared. This witness has proved his signature on the inquest report.

PW7 Tara Dutt Pandey was the member of Zila Panchayat at the relevant time. He is also a witness of inquest. PW8 Damodar Pandey was the Tehsildar at the relevant time. He also reached at the spot after getting the information and got the inquest report prepared through PW6 Hem Chandra, who is the Investigating Officer of the case and proved all the documents which he prepared.

Prosecution has been able to prove that the death was caused due to asphyxia by throttling and it was caused at the house of the appellant. Appellant was residing there with his mother, sister Deepa and deceased. It was definitely upon the residents of the house to explain as to how the deceased died. This Court cannot give any observation against the mother and sister of the appellant since they have not been chargesheeted, but the fact remains that appellant, who has been charged and convicted by the court below, was also residing in the same dwelling house and deceased was his wife.

In the case of Trimukh Maroti Kirkan vs. State of Maharashtra reported in (2006) 10 SCC 681, the Hon'ble Supreme Court has further interpreted the principle of law as laid down in Mir Mohammad Omar (supra) with regard to the application of Section 106 of the Indian Evidence Act. In its para 13, 14 and 22, it was observed as under:-

"13......................................................................................................................................................................................

These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in Court as they want to keep aloof and do not want to antagonize a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the house should go unpunished.

If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions1 - quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh2). 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. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:

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

Where an 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................ ......."

It is true that for invoking the provisions of Section 106 of the Evidence Act, first and foremost, the prosecution has to prove the case from which an interference may be drawn that there is an important fact, which is within the especial knowledge of the accused. The death was caused in the house of the appellant. It is not the death under normal circumstances. It is the death due to asphyxia by throttling. There is ample 1 1944 AC 315 : (1944) 2 All ER 13 (HL) 2 (2003) 11 SCC 271 : 2004 SCC (Cri) 135 evidence that it is the appellant who used to beat her in an inebriated state and the deceased had complained it on various occasions to PW1 Nand Kishore, PW2 Smt. Parwati Devi, PW3 Nisha and others.

What is argued on behalf of the appellant is that when the death occurred, the appellant was not present in the house at the relevant point of time. In support of his submission, learned counsel for the appellant has referred the evidence of DW1 who has stated that the appellant was working in his field, where the appellant was working as a labourer. The appellant had come to the field at 9:00 in the morning. According to DW1, on that day at about 01:00 P.M. the appellant received a telephone call from his mother conveying him that his wife was not well; after this call, according to this witness, appellant left the field. DW1 Shankar Lal further states that at about 3:00 P.M. to 03: 45 P.M. he also visited the house of the deceased where he found that the deceased was lying on the ground and she had already passed away; froth was oozing from her mouth. Due to the death of his wife, the appellant was in a state of shock and became unconscious. This defence witness also states that the deceased was a patient of epilepsy and the appellant used to cure her by using Bhabhuti (some kind of ashes).

This statement of DW1 Shankar Lal requires little scrutiny. In reply to the question no.16 of the statement under Section 313 of the Code, the appellant stated that he did not throttle his wife. He also states in reply to the question no.23 that his wife was a patient of epilepsy; on the date of incident, he was called by his mother from the field and, on return, he found his wife in an unconscious state, thereafter, according to appellant, he called the person who cures by putting Bhabhuti (some kind of ashes) and the said person assured him that his wife would be recovered from her illness. According to DW1 Shankar Lal, when he reached at the house of the appellant, he found that the wife of the appellant had passed away. It implies that according to DW1 Shankar Lal, he did not assure the appellant that the deceased would be recovered. The statements of the appellant and the DW1 Shankar Lal are contradictory on this aspect. It appears that the appellant has tried to give a false explanation.

A reference may be made to the conduct of DW1 Shankar Lal. This witness does not state that he was called by the appellant in his house. Though, the appellant has stated that he called for the person, who cures with Bhabhuti. If DW1 was not called by the appellant, what was the need or occasion for him to visit the house of the appellant. What is tried to be explained by the appellant is that the cause of the death of the deceased is epilepsy.

Interestingly, DW1 has never stated this fact, which he has disclosed in the court for the first time on 05.08.2015 that the appellant was present in his field at the time of incident. The plea of alibi was taken by the appellant. But, it has not been proved. The explanation which the appellant had tried to give is proved to be false. The deceased did not die on account of epilepsy but she died due to asphyxia by throttling. Appellant normally resides in the house where the deceased was staying. The fact of the cause of death was within the especial knowledge of the appellant. This is a circumstance which definitely invokes the provision of 106 of the Evidence Act. In view of Section 106 Evidence Act, the burden lies on the appellant to explain how the death occurred, which the appellant failed to explain. The only conclusion, which under the facts and circumstances can be drawn, is that it is the appellant who killed his wife, the deceased Hema Devi.

In view of the foregoing discussions, this Court is of the view that the prosecution has been able to prove the charge under Section 302 IPC and the court below did not commit any error in convicting and sentencing the appellant. There is no substance in the appeal. The appeal deserves to be dismissed.

The appeal is dismissed.

Let a copy of this judgment alongwith lower court record be sent to the court below for compliance.