Heera Lal vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J—Heera Lal S/o. Chiman Das along with his wife Usha and daughter Gunjal (P.W.3) aged four years, was residing at House No. 64/187, Mansarovar, Jaipur. Ramchandra (P.W.1) father of the deceased Usha was also residing at Jaipur his address being House No. 12/182 at Malviya Nagar, Jaipur. The case of the prosecution is that on the night of 16.4.2007, the accused-appellant Heera Lal, at his house had murdered his wife Usha by giving merciless beating with glass bottle, lathi and stone etc. It is a case where father Ramchandra (P.W.1), Suresh Kumar Manwani (P.W.2) have not only deposed that the deceased Usha was harassed by her husband being of suspicious in nature, but the neighbours of the accused appellant Heera Lal have also deposed in the court that after hearing shrieks coming out of the house they had informed police at No. 100 and on arrival of police they entered into the house alongwith the police and apprehended the appellant Heera Lal at the place of occurrence itself. The dead body of Usha was lying inside the house and Gunjal (P.W.3) daughter of the appellant aged four years was also standing nearby and her hands and clothes were also stained with blood.

Taking above facts into consideration, the court of Additional Sessions Judge (Fast Track) No. 2, Jaipur City Jaipur, which tried the appellant, vide impugned judgment dated 24.5.2008, pronounced the appellant guilty of offence under Section 302 IPC and sentenced him to undergo life imprisonment and to pay a fine of Rs. 5,000/-, in default of payment of fine to further undergo six months S.I.

Aggrieved against his conviction and sentence, the appellant Heera Lal has preferred the instant appeal through jail. During the pendency of the appeal, Mr. Yogesh Shama filed his power of attorney and when the case became ripe, he has addressed arguments on behalf of the appellant before us.

Ramchandra (P.W.1) on 16.4.2007, presented a written report (Exhibit-P/1) before Veer Singh (P.W.20), who was then posted as SHO, Police Station Mansarovar, Jaipur.

Veer Singh (P.W.20) while appearing in the court as Investigating Officer of the case deposed that on 16.4.2007, he was posted as SHO, Police Station Mansarovar, Jaipur. An information was received from the Control Room that in Sector 64 a fight (Jhagra) had occurred. This witness constituted a police party. The information received from the Control Room was entered in the Daily Diary Register maintained at the police station. The copy of entry made in Daily Diary Register has been proved on record as Exhibit-P/22A. The police party headed by Veer Singh (P.W.20) arrived at the House No. 64/187 and found a dead body of a lady lying in the pool of blood. Along with dead body one person, whose clothes were stained with blood was also standing. The said person disclosed his name as Heera Lal. Lot of people of the colony had gathered there. They disclosed that Heera Lal, whose clothes were stained with blood is husband of the lady. Meanwhile, Ramchandra (P.W.1) arrived at the spot and disclosed that the deceased is his daughter and Heera Lal is his son-in-law. Ramchandra (P.W.1) presented a written report (Exhibit-P/1) at the spot.

In written report (Exhibit-P/1) Ramchandra (P.W.1) father of the deceased Usha averred that his daughter Usha was married with Heera Lal five years ago, and they were residing at House No. 64/187. He had given dowry in the marriage according to his capacity. After few days of the marriage, his son-in-law started harassing and maltreating his daughter. Heera Lal used to beat her daughter. Fed up with the conduct of the accused, his daughter Usha had disclosed all facts to him and his wife. They made lot of efforts to bring Heera Lal on terms, but Heera Lal had not changed himself. Heera Lal used to give beating to his daughter daily. On 16.4.2007, in the night at about 2:30/3:00 AM, he was sleeping in his house at Malviya Nagar, Jaipur, when a neighbour came and relayed the information that son-in-law Heera Lal has committed the murder of daughter Usha. He immediately left his house and came to residential house of his son-in-law. There he found the dead body of his daughter Usha. Ramchandra (P.W.1) further stated in the written report (Exhibit-P/1) that his son-in-law Heera Lal was of suspicious nature. He used to doubt character of his daughter and never permitted her to talk with anybody. He further stated that his daughter Usha in the house of in-laws was also called as Nisha. In written report he further stated that in-laws of Usha were residing separately and Usha was having a daughter aged four years.

The Investigating Officer on the basis of written report (Exhibit-P/1) registered a formal FIR (Exhibit-P/21) bearing No. 144/2007 at Police Station Mansarovar, Jaipur. The Investigating Officer in the presence of independent witnesses prepared description of the dead body vide memo Exhibit-P/3, he prepared inquest report vide memo Exhibit-P/4 and took various articles into possession vide (Exhibit-P/8 to Exhibit-P/12) separate memos. The articles taken into possession included glass bowl, flower pot, pillow cover, bed sheets etc. all stained with bloods. The dead body was sent for post mortem.

Dr. Rajesh Bhargava (P.W.16) on 16.4.2007 at 12:45 PM, at Jaipuriya Hospital conducted autopsy on the dead body and found thirteen injuries on the person of the deceased Usha @ Nisha. The injuries were present on various parts of the body. We need not reproduce the injuries. Suffice it to say that doctor had found fracture of right temporal bone, right parietal bone, occipital bone, left temporal bone and left parietal bone. In the opinion of the doctor, the cause of death was shock due to head injuries. All the injuries were ante mortem in nature.

Dr. Sanjeev Bansal (P.W.8) on the day of occurrence i.e. the day when post mortem was carried had examined the present appellant Heera Lal and as per Injury Report (Exhibit-P/13) had found following two injuries on his person:--

"(i) Laceration, 1" x 0.1", linear muscle deep, lateral 1/3rd just above left eyebrow, simple, blunt.

(ii) Laceration, 1 cm x 0.1 cm, linear horizontal bone deep, right little finger."

The report of investigation under Section 173 Cr.P.C. was submitted. The appellant along with the report of investigation was committed to the court of Sessions and the trial was entrusted to the court of Additional Sessions Judge (Fast Track) No. 2, Jaipur City, Jaipur. The appellant was charged for the offence under Section 302 IPC. He denied the charges and pleaded not guilty and claimed trial. The prosecution in all had examined twenty witnesses and proved on record documents from Exhibit-P/1 to Exhibit-P/45. The statement of the accused was recorded under Section 313 Cr.P.C. The appellant denied all incriminating circumstances put to him and projected that he is innocent and has been falsely implicated. In defence, the appellant examined Anita, his sister as D.W.1, who in the court stated that a tenant residing in a house opposite to the house of the appellant, having committed the murder has falsely implicated the appellant.

Ramchandra (P.W.1) and Suresh Kumar Manwani (P.W.2) father and brother of the deceased, respectively have deposed in the court about the facts that the deceased Usha was married with the appellant Heera Lal five years ago and the appellant used to harass and maltreat the deceased and gave beating on routine basis having suspected fidelity of Usha.

Gunjal (P.W.3) aged four years, daughter of the appellant Heera Lal stepped into the witness box. The trial Judge by asking various questions verified her competence to depose as witness and having satisfied himself permitted her to depose in the court. This witness stated that her father on the day of occurrence had caused injuries to her mother with lock, scissor, Lathi and glass bottle. On the questions asked by the defence, the witness reiterated that the accused appellant had caused injuries to her mother and thus, the defence could not cause any dent in her testimony.

Prahlad (P.W.5) is the neighbour of the appellant Heera Lal. This witness in the court stated that he was sleeping in his house. His wife came and told him that from the opposite house noise of Bachao-Bachao is coming. This witness dialed No. 100. Police came and got the door of the house opened and apprehended the accused appellant Heera Lal at the spot. From the spot a scissor, salt, glass bottle and other articles were recovered.

Rajkumar Kukreja (P.W.9) is the another neighbour of the appellant Heera Lal. This witness deposed in the court that from the last three years he was staying in the adjoining house. Number of house of accused was 64/187 wherein the accused appellant was living with his family. On hearing noise of Bachao-Bachao, he came and knocked the door of the house of the appellant. Someone informed the police at No. 100. Within ten minutes the police arrived at the spot. The police peeped into the house and said that the accused is making effort to burn his wife. Then police broke the window pane and got the door opened. Inside the house daughter of the appellant was found under the grip of fear. The accused Heera Lal was also standing there and his hands were stained with blood.

Pradeep Kumar (P.W.10), Rita (P.W.14) and Rakesh Kumar (P.W.15) are also neighbours who have deposed to similar effect.

We have heard the Mr. Yogesh Sharma assisted by Mr. Lalit Sharma appearing for the appellant and Mr. Alladdeen Khan, the learned Public Prosecutor.

Mr. Yogesh Sharma the learned counsel for the appellant has urged that the appellant Heera Lal has been falsely implicated. In fact, the murder was committed by a neighbour and the appellant has been made a scapegoat. He has drawn our attention to the testimony of Anita (D.W.1), who had stated that the deceased Usha had turned her mother-in-law out of the house and she was not a good daughter-in-law.

We are not convinced with the arguments raised by the learned counsel for the appellant. It has come in the testimony of Ramchandra (P.W.1) and Suresh Kumar Manwani (P.W.2) father and brother of the deceased Usha, respectively, that the appellant Heera Lal used to beat his wife. There is no denial of the fact that the appellant was residing in house No. 64/187 along with his wife and daughter. The said house was exclusively in his possession from where the dead body was found. The appellant was arrested at the spot, immediately after the murder was committed. Neighbours of the appellant have deposed in categoric terms that having heard the shrieks and cries coming out of the house, they have dialed No. 100. It is also evident from the entry (Exhibit-P/22A) made at the police station that Control Room had informed the police that in house No. 64/187 some fight (Jhagra) is taking place. In the presence of neighbours, when police entered into the house, near the dead body daughter of the appellant was standing. The appellant was arrested from the spot and his clothes were stained with blood. On the same day, the appellant was also examined by doctor and two injuries have been found on his person, which depict struggle on the part of the deceased. The deceased Usha has suffered thirteen injuries and five fractures on the skull. She had died due to violence. Gunjal (P.W.3) daughter of the appellant has deposed against his father, the appellant Heera Lal. Even if we give credence to the arguments raised by counsel for the appellant that the four years child being tutored cannot be relied, there is no escape from the fact that immediately after the murder, along with the dead body of Usha, the appellant was arrested. His clothes were stained with blood and he was having injuries on his person. Further, the dead body has been found from the house which is exclusively in possession of the appellant. It is for the appellant to explain as to how his wife died in the night when nobody else was in the house. The police by opening the door had entered into the house and found the appellant alone with the dead body. Thus, the appellant alone had special knowledge as to how his wife had died, thus, presumption under Section 106 of Indian Evidence Act is attracted. In statement under Section 313 Cr.P.C., the accused appellant has given no explanation as to how his wife Usha had died, due to injuries caused inside the house, in his possession.

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. 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.

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.

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 Shambu Nath Mehra Vs. The State of Ajmer, AIR 1956 SC 404 : (1956) CriLJ 794 : (1956) 1 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."

In a specific instance in Trimukh Maroti Kirkan Vs. State of Maharashtra, (2007) CLT 471 Supp : (2007) CriLJ 20 : (2006) 2 DMC 757 : (2006) 9 JT 50 : (2006) 10 SCALE 190 : (2006) 10 SCC 681 : (2006) 8 SCR 156 Supp : (2006) 148 STC 638 , 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 Vs. State of Maharashtra, (1992) CriLJ 1545 : (1992) 2 Crimes 161 : (1993) 1 DMC 326 : (1992) 2 JT 592 : (1992) 1 SCALE 811 : (1992) 3 SCC 106 : (1992) 2 SCR 502 , 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 Vs. State of Maharashtra, (2007) 1 DMC 732 : (2007) 5 SCALE 350 : (2007) 10 SCC 445 : (2007) 4 SCR 248 , 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 Vs. State of Madhya Pradesh, (2009) 9 SCC 495 , 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 and Others Vs. State of Haryana, AIR 2013 SC 3395 : (2013) CriLJ 4058 : (2013) 4 JCC 137 : (2013) 10 JT 515 : (2013) 3 RCR(Criminal) 916 : (2013) 9 SCALE 544 : (2013) 14 SCC 420 , 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 State of West Bengal Vs. Mir Mohammad Omar and Others etc., AIR 2000 SC 2988 : (2000) CriLJ 4047 : (2000) 9 JT 467 : (2000) 6 SCALE 148 : (2000) 8 SCC 382 : (2000) 2 SCR 712 Supp : (2000) AIRSCW 3230 : (2000) 6 Supreme 172 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, in view of the latest law propounded in the case of Thakur Singh''s case (supra), we find that the trial Court has rightly held that inference is to be drawn against the appellant and, therefore, it will be appropriate to affirm the conviction and sentence of the appellant.

Consequently, for the valid reasons recorded by the trial Court, we find no merit in the present appeal and the same, being devoid of merit is, hereby, dismissed, while affirming the conviction and sentence of the appellant, recorded by the trial Court.