Kumer Singh vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J—Kumar Singh son of Ramjilal has preferred the present appeal through Jail to assail the impugned judgment dated 26.5.2008 whereby he was held guilty of committing murder of his wife Shakuntala with knife on the intervening night of 21.6.2007 and 22.6.2007 at about 2.30 A.M. at his residence situated at Village Sikandara, P.S. Bayana, District Bharatpur. Appellant has also prayed that the order of even date whereby he was sentenced to undergo life imprisonment under Section 302 IPC and to pay a fine of Rs. 2000/-, in default thereof to undergo six months simple imprisonment, be also set aside.

Draupadi (P.W. 4) and deceased Shakuntala being sisters were married with two brothers namely Heti Ram and the present appellant Kumar Singh respectively. On 22.6.2007, Prahlad Singh (P.W. 11) presented the written report (Ex. P.10) before the SHO, P.S. Bayana. The said report (Ex. P.10) when translated into English reads as under:-

"To,

The SHO, P.S. Bayana.

Sub.: Lodging of the FIR.

Sir,

It is submitted that today on 22.6.2007 I was in my village Aruva. At about 6.00 AM my sister Drop whose matrimonial home is also at Sikandara, by way of telephone informed on my mobile that in the night younger sister Shakuntala who was present in the matrimonial home has been murdered by her husband Kumar Singh by chopping of her neck. The dead body is lying in the Chhappar of the house. Kumar Singh after causing murder has decamped from the spot. Upon receipt of information, I alongwith my father Shri Cheti Ram, Tau (elder brother of father) Ganeshi, brother Jitendra and Mehendra etc. reached Sikandara. We went to the house and saw that the dead body of my sister was lying in the Chhappar of the house. Her neck has been sliced. Elder sister Drop informed that since yesterday evening Kumar Singh was quarreling and giving beating to his wife and due to fear, I had slept in nearby house. Her husband had also gone to Alwar. At 2.30 AM in night, she heard cries of Shakuntala. But due to fear, she had not gone there. In the morning she went there and had found the dead body of Shakuntala.

Therefore, it is submitted that my sister has been murdered by her husband. Therefore, this information is furnished to you and hence, legal action be taken.

Sd/- Prahlad Singh S/o. Shri Cheti Ram, Caste Jatav, r/o. Aruva, Tehsil Kathoomar, Dist. Alwar 22/6/07"

On the basis of above written report (Ex. P.10), formal FIR (Ex. P.11) bearing FIR No. 315/2007 was registered at P.S. Bayana, District Bharatpur.

Dr. Bharat Lal Meena (P.W. 9) had conducted autopsy on the dead body of Shakuntala. As per Dr. Meena (P.W. 9), in the post-mortem report (Ex. P.9), he had noted the following injuries on the person of Shakuntala, wife of the present appellant:-

Dr. Meena (P.W. 9) in cross-examination stated that due to cutting of neck, neurological shock had developed. The doctor has opined that the cause of death was excessive bleeding.

Prahlad Singh (P.W. 11) complainant brother of Shakuntala deceased and Draupadi (P.W. 4) appeared in court as witnesses. Prahlad Singh (P.W. 11) stated that his two sister Draupadi and Shakuntala were married fifteen years ago in Village Sikandara. Draupadi was married with Het Ram and Shakuntala was married with Kumar Singh. Kumar Singh used to harass and beat her sister. On 22.6.2007 in the morning at 5.00-5.00 AM he received a telephonic call from her sister that Kumar Singh had murdered Shakuntala. On this information, he alongwith Babulal, one master all came to Sikandara. From his village Aruva, other people also came in a vehicle. He went to the spot and saw that neck of his sister Shakuntala was sliced and blood was coming out. The witness stated that Draupadi had told him that in the evening Kumar Singh had an altercation with his wife Shakuntala. The witness proved various documents including presentation of written report (Ex. P.10), inquest (Ex. P.3), memo taking of dead body into possession (Ex. P.4) and memo (Ex. P.6) whereby blood stained soiled and controlled soil were taken into possession. The witness also attested memo (Ex. P.7) whereby the police had taken into possession clothes of the deceased.

Cheti Ram (P.W. 1) is father of the deceased. He had deposed regarding maltreatment caused to Shakuntala. The witness has stated that Kumar Singh, present appellant, under the influence of liquor used to give beating to his daughter Shakuntala.

Madan Lal (P.W. 2) in court stated that he is not aware as to how the quarrel had taken place. Upon receipt of information that Shakuntala has been murdered, he had gone to the village of the accused.

Constable Mohan Singh (P.W. 3) had witnessed the memo (Ex. P.1) whereby knife was recovered. He had also attested the site plan (Ex. P.2) of the place from where knife was recovered.

Ganeshi (P.W. 5) has also stated that upon receipt of information they had gone to the house of the accused. When they reached there they found that the dead body was lying in the Chhappar.

Constable Ramesh Chand (P.W. 6) has witnessed the memo (Ex. P.8) whereby accused was arrested.

Jeetendra (P.W. 7) is another brother of deceased. He has supported the version given by Prahlad Singh (P.W. 11).

Mahendra Singh (P.W. 8) also stated that Shakuntala was his elder sister and accused under the influence of liquor used to beat her.

Virendra Singh (P.W. 10) being investigating officer has proved various facets of investigation.

Constable Mahendra Singh (P.W. 12) has proved Exhibit-P.1 whereby knife was recovered alongwith the site plan (Ex. P.2) of the place from where recovery was affected.

Sunder Singh (P.W. 14) has proved arrest of the accused-appellant.

Constable Sauran Singh (P.W. 15) had carried sealed packets to the Forensic Science Laboratory.

Bihari Lal (P.W. 16) has proved various facets of investigation.

The prosecution case rests upon the testimony of witness Smt. Draupadi (P.W. 4). She is a star witness of the prosecution. This witness stated that she and Shakuntala were married in the same house. Kumar Singh was his Dewar. Kumar Singh was not keeping her sister well. Kumar Singh and his sister will keep cordial relations for 2-3 months well, but thereafter he used to quarrel with Shakuntala after consuming liquor. Kumar Singh in the evening of the occurrence came to the house under the influence of liquor. Her husband was not present in the house. Her husband had gone to Alwar. She slept in the house of aunt of the husband (Chachiya Saas). In the night she heard cries of her sister. She went running to the house of sister and found that accused appellant had made her sister fall on the ground and was causing knife blows. Her sister died in her matrimonial home.

After the prosecution concluded its evidence, statement of the accused was recorded under Section 313 Cr.P.C. All incriminating evidence was put to the appellant. He denied the same and pleaded that he is a victim of false implication.

We have heard Ms. Rajesh Kandwal, learned Amicus Curiae for the appellant, and Shri Aladeen Khan, learned Public Prosecutor.

Ms. Rajesh Kandwal, learned Amicus Curiae, has extensively referred to the cross-examination of Draupadi (P.W. 4) in which she had stated that she became unconscious. Learned counsel has referred to the admission made by Draupadi (P.W. 4) wherein she stated that when her statement was recorded when she regained conscious. It is contended that Draupadi had not witnessed the occurrence and she came in the morning and found the dead body in the house.

Draupadi (P.W. 4) is real sister of Shakuntala, deceased wife of the appellant. Dead body of Shakuntala having injuries with incised weapon on neck was found inside the house of the accused-appellant. Draupadi (P.W. 4) being married to another brother of the accused was also staying in the same house. Draupadi (P.W. 4) has stated in court that the accused under the influence of liquor, used to beat the deceased and on the date of occurrence, accused came under the influence of liquor. After hearing cries of her sister, she reached at the spot and found that accused Kumar Singh had thrown her sister on the floor and was causing injuries to her with a knife. When she tried to intervene, the accused had given her a push. We do not find any reason to discard the testimony of Draupadi (P.W. 4). Her presence at the spot is natural and probable. Draupadi (P.W. 4) being lady of the house was expected to be present in the house. She was attracted t the place of occurrence after hearing shrieks of her sister. When she went there she found that accused was causing her injuries. In these circumstances, we shall place our implicit reliance upon the testimony of Draupadi (P.W. 4). She has been duly corroborated by her relations including parents about the habits of the accused. They have stated that the accused under the influence of liquor used to give beating to his wife. Cheti Ram (P.W. 1) father of the deceased has specifically stated that the accused under the influence of liquor used to beat his daughter.

For sake of argument, even if we ignore testimony of Draupadi (P.W. 4) and hold that she was not present in the house, then also dead body has been found inside the house of appellant. It has come in evidence that appellant and his wife were in the house on the fateful night. How Shakuntala died it was for the appellant to explain. Special circumstances in his knowledge reuse presumption under Section 106 of the Indian Evidence Act.

Since in the present case murder has been caused in the house of the appellant, it was for him to explain as to how his wife had died. Besides the statement of Draupadi (P.W. 4), Section 106 of the Indian Evidence Act is attracted in the facts and circumstances of the present case.

Recently, the Hon''ble Apex Court in State of Rajasthan Vs. Thakur Singh, (2014) AIRSCW 4479 : (2014) 8 JT 50 : (2014) 8 SCALE 82 has held 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 al 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.

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 to lowing 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 we l 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 it was 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 we l 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."

Taking totality of the circumstances, we find no merit in the instant appeal. Thus, we find no error or illegality in the conviction and sentence awarded by the trial court to the accused-appellant.

Consequently, the appeal stands dismissed. However, we order that benefit of Proviso to Section 428 Cr.P.C. shall accrue to the appellant and the sentence undergone by him during investigation or as an under trial shall be set off while computing duration of life imprisonment.