Mangeram vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J—In the instant case, the appellant, Mangeram son of Sajjan Singh resident of Kuhadwas, Police Station, Buhana, District Jhunjhunu, has been convicted by the Court of Additional Sessions Judge, Khetri (Rajasthan), vide its impugned judgment dated 28.03.2006, for committing murder of his father-in-law, namely Dharamveer on the intervening night of 26th & 27th of July, 2004 in the courtyard of his house.

The criminal proceedings, in the present case, were set into motion on the basis of written-report (Exhibit-P/5) presented by Ramkumar (PW-8), the elder brother of deceased, Dharamveer, before Rajkumar (PW-6), who was then posted as Sub-Inspector, Police Station, Kotwali Jhunjhunu.

The said written-report (Exhibit-P/5), when translated into English reads as under:--

"To,

The Incharge, Police Station, Buhana,

Sir,

It is submitted that I Ramkumar son of Baldaram is resident of Chima-ka-bas, Panchayat Beral, Police Station Surajgarh, District Jhunjhunu. On 25.07.2004 my brother, Dharamveer came to Kuhadwas. Here daughter of my brother was married. On 26.07.2004 at 03:00 A.M., Satyaveer son of Mukhtar came to my field and woke me up. At that time, my wife was sleeping along with me. Satyaveer told me that my brother had suffered severe injury, I should go and take care of my brother. I, along with the wife of my brother came to the place of occurrence. He has suffered injury of kulhari (axe). My brother, Dharamveer was lying dead. I asked Satyaveer as to who had caused injury, he informed that your son-in-law, Mangeram had caused injury. The report is presented. Action be taken.

Applicant Ramkumar

resident of Ramkumar son of Balaram, Village Chima-ka-bas, Police Station Surajgarh.

Dated: 27.03.2004."

On the basis of above said written-report (Exhibit-P/5), a formal First Information Report (Exhibit-P/6) bearing registration No. 189/2004, was registered at Police Station, Buhana, District Jhunjhunu.

In the head-note of impugned First Information Report, time of occurrence has been given as 03:00 A.M. i.e. on the intervening night of 26th & 27 of July, 2004, First Information Report was registered on 27.07.2004 at 12:40 P.M. and the special report reached at Illaqa Magistrate on 28.07.2004 at 11:30 A.M.

The Investigating Agency, after a thorough investigation, presented charge-sheet against the appellant, Mangeram. The appellants, along with the report of investigation was committed to the Court of Sessions for trial and the trial was entrusted to the Court of Additional Sessions Judge, Khetri.

The trial Judge, having convicted the appellant for commission of offence punishable under Section 302 of Indian Penal Code, vide a separate order of even date, sentenced him to undergo life imprisonment and to pay a fine of Rs. 1000/-. In default of payment of fine to further undergo six months additional simple imprisonment.

Aggrieved against the conviction and sentence, the appellant has preferred instant appeal, under Section 374 of Code of Criminal Procedure, 1973, in order to assail his conviction and sentence.

In the present case, the prosecution agency, during trial, had examined, in all eleven-witnesses and also proved on record twenty-seven documents, being Exhibit-P/1 to Exhibit-P/27-A respectively.

The statement of accused was recorded under Section 313 of Code of Criminal Procedure, 1973. He denied all the incriminating evidence put to him, pleaded innocence and took a stand that he has been falsely implicated.

In defence, accused had not examined any witness.

Dr. Radheyshyam Sharma (PW-5) on 27.07.2004 being a Member of the Medical Board, along with Dr. Bhagwan Singh Somra and Dr. Suman Choudhary, Medical Officers, Community Health Centre, Buhana, on the request made by Police had conducted autopsy on the dead-body of Dharamveer S/o. Balaram.

In the Post Mortem Report (Exhibit-P/4), Doctor had found following incised wound on the person of deceased:--

"Incised wound 14 cm x 2 cm x 4 cm over scalp right parietal temporal region with fracture of right parietal temporal bones. Brain matter coming out of cranial cavity."

On internal examination, Doctor found that membranes of the brain were congested. Brain matter was coming out of skull and congested.

As per opinion of the Medical Board, cause of death was coma resulting from injury to head and brain.

Satyaveer, who had informed complainant, Ramkumar (PW-8) appeared in the witness-box as PW-1. This witness stated that on 26.07.2004 at about 10:00 AM., Dharamver, deceased/father-in-law of accused, Mangeram came to the house and asked his daughter as to where is your father. At that time, witness (PW-8) was at the well for switching sprinkler''s. When Satyaveer returned home, he asked deceased, Dharamveer the purpose of his visit. Dharamveer replied that he had come to take some money from Mangeram. Thereafter, Dharamveer went to the house of Mangeram, which was situated at a distance of 100 feet from the house of the witness, (Satyaveer PW-1). On 27.07.2004 in the morning, Mangeram and his father-in-law Dharamveer, deceased went to Village Kuhadwas. In the evening, they returned to the house of Mangeram. After taking his meals, Dharamveer retired to bed in the courtyard. Accused, Mangeram was present in his house at 09:30 P.M. His maternal uncle, Satyendra was sitting with him. At 12:30 AM. Mangeram came to the house of Rajesh, maternal uncle , woke him up and informed that he had given incised injury to his father-in-law. Thereafter, Mangeram ran away from the spot. Rajesh came to the house of Satyaveer, upon which Satyaveer went to the house of Mangeram and saw the dead-body of Dharamveer. He had suffered injury on the right side of the head and the neck. He was lying in the pool of blood. Satyaveer went to the house of deceased at Village Chima-ka-bas and informed Ramkumar that Mangeram, after causing injury to his brother, Dharamveer had decamped from the spot. In the morning at 06:00 AM., Darshna, wife of deceased, Ramkunwar, brother of deceased and son of the deceased came in a Jeep. They had not submitted any report. They saw the dead-body and went away from the spot. Later, this witness stated that they submitted report to the Police. The witness stated that the alliance of the daughter of Dharamveer with Mangeram was solemnized through him. Lastly, this witness stated that Dharamveer was his i.e. brother of the father-in-law, whereas the accused Mangeram is his real nephew.

Smt. Darshana (PW-2), is wife of the deceased. She has stated that five/seven months before the occurrence, her daughter was married with Mangeram at Kuhadwas. Her husband had visited his son-in-law, Mangeram. Mangeram had murdered him by causing injury with kulhari (axe). She was informed about the alleged occurrence by Ramkunwar, elder brother of the husband. Lastly, this witness stated that she, along with elder brother of her husband came to the house of the accused where her husband was lying murdered and injury has been caused on his head and neck.

In cross-examination, this witness stated that her husband had left the house on 25.07.2004.

Rajesh, maternal uncle of the accused before whom he had allegedly made an extra-judicial confession in the Court appeared as PW-3 and stated that he is not aware about the occurrence. This witness was declared hostile to the prosecution and was confronted by the learned Public Prosecutor with her previous statement recorded by the Police.

Ramkunwar (PW-8), elder brother of the deceased stated that on 25.07.2004 his brother, Dharamveer came to Village Kuhadwas. Daughter of Dharamveer was married with Mangeram at Kuhadwas. On 26.07.2004 in the night at 03:00 A.M. Satyaveer came from Kuhadwas and informed that your brother has suffered severe injury. On enquiry, he found out that injury was caused by Mangeram. In the morning, he along with the wife of deceased reached Kuhadwas and found that Dharamveer was lying dead. Injury was on his head. He made a telephonic call at Surajgarh. They in turn informed at Buhana Police Station. This witness had presented written-report (Exhibit-P/5) to the Investigating Officer. Site-plan (Exhibit-P/7) was prepared in his presence. Police had lifted blood stained and controlled soil (Exhibit-P/10 and Exhibit-P/11). Police had also taken into possession lungi (loincloth) of the deceased vide Exhibit-P/12. Police had also taken into possession cot and bedspread vide Exhibit-P/13. Police had also taken into possession chappal (sandal) of the deceased vide Exhibit-P/14. The accused got recovered kulhari, the weapon of offence vide recovery memo Exhibit-P/17. Thereafter, Police had handed over dead-body to Ram Kunwar (PW-8).

Baldev (PW-11) stated that he is an agriculturist. On 27.07.2004 upon information given by Satyaveer that Mangeram had murdered Dharamveer, he along with Ramkumar, Darshna, wife of deceased and Jaswant, Master came to the house of Satyaveer at Kuhadwas. They had seen dead-body of Dharamveer in the house of Mangeram. Mangeram was married with the daughter of Dharamveer. This witness also proved recoveries made from the spot. He stated that site-plan (Exhibit-P/7) was prepared in his presence. He attested inquest (Exhibit-P/9). Police had taken blood stained and controlled soil into possession vide memo Exhibit-P/11 and Exhibit-P/12. Police had also taken into possession blood stained lungi (loincloth) of the deceased vide memo Exhibit-P/12. Police had also taken into possession bedspread vide memo Exhibit-P/13 and chappal (sandal) of the deceased vide memo Exhibit-P/14. Lastly, this witness stated that accused got recovered one kulhari (axe) from his house, which he had concealed in a pit.

Jaswant Singh (PW-7) had also corroborated the testimony of Baldev (PW-11) regarding recovery effected from the spot.

Omprakash (PW-4) stated that he was posted as Constable at Police Station, Buhana. He deposited eight sealed packets, received from Incharge, Malkhana, to the State Forensic Science Laboratory, Jaipur.

Mahipal Singh (PW-9), being In-charge of Malkhana, deposed regarding receipt of the samples and handing over the same to Omprakash (PW-4) for onward deposit to State Forensic Science Laboratory.

Omprakash (PW-4) and Mahipal Singh (PW-9), both were examined to prove the link evidence and stated that so long sealed samples remained in their possession, they were not tempered with.

Sunil Kumar (PW-11), being photographer had taken photographs of the spot.

Mr. Biri Singh Sinsinwar, the learned senior counsel, duly assisted by Mr. Rajesh Choudhary, the learned counsel appearing for the accused-appellant, has submitted that both the witnesses, namely Satyaveer (PW-1) and Rajesh (PW-3) are real maternal uncles of the accused, Mangeram.

It has been further submitted by the learned senior counsel that Satyaveer (PW-1) had not seen the occurrence and Rajesh (PW-3), the brother of deceased had informed him that Mangeram had made a confession before him that Dharamveer, his father-in-law has been murdered by him in the house of the accused.

The learned senior counsel has urged that the testimony of Satyaveer (PW-1) is inadmissible in evidence. He is neither eye-witness of the occurrence nor any confession was made to him. This deposition is based on information as to what was relayed to him by Rajesh (PW-3). Thus, his entire testimony is based on hearsay evidence.

Contention of the learned senior counsel is that once Rajesh (PW-3) had turned hostile to the prosecution, there is no evidence with the prosecution to infer that the offence has been committed by the appellant.

However, during the course of arguments, learned senior counsel could not dislodge the fact that the dead-body has been found in the courtyard of the house of the accused, to counter this, learned senior counsel has relied upon the case of Shantabai and Others Vs. State of Maharashtra, AIR 2008 SC 1571 : (2008) CriLJ 2048 : (2008) 3 JT 130 : (2008) 3 SCALE 325 : (2008) AIRSCW 1735 , to contend that merely because dead-body was found in open space in front of house of the accused, it is not sufficient to draw inference under Section 106 of the Indian Evidence Act against the appellant.

We are not impressed with the arguments raised by the learned senior counsel appearing for the accused-appellant.

We have seen site-plan (Exhibit-P/7), wherein dead-body has been found at place marked ''X''. We have also seen the photographs (Exhibit-P/28-A to Exhibit-P/33-A respectively. The dead-body admittedly is in front of the house of accused. The deceased is father-in-law of the accused.

It has come in the evidence that Satyaveer (PW-1), maternal uncle of the accused, that Dharamveer, being father-in-law, had gone to the house of accused i.e. his son-in-law.

The trial Judge to record the conviction of the appellant, in the impugned judgment, had observed as under:--

Having held that the accused has not taken any stand and has not given any information in the statement recorded under Section 313 Cr.P.C., as to how the deceased had died in the house.

The trial Judge further concluded as under:--

In the present case, the accused and deceased were together. The deceased had died in the house of his son-in-law. The accused had a special information as to how he has died and, thus, it was incumbent for him to dislodge the presumption under Section 106 of the Indian Evidence Act.

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.

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."

Furthermore, 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.

1106. 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.