Nand Kishore @ Nandu vs State Of Madhya Pradesh

Appellant has filed this appeal against the judgment dated 11.11.2008 passed by the Sessions Judge Harda, District Harda in Sessions Trial

No.64/2008, whereby the appellant was prosecuted for commission of offence punishable under Section 302 of Indian Penal Code and awarded

sentence of life imprisonment with fine of Rs.1000/- with default stipulation.

Prosecution story in brief is that the appellant and deceased who was the wife of the appellant used to drink liquor and there was quarrel between

the appellant and deceased. On the date of incident since 7 O’clock in the evening quarrel was going on between the appellant and deceased. The

appellant had beaten the deceased and the deceased was lying in the courtyard of the house. The appellant left the house in the morning. Neighbors

witnessed dead body of the deceased lying in the courtyard. Thereafter the report was lodged at the Police Station Chhipavad, District Harda. Police

conducted investigation and filed charge sheet. The appellant abjured his guilt during trial and pleaded innocence. Trial Court held the appellant guilty

and awarded sentence as mentioned above.

Learned counsel for the appellant has submitted that the conviction of the appellant is based on circumstantial evidence. The evidence is not

sufficient to hold the appellant guilty beyond reasonable doubt for commission of offence.

Learned counsel appearing on behalf of the State has submitted that the appellant was present in the house. There is evidence of quarrel between

the appellant and deceased. He left the house after killing the deceased who was his wife. He did not offer any explanation. There is seizure of

clothes. Hence, the trial Court has rightly held the appellant guilty and awarded sentence.

Smt. Rukhmani Bai (PW1) is the neighbor of the appellant, shedeposed that on the date of incident the quarrel was going on between the appellant

and deceased since 7 O’clock in the evening. I heard the quarrel, thereafter, I was sleeping in the house. In the morning, I witnessed dead body of

the deceased. Appellant was not present in the house. The police came at the place and had taken my signature and I signed Dehati Nalisi (Ex.P/1).

Gulbi Bai (PW/2) also deposed that in the night, the appellant and deceased quarreled after drinking liquor and in the morning I noticed dead body of

the deceased. The appellant and deceased used to quarrel with each other.

Vikas (PW/3) he is the son of the appellant and deceased. He deposed that appellant and deceased both used to drink liquor. There is to be quarrel

between the appellant and deceased. Appellant had beaten the deceased by wooden stick and his cross-examination he deposed that he did not

witness the incident.

Mishri Lal (PW/4) also verified the fact that there was a quarrel between the appellant and deceased at about 08.00 pm and I heard the sound of

quarrel. Bhagirathi Bai (PW/5) deposed the same facts that there was a quarrel between the appellant and deceased and I had heard sound of

quarrel.

Ghasiram (Kotwar) PW/6 lodged the report at the police station. He admittedly signature on Ex.P/4 Marg Intimation and Ex.P/5 spot map prepared

by the police.

From the evidence of the witnesses mentioned above, this fact has been proved that the appellant was in the house on the date of incident. There

was quarrel between the appellant and deceased. The appellant ran away from the place and when neighbors witnessed the dead body of the

deceased appellant was not there. The body of the deceased was found in the house of the appellant.

S.D. Mule (PW/10) verified the facts that report Ex.P/4 was lodged. Thereafter, he prepared the spot map. He further deposed that I seized plain

earth and red earth from the place of incident vide seizure memo Ex.P/13. On the memorandum of the appellant wooden stick was seized. The blood

stained shirt which was worn by the appellant at the time of incident was seized vide Ex.P/12.

Dr. Kishore Kumar (PW/7) performed postmortem of the deceased, deposed that I notice following injuries on the person of the deceased:-

Swelling and contusion over fore head right side just lateral to mid line obliquely placed of 2â€​ x 1/2â€​ .

Swelling and contusion over left eye brow and upper eye lid to forehead medially of 3â€​ x 1/2â€​.

Nose is depressed and nasal septum.

Lacerated wound over chin of 2â€​ x 1/2â€​ x bone deep horizontally placed.

Swelling over right hand of 3â€​ x 3â€​.

Multiple abrasions over right elbow and forearm.

Swelling over left hand of 5â€​ x 4â€​.

Contusion over back right infra scapular region of 8â€​ x 7â€​.

Diffuse contusion over right thigh of 16â€​ x 8â€​.

Reddish abrasions (multiple) over right knee.

Swelling and reddish contusion over right leg tibial surface of 3â€​ x 3â€​.

Contusion over left leg laterally of 5â€​ x 4â€​.

Contusion over left knee.

Five contusions over left thigh of 6â€​ x 1â€​.

Lacerated wound over lower lip of 1/2â€​x 1/2â€​x 1/2â€​.

Vagina tear at 6 O’clock position.

As per FSL report on the shirt which was seized from the possession of the appellant blood stains were found.Â

The Apex Court in the case of Trimukh Maroti Kirkan Vs. State of Maharashtra (2006) 10 SCC 681 has held as under in regard to presence of

the accused in the house in the case of murder of wife and the provision of Section 106 of the Evidence Act;

“14. 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 Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab vs. Karnail Singh (2003) 11

SCC 271). 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 offence like murder is committed insecrecy inside a house, the initial burden to establish the case would undoubtedly be upon the

prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of

circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a

corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot

get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the

prosecution and there is no duty at all on an accused to offer any explanation.

A somewhat similar question was examinedby this Court in connection with Section 167 and 178-A of the Sea Customs Act in Collector of

Customs, Madras & Ors. v. D. Bhoormull AIR 1974 SC 859 and it will be apt to reproduce paras 30 to 32 of the reports which are as under :

“30. It cannot be disputed that in proceedings for imposing penalties under Clause (8) of Section 167 to which Section 178-A does not apply, the

burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal

proceedings, where there is no statutory provision to the contrary. But in appreciating its scope and the nature of the onus cast by it, we must pay due

regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required

to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and as Prof. Brett

felicitously puts it - ''all exactness is a fake"". El Dorado of absolute proof being unattainable, the law, accepts for it, probability as a working substitute

in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of

probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof; often it

is nothing more than a prudent man's estimate as to the probabilities of the case.

The other cardinal principle having animportant bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be

considered - to use the words of Lord Mansfield in Blatch v. Archer (1774) 1 Cowp. 63 at p.65 ""according to the proof which it was in the power of

one side to prove, and in the power of the other to have contradicted"". Since it is exceedingly difficult, if not absolutely impossible for the prosecution

to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden.

Smuggling is clandestine conveying ofgoods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive

Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person

concerned in it. On the principle underlying Section 106, Evidence Act, the burden to establish those facts is cast on the person concerned; and if he

falls to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by

the prosecution or the Department would rebut the initial presumption of innocence in favour of that person, and in the result prove him guilty. As

pointed out by Best (in Law of Evidence, 12th Edn. Article 320, page 291), the ""presumption of innocence is, no doubt, presumptio juris; but every

day's practice shows that it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of stolen

property"", though the latter is only a presumption of fact. Thus the burden on the prosecution or the Department may be considerably lightened even

by such presumption of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded

against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will only

alleviate that burden to discharge which very slight evidence may suffice.â€​ (Emphasis supplied)

The aforesaid principle has been approved andfollowed in Balram Prasad Agrawal v. State of Bihar & Ors. AIR 1997 SC 1830 where a married

woman had committed suicide on account of ill- treatment meted out to her by her husband and in-laws on account of demand of dowry and being

issueless.

The question of burden of proof where somefacts are within the personal knowledge of the accused was examined in State of West Bengal v. Mir

Mohammad Omar & Ors. (2000) 8 SCC

In this case the assailants forcibly dragged the deceased Mahesh from the house where he was taking shelter on account of the fear of the

accused and took him away at about 2.30 in the night. Next day in the morning his mangled body was found lying in the hospital. The trial Court

convicted the accused under Section 364 read with Section 34 IPC and sentenced them to 10 years RI. The accused preferred an appeal against their

conviction before the High Court and the State also filed an appeal challenging the acquittal of the accused for murder charge. The accused had not

given any explanation as to what happened to Mahesh after he was abducted by them. The learned Sessions Judge after referring to the law on

circumstantial evidence had observed that there was a missing link in the chain of evidence after the deceased was last seen together with the

accused persons and the discovery of the dead body in the hospital and had concluded that the prosecution had failed to establish the charge of murder

against the accused persons beyond any reasonable doubt. This Court took note of the provisions of Section 106 of the Evidence Act and laid down

the following principle in paras 31 to 34 of the reports :

The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as

though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the

rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the

offenders in serious offences would be the major beneficiaries and the society would be the casualty.

In this case, when the prosecutionsucceeded in establishing the afore-narrated circumstances, the court has to presume the existence of certain

facts. Presumption is a course recognised by the law for the court to rely on in conditions such as this.

Presumption of fact is an inference as tothe existence of one fact from the existence of some other facts, unless the truth of such inference is

disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When

inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the

most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It

empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the

common course of natural events, human conduct etc. in relation to the facts of the case.

When it is proved to the satisfaction ofthe court that Mahesh was abducted by the accused and they took him out of that area, the accused alone

knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process

would enable the court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the

court what else happened to Mahesh at least until he was in their custody.

Applying the aforesaid principle, this Court while maintaining the conviction under Section 364 read with Section 34 IPC reversed the order of

acquittal under Section 302 read with Section 34 IPC and convicted the accused under the said provision and sentenced them to imprisonment for life.

In the present case also this fact has been proved that the appellant was present in the house in the night. There was a quarrel between the

appellant and deceased. The appellant is the husband of the deceased. He left the house in the night. The family members witnessed the dead body of

the deceased lying in the courtyard. On the shirt, which was seized from the possession of the appellant blood stains were found. He did not offer any

explanation about the aforesaid act.

In view of the aforesaid evidence on record and principle laid down by the Apex Court, in our opinion, in such circumstances, the trial Court has

rightly held the appellant guilty for commission of offence of murder and awarded proper sentence. We do not find any merit in this appeal. It is

hereby dismissed.

A copy of the judgment be sent to the trial Court for necessary compliance of this order.