Nandkishor vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J—The prosecution case, in nut-shell, is that Mst. Monika, six-years before the occurrence was married with Nandkishore, the present appellant. As per prosecution, it is alleged by Babulal (PW-11), the brother of Mst. Monika that the appellant was having illicit relation with one Vidhya Devi, the wife of Ramniwas and both in connivance with each other had committed murder of Mst. Monika.

Thus, the case, as set out by the prosecution is that the appellant having illicit relations with Vidhya Devi had murdered his wife on 1st of October, 2006 in the night at about 09:00 P.M.

Babulal (PW-11), the brother of deceased, Mst. Monika on 02.10.2006 had submitted a written-report (Exhibit-P/15) before Station House Officer, Police Station, Khetri Nagar.

The said written-report (Exhibit-P/15), when translated into English reads as under:--

"To,

The Station House Officer, Police Station, Khetri Nagar,

Subject: Registration of First Information Report for the murder.

Sir,

It is submitted that today i.e. on 02.10.2006 at about 07:00 A.M. I received a telephonic call that my sister has been murdered and I was called at Jasrapur. I along with Mahaveer Prasad, Brajlal and four-five other persons of the Village reached at Jasrapur, and found that my sister, Mst. Monika has been murdered by her husband Nandkishore and Vidhya Devi, wife of Ramniwas. I saw the dead-body of my sister, Mst. Monika and found that she was having injury on the forehead, hands and feet; and the marks of throttling were also present on her neck. My brother-in-law , Nandkishore was having illicit relations with Vidhya Devi. For this reason, both have committed murder of my sister. I am presenting this report. The legal action be taken.

Dated: 02.10.2006.

Applicant Babulal Babulal S/o. Kishanlal Meghwal Village & Post Khivsar Police Station Gudhagaurji."

On the basis of above said written-report (Exhibit-P/15), a formal First Information Report (Exhibit-P/16) was registered and the investigation commenced.

The Investigating Agency, after a thorough investigation, presented charge-sheet against the appellants, Nandkishore and Smt. Vidhya Devi.

The appellants, along with the report of investigation were committed to the Court of Sessions for trial and the trial was entrusted to the Court of Additional Sessions Judge, Fast Track No. 2, Jhunjhunu.

The said Court, vide its impugned judgment dated 01.08.2008, acquitted Smt. Vidhya Devi, the wife of Ramniwas, but convicted the present appellant, Nandkishore for commission of offence punishable under Section 302 of Indian Penal Code.

Vide a separate order of even date, the appellant was sentenced for commission of offence punishable under Section 302 I.P.C. to undergo life imprisonment and to pay a fine of Rs. 1000/-. In default of payment of fine to further undergo six months simple imprisonment.

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

Dr. Sitaram (PW-18) deposed in the Court that on 01.10.2006 he was posted as Medical Officer at Block Health Centre, Jasrapur. On 01.10.2006 at about 10:30/10:45 P.M. in one jeep, Nandkishore, present appellant, Anwar Ali (PW-1) and Vijay Kumar (PW-4) brought one lady. Nandkishore made him woke up from sleep, he (witness) came out of his quarter and after switching lights on he examined the lady and found her dead. The witness further stated that he had found abrasions on the neck. The blood was oozing out of her nose and the mouth. The said lady was the wife of Nandkishore. He declared her to be dead and thereafter, informed the Police.

Dr. Hari Singh Gothwal (PW-19) stated that on 02.10.2006 he was posted as Medical Officer in the Community Health Centre, Khetri. This witness further stated that he being a Member of the Medical Board, had conducted autopsy on the dead-body of Mst. Monika, the wife of present appellant. Dr. S.R. Gothwal was also Member of the Medical Board. Medical Officer proved on record the Post Mortem Report (Exhibit-P/39).

The Medical Board had noticed the following injuries in the Post Mortem Report:--

"1. Abrasion 1 cm x 1/2 cm with diffuse swelling right side of forehead.

Abrasion 1 cm x 1 mm semi circular shape (crescentic) left side of neck produced by nail.

Abrasion 1 cm x 1/2 cm left patellar region

Abrasion 4 cm x 2 mm anterior aspect of left leg.

Abrasion 2 cm x 1 cm anterior aspect of left forearm

Abrasion 1/2 cm x 2 mm left angle of mandible

Fracture dislocation of C5 Vertebra."

On dissection of neck, Medical Board had found displacement of inter-vertebral disc between C4 & C5 vertebra, compression of spinal cord and hemorrhages were present around spinal cord and between its membranes.

Furthermore, as per opinion of the Medical Board, the cause of death was fracture, dislocation of the 5th cervical vertebra. All injuries were ante-mortem in nature and the time of death was approximately between 12 to 24 hours.

Thus, it is apparent that Mst. Monika had died in her matrimonial home due to throttling.

Dr. Hari Singh Gothwal (PW-19) has specifically stated that the present one is not a case of suicide.

Anwar Ali (PW-1) stated in the court that two/three months ago, when he was present in the house, Nandkishore came and informed that his vehicle is required, as the condition of Monika is not good. The witness brought the vehicle. Nandkishore from his house carried his wife. At that time, Vijay Kumar came to the house. They brought Monika to the Government Hospital. The Doctor, who had retired to sleep was called. The Doctor advised to take the wife of Nandkishore to Coper. This witness was declared hostile to the prosecution case.

Ramjas (PW-2) stated that on 02.10.2006 in the morning at 06:00 A.M. he received an information that in the night the wife of Nandkishore had died. The witness stated that he is not aware as to how she has died. However, this witness stated that information was given to the Police. He had directed the people around to give information to the Police and the family members of the deceased. The Police came at the spot and prepared the site-plan (Exhibit-P/1). This witness also attested inquest proceedings (Exhibit-P/5). The witness stated that the dead-body was handed over to the brother of the deceased vide receipt Exhibit-P/6. Nandkishore was arrested vide memo Exhibit-P/7). Vidhya Devi was also arrested vide seizure memo Exhibit-P/8.

Moti Lal (PW-3) had attested inquest vide Exhibit-P/5.

Vijay Kumar (PW-4) stated that he was present in his house (on the night when Nandkishore came along with his wife). They brought her to the hospital. The witness stated that he had not seen any occurrence. This witness was also declared hostile to the prosecution case.

Ashok Kumar (PW-5) stated that Mst. Monika had died. This witness had not narrated anything in the occurrence and he was declared hostile to the prosecution.

Shanti Devi, (PW-7), the mother of deceased, Mst. Monika stated that her daughter was married with accused five-years and six-months ago. She stated that as and when she came to her parental house, she used to complain that accused is having illicit relationship with Vidhya. Deceased daughter used to express apprehension that Vidhya and Nandkishore will finish her, as both had quarrel with her. She further informed that Vidhya and Nandkishore intend to liquidate her and perform the Court Marriage. This witness was examined to prove motive.

Braj Lal (PW-8) stated that on 02.10.2006 Babulal, the brother of Mst. Monika came to him and informed that Nandkishore had committed murder of his sister. He accompanied her to the house of the accused. The dead-body was lying on the floor of the room of the accused. There were injuries on the forehead, hands and feet; and marks of throttling on her neck were also present.

Chawali Devi (PW-9) stated that as and when Monika came to her parental house, she used to complain that her husband and Vidhya Devi will finish her. She stated that Monika was daughter of her sister.

Suresh Kumar (PW-10) stated that Ramniwas is his real brother and Vidhya Devi is wife of his younger brother, Ramniwas. He had seen Nandkishore sitting on the cot of Vidhya in an objectionable manner. This witness further stated that he had witnessed the illicit relations between Vidhya and Nandkishore. Since he had objected to their relationship, Nandkishore had caused him injuries. However, this witness stated that he is not aware whether Nandkishore and Vidhyahad throttled Monika or not?. This witness was declared hostile to the prosecution, but he admitted that Nandkishore was having illicit relations with Vidhya Devi.

Babulal (PW-11) is brother of the deceased. He has also deposed regarding illicit relationship between accused and Vidhya Devi and also deposed about the fact that they received an information that Monika, wife of Nandkishore has been murdered. The dead-body was kept in the house of the appellant.

To the similar effect is the statement of Mahaveer Prasad (PW-12), who had accompanied Babulal (PW-11).

Krishan Kumar (PW-15) stated that he was running grocery shop in the Village. He stated that Vidhya came to his shop. Nandkishore also came there. He further deposed that he is not aware whether they had any conversation or not? This witness was also declared hostile to the prosecution.

Sarujuddin (PW-16), neighbour of Nandkishore has also turned hostile and stated that he is not aware whether Nandkishore and Vidhya were having illicit relationship or not.

Phoolchand (PW-21), another witness was also examined. This witness has also turned hostile to the prosecution and was confronted with his previous statement.

Satyanarayan (PW-23) stated that Nandkishore was having illicit relations with Vidhya. He restrained Nandkishore. On this, a fight had ensued in which slaps and fists were given to Nandkishore and a criminal case was registered against him. The witness further stated that Vijay Kumar came and informed that accused had murdered his wife, Monika due to illicit relations with Vidhya Devi.

In the present case, the prosecution agency, during trial, had examined, in all twenty-four witnesses and also proved on record forty-four documents, being Exhibit-P/1 to Exhibit-P/44 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 and pleaded innocence.

In defence, accused had examined one witness, namely Tara Chand (DW-1) and relied upon the statement of witness, namely Ratiram recorded under Section 161 Cr.P.C., as Exhibit-D/1.

For sake of brevity, we have not referred to the testimony of the remaining witnesses, who had carried investigation, took samples to the F.S.L. or had taken photographs of the spot, prepared site-plan, attested the arrest memo and prepared inquest.

Broadly the prosecution witnesses/evidence can be divided into three categories:

"(i) One set of witnesses have deposed regarding illicit relations between the present appellant and Vidhya Devi.

(ii) Second set of witnesses, including relations of the deceased, who on information received came to the Village of the accused, have stated that they saw dead-body lying in the room of the house of the accused having marks of violence.

(iii) Third set of witnesses have deposed that on the night of occurrence, Nandkishore approached them, they along with him have taken his wife to the Medical Officer at Jasrapur and the Doctor declared her dead."

Mr. Gajanand Yadav, the learned counsel appearing for the accused-appellant, has submitted that except, the witnesses to illicit relations, all witnesses have turned hostile to the prosecution case. Nobody had seen the present appellant causing murder of his wife and, thus, there is no evidence to connect the present appellant with the alleged crime.

It has been further submitted by the learned counsel that the prosecution must stand on its own legs and in view of deficit evidence led by the prosecution, accused cannot be held responsible for the murder, as no witness has seen the alleged occurrence or have stated anything against the appellant, so far offence of murder is concerned.

It is true that in the present case, there is no direct evidence available regarding the murder and nobody had stated that the appellant had murdered his wife. However, the following glaring facts stand conclusively proved from the testimony of hostile witnesses:--

"(i) Firstly, Anwar Ali (PW-1) stated that on the alleged night, accused approached him for bringing jeep to take his wife to the Block Health Centre, Jasrapur.

(ii) Secondly, as per deposition of Anwar, he along with vehicle came to the house of accused, the accused carried his wife on his shoulder to the vehicle.

(iii) Thirdly, the present appellant, along with Anwar (PW-1) and Vijay Kumar (PW-4) has taken his wife to Dr. Sitaram (PW-18).

(iv) Fourthly, Dr. Sitaram (PW-18) stated that abrasions were found on the neck of deceased, and declared her dead.

(v) Fifthly, Dr. Hari Singh Gothwal (PW-19) has ruled out that the death of Monika, the wife of present appellant, is not suicide and he has declared her dead and opined it to be a case of throttling.

(vi) Sixthly, in the present case, in the Post Mortem Report (Exhibit-P/39), cause of death was fracture, dislocation of the 5th cervical vertebra, therefore, it is a case of homicide."

From the facts narrated herein above, it stands conclusively proved that Monika was murdered in her matrimonial home and the present appellant had carried her body to the Block Health Centre, Jasrapur from his house.

Therefore, since occurrence had taken place in the bed room of the appellant, a duty is cast upon the husband to explain as to how his wife had died, especially when this being special circumstance was in the knowledge of the husband. It is for the appellant to disclose as to how his wife had died in the matrimonial home. Appellant has taken no such plea in his statement recorded under Section 313 Cr.P.C.

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 Gian Chand is that of 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."

Consequently, on the facts culled by us and law noted herein above, we find no merit in the present case and the same is, hereby, dismissed, while affirming the conviction and sentence of the appellant.

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.