Narayan Singh vs The State of M.P.

The present appeal is filed challenging the order of conviction and sentence dated 17.09.2007 passed by IIIrd Upper Sessions Judge (Fast

Track Court), Shahdol, District Shahdol (M.P.) in Sessions Trial No. 132/2006, whereby the appellant has been convicted for the offences under

Sections 302 of IPC and sentenced to under Rigorous Imprisonment for life and fine of Rs.500/-. In default of payment of fine, additional rigorous

imprisonment of three months.

The appellant Narayan Singh is husband of the deceased Indrawati. Prosecution story in short is that in the intervening night of 22.03.2006 and

23.03.2006 at about 8 P.M. after taking the diner the appellant, deceased and two children namely Bhola and Chhoti had been gone to bed. Their

other elder son namely Kamlesh (PW-2) was sleeping in varandah (parchhi) outside the room. In the morning at about 04:00 A.M. the deceased

cried for the help as her husband was beating with the help of ''tangia''. The room was closed from inside. He raised the alarm and on that the

neighbours had also reached and thereafter the door was opened by the appellant. The accused was caught by the villagers at the spot itself. The

report was lodged by Kamlesh (PW-2) at about 8:30 A.M. in the morning. His report is Ex.P-4. The spot map was prepared vide Ex.P-3. Dead

body was sent for autopsy. Axe was also seized from the outside the house. The other articles like cloths belonging to the deceased were seized.

The seized articles including weapon axe were sent to the FSL vide requisition memo Ex.P-23. After investigation, challan was filed before the

Court. The accused abjured his guilt and submitted that he was falsely implicated in the present case.

Learned counsel for the appellant submits that all the prosecution witnesses have turned hostile and they have not supported the case of

prosecution. The seizure of the axe has also not been proved as the seizure witness has not supported the prosecution case.

Per contra, learned Government Advocate for the State submitted that the order of conviction and sentence is proper and based on the

evidence. It is stated that the death has taken place in the house of the appellant and except two children aged about 3 to 4 years old, there was no

one present inside the house and therefore, the onus lies on the appellant to prove the circumstances under which the deceased has died.

Kamlesh (PW-2) is son of the appellant, in his examination in chief stated that his father had gone in the field to watch Mahua crops. Inside the

room mother and two children were present. In the morning, he had seen the dead body of the mother in the room and then he called his father and

thereafter, the intimation of death was given to the police. In para-2 of his deposition, he stated that he has seen the injuries on neck and chest of

his mother and there was profuse bleeding. He was declared hostile and was cross examined by the prosecution. In para 3 of the statement, he

admitted that it is correct that in morning at about 08:00 A.M. he had heard the shouting of the mother that ""VERNACULAR MATTER

OMITTED"" he also stated that the room in which his mother was sleeping was closed from the inside. It is also stated by him that after hearing the

shouting of his mother the neighbour Ramkaran Yadav, Jogan, Suryakant Gaud and Dinesh Gaud etc. had reached at the spot. In para 4 of his

statement he submitted that his father after killing his mother was trying to run away from the spot and he was caught hold by the neighbours. In

para-4 of his statement again he says that he had not seen killing his mother by his father. However, he has supported the prosecution to the extent

that his mother and father were inside the room with two small kids and he has heard the shouting of the mother that his father was killing her with

sharp edged weapon (tangia). He has also supported the prosecution case that the appellant was caught hold at the spot by the neighbour.

It is true that the prosecution witnesses have not supported the case but Kamlesh (PW-2) has supported the prosecution case to the extent that

the deceased was found dead in the house in a bloody condition. Dr. M.K. Mall (PW-9) who had conduced the autopsy report stated before the

Court that, there were 9 external injuries caused by sharp edged weapon. Injury No.1 was on the right side of eyebrow 7 x 1 c.m. the injury no.2

was 7 x 1 c.m on the left cheek (maxila). Injury No.3 was wound injury on the right side of the nose and maxila, injury no.4 was also a wound of

10 x 3 c.m. on the left ear and temporal region. Injury no. 5, 6, 7 & 9 were also sharp. He has also found external fracture of temporal bone,

frontal bone and right and left maxila, mandible right humorous neck and on the upper side of throat. All the injuries were found antemortem and

the cause of death was shock due to excessive injuries. His postmortem report is Ex.P-18.

Investigating Officer Rajesh Singh Parihar (PW-11) who was posted as In-charge of the Police Station has proved the registration of the FIR

and also stated that on the discovery statement of the accused, the axe was recovered. In the FSL report, the human blood was found on the

weapon and also on the trouser belonging to the deceased.

Thus the prosecution has established its case beyond any doubt on the basis of circumstantial evidence that the deceased was in the house of the

appellant. The appellant is charged for the murder of his wife. She has died in a room in which he was sleeping with her and there were no other

person except two small kids and no one had access to the said room and she died on unnatural death, in such case, there is a strong presumption

against the husband and onus is on the appellant to prove otherwise. The provisions of Section 106 of Evidence Act has been interpreted in

number of cases which are discussed herein above.

The Apex Court in the case of State of Rajasthan Vs. Thakur Singh (2014)12 SCC 211 has dealt with in paras 16, 17,18 :-

Way back in Shambhu Nath Mehra v. State of Ajmer[2] 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 (AIR P. 406, para

11)

This [Section 101] lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106is 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 [3] 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: (SCC P 694, Para 22)

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[4] 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[5] 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.

Thus, the Apex Court held that in the case of unnatural death of wife of accused in a room occupied only by both of them and no evidence of

anybody else entering the room has been established and facts relevant to cause of death being only known to accused, has not been explained by

him, strong presumption that accused murdered his wife will apply following the principle under Section 106 of the Evidence Act.

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

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.

In the case of Dnyaneshwar Vs State of Maharashtra (2007) 10 SCC 445 the Apex Court has also dealt with in para 10 as under:-

It has not been disputed before us that the deceased was murdered in her matrimonial home. It is not the case of the appellant that the offence

was committed by somebody else. It is also not his cause that there was a possibility of an outsider to commit the said offence. One of the

circumstances which is relevant is that when the couple was last seen in a premises to which an outsider may not have any access. It is for the

husband to explain the ground for unnatural death of his wife.

In view of the aforesaid assimilation of facts and evidence and enunciation of law, we find that the prosecution has successfully proved its case

beyond any reasonable doubt. We do not find any error in the order of conviction and sentence. The appeal is dismissed.

Before parting, we must put on record our unreserved appreciation for the valuable assistance rendered by the learned amicus curiae. The

High Court Legal Services Committee shall remit fee of Rs.4000/- (Rs. Four thousand) to the learned counsel assisted this Court.