Rohit Kumar vs State of C.G.

R.S. Sharma, J.—This appeal is directed against judgment dated 27-6-2008 passed by Additional Sessions Judge, Bemetara in Sessions Trial No. 89/2006. By the impugned judgment, accused/appellant Rohit Kumar has been convicted and sentenced in the following manner with a direction to run the sentences concurrently:

Case of the prosecution, in brief, is as under:

Deceased Gondabai was wife of the appellant. On 16-11-2005, the appellant submitted information in Police Station, Nawagarh that the deceased had gone to well for taking out water, she fell into the well and died. Merg Intimation (Ex. P-8) was recorded and First Information Report (Ex. P-11) was also registered in Police Station Nawagarh. Dead body of the deceased was taken out from the well. The Investigating Officer reached the place of occurrence, gave notice (Ex. P-5) to Panchas and prepared inquest (Ex. P-6) on the dead body of the deceased. The dead body was sent for post mortem examination vide Ex. P-13. Dr. H.N. Gupta (PW-3) and Dr. Sanjay Kumar (PW-11) conducted post mortem on the dead body and gave their report (Ex. P-3). They found-

(i) abrasion %X1/cm right side of outer thyroid,

(ii) abrasion 1 X% cm below the left mandible,

(iii) abrasion 14X1/4 cm on left mastoid region,

(iv) abrasion 3 cm linear on the back side of the'' neck, abrasions 3 in numbers and.

(v) abrasion 5 X 3 cm below 3 cm of nipple of right side of the chest and clotted blood was present.

They opined that the cause of death of the deceased was asphyxia due to strangulation and the death was homicidal in nature.

In further investigation, spot map (Ex. P-1) was prepared by Patwari Parmeshwar Prasad Pathak (PW-1). Statement (Ex. P-10) of Bharat (PW-12) was recorded by the Executive Magistrate/Tahsildar H.L. Gaikwad (PW-16). The appellant was arrested vide Ex. P-12. Tahsildar H.L. Gaikwad (PW-16) also prepared site map (Ex. P-14).

After completion of the investigation, charge sheet was filed against the appellant in the Court of Additional Chief Judicial Magistrate, Bemetara, who, in turn, committed the case to the Court of Session, Durg, from where, it was received on transfer by the Additional Sessions Judge, Bemetara, who conducted the trial and convicted and sentenced the appellant as mentioned above.

Shri Uttam Pandey and Shri T.N. Dubey, learned counsel for the appellant argued that the finding of guilt recorded on the basis of circumstantial evidence is not reasonable. The appellant is not responsible for the death of the deceased. They further argued that the prosecution has failed to prove that the death of the deceased was homicidal in nature. They further argued that the circumstantial evidence is not of conclusive nature, it is well settled law that strong suspicion is no substitute for a proof, therefore, the finding of guilt recorded by the learned Additional Sessions Judge is not sustainable and the appellant deserves to be acquitted.

Shri Rajendra Tripathi, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Additional Sessions Judge do not warrant any interference by this Court.

We have heard learned counsel for the parties and have also perused the record of Sessions Trial No. 89/2006. Admittedly, there is no eyewitness to the incident and the case of the prosecution is based on the circumstantial evidence.

It is a settled principle of law that in a case based on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances from which the conclusion of guilt has to be drawn, should be fully established. It is also well settled that suspicion, however grave it may be, cannot be substitute for a proof and the Court should take utmost precaution In recording the finding of guilt only on the basis of circumstantial evidence.

In Jagroop Singh Vs. State of Punjab, the Hon''ble Supreme Court observed as follows:

In Sharad Birdhichand Sarda Vs. State of Maharashtra, a three-Judge Bench has laid down five golden principles which constitute the "panchsheel" in respect of a case based on circumstantial evidence. Referring to the decision in Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra, it was Opined that it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between ''may be and ''must be'' is long and divides vague conjectures from sure conclusions. Thereafter, the Bench proceeded to lay down that the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; that the circumstances should be of a conclusive nature and tendency; that they should exclude every possible hypothesis except the one to be proved; and that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

In Padala Veera Reddy Vs. State of Andhra Pradesh and others, this Court held that when a case rests upon circumstantial evidence, the following tests must be satisfied: (SCC pp. 710-11, para 10)

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

The similar view has been reiterated in Ramreddy Rajeshkhanna Reddy and Another Vs. State of Andhra Pradesh,

In Balwinder Singh Vs. State of Punjab, it has been laid down that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the Court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, however strong they may be, to take the place of proof.

In Harishchandra Ladaku Thange Vs. State of Maharashtra, , while dealing with the validity of inferences to be drawn from circumstantial evidence, it has been emphasised that where a case rests squarely" on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person and further the circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.

In State of U.P. Vs. Ashok Kumar Srivastava, emphasis has been laid that it is the duty of the Court to take care while evaluating circumstantial evidence. If the evidence adduced by, the prosecution is reasonably capable of two inferences, the one in favour of the accused must be accepted. That apart, the circumstances relied upon must be established and the cumulative effect of the established facts must lead to a singular hypothesis that the accused is guilty.

In Ram Singh Vs. Sonia and Others, while referring to the settled proof pertaining to circumstantial evidence, this Court reiterated the principles about the caution to be kept in mind by Court. It has been stated therein that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts.

In Ujjagar Singh Vs. State of Punjab, after referring to the aforesaid principles pertaining to the evaluation of circumstantial evidence, this Court stated that it must nonetheless be emphasized that whether a chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted.

It is not disputed that deceased Gondabai was wife of the appellant.

Nimmoraj (PW-4) deposed that on 16-11-2005, at about 6:00 P.M. after carrying and unloading the paddy, he parked his tractor in the Kothar (granary) and slept there on a cot. After sometime, he heard sound like throwing of stone into water. When he tried to look, nothing was visible due to darkness. After 1-2 minutes, Pannalal cried that Chachi (aunt) had fallen into the well. He further deposed that he did hot hear any cry or noise of deceased Gondabai while he heard the sound of something falling into the well.

Narmada (PW-5) deposed that deceased Gondabai was wife of appellant Rohit. Gondabai had fallen into the well and died. He further deposed that Gondabai fell into the well at about 7:00 P.M. The villagers took her out from the well. Holiram (PW-6) also deposed in similar fashion.

The appellant took the plea that the deceased had fallen into the well and the death of the deceased was accidental. The plea taken by the appellant is not acceptable.

Dr. H.N. Gupta (PW-3) deposed that he conducted the autopsy on the dead body of the deceased and gave his report (Ex. P-3). He found (i) abrasion 1/2 X 1/4 cm right side of outer thyroid, (ii) a braslon 1X1/2 cm below the left mandible, (iii) abrasion 1/2 X 1/2 cm on left mastoid region, (iv) abrasion 3 cm linear on the back side of the neck, abrasions 3 in numbers and (v) abrasion 5 X 3 cm below 3 cm of nipple of right side of the chest and clotted blood was present. He further deposed that the cause of death of the deceased was asphyxia due to strangulation and the death was homicidal in nature. Narmada (PW-5) deposed that it is true that on falling into water, nose and mouth releases water after taking the body out of water and abdomen gets swollen. He further deposed that he was present at the time of pulling out the dead body of the deceased from the well. He further deposed that after taking out the dead body of the deceased from the well, the same was laid down on Phatti. Holiram (PW-6) deposed that after taking out the dead body of the deceased from the well, the abdomen and chest of the deceased was pressed but no water came out of her mouth. He further deposed that it is true that the well was narrow and width thereof was 2-3 feet.

The well was filled with water. Had the deceased fallen into the well, the water would have entered into her abdomen and lungs and after pressing her chest and abdomen the water entered inside would have come out from her mouth, but no water came out from her mouth.

Dr. H.N. Gupta (PW-3) specifically deposed that abrasions were present on thyroid and mandible region and the death was homicidal in nature. Head Constable G.R. Verma (PW-7) deposed that on 16-11-2005, at about 11:30 P.M., the appellant lodged Merg Intimation (Ex. P-8). He further deposed that it is true that the appellant intimated in Police Station Nawagarh that his wife (the deceased) had gone to the well for taking out water, but she fell into the well and died.

Bharat (PW-12) deposed that 2 days before the incident, the appellant had come to his house and told him that the deceased did not take care of his mother, therefore, he would kill her. He inculcated the appellant. Thereafter, the appellant went back. On the next day, the deceased fell into the well and died.

In Trimukh Maroti Kirkan Vs. State of Maharashtra, , the Hon''ble Supreme Court observed as follows:

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 Stiriand v. Director of Public Prosecutions f---quoted with approval by Arijit Pasayat, J. in State of Punjab v. Kamail Singh) 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.

Where an offence like murder is committed in secrecy 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 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.

In State of Rajasthan Vs. Kashi Ram, , the Hon''ble Supreme Court observed as follows:

19 whether an inference ought to be drawn u/s 106 Evidence Act is a question which must be determined by reference to proved. It is ultimately a matter of appreciation of evidence and, therefore, each case must rest on its own facts.

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 falls to offer an explanation on the basis of facts within his epical 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...

These principles have been further reiterated In the matter of State of Rajasthan Vs. Parthu, .

The incriminating circumstances which points towards the guilt of the appellant were put to the appellant u/s 313 Cr.P.C. The appellant took defence of total denial. When the questions were put to the appellant u/s 313 Cr.P.C., he simply answered "not known" only, and when the appellant was asked regarding his defence, he simply answered that he is innocent and falsely implicated.

In the instant case, Dr. H.N. Gupta (PW-3) and Dr. Sanjay Kumar (PW-11), who conducted the autopsy of the deceased, deposed that cause of the death of the deceased was asphyxia due to strangulation and her death was homicidal in nature, but the appellant took defence that the deceased had fallen into the well. According to medical evidence, the death of the deceased was due to strangulation but the appellant took the defence that the death of the deceased was accidental due to her fall into the well. The witnesses took out the deceased from the well. After pressing her chest and abdomen, no water came out from the mouth of the deceased. The well was filled with water. Had the deceased fallen into the well, the water would have entered into her abdomen and lungs and after pressing her chest and abdomen the water entered inside would have come out from her mouth, but no water came out from her mouth. Therefore, the defence taken by the appellant is not acceptable.

The appellant has not been able to prove his defence. His defence has been falsified by the medical evidence. The appellant failed to offer any proper explanation in discharge of burden placed on him u/s 106 of the Evidence Act. He did not throw any light upon facts which were in his knowledge. He has not thrown any light as to how the deceased sustained injuries and in what circumstances the incident took place, in which, the deceased died homicidal death. On the contrary, he took false defence of accidental death of the deceased.

In light of the above discussion, we do not find any infirmity in the finding recorded by the learned Additional Sessions Judge that it was the appellant who strangulated the deceased and threw the dead body of the deceased into the well and the deceased died on account of strangulation caused by the appellant. For the foregoing reasons, the appeal, being devoid of any merit, is liable to be and is hereby dismissed.