Sarwari Begum And Another vs State Of Uttarakhand

Ravindra Maithani, J

Common question of law and facts has been raised in both these criminal appeals, hence, they are being decided by this common judgment.

Appellants - Smt. Sarwari Begum and Samad preferred Criminal Appeal No.340 of 2014, against the judgment and order dated 18.10.2014, passed in Sessions Trial No. 60 of 2011, State Vs. Alim and Others. By the impugned judgment and order, appellants Smt. Sarwari Begum and Samad have been acquitted of the charge under Section 302 r/w 34 IPC, but both have been convicted under Section 201 IPC.

Appellant Samad has been sentenced as hereunder:-

"Five years simple imprisonment and a fine of Rs.5000/-under Section 201 IPC. In default of payment of fine, simple imprisonment for a further period of six months."

Appellant Smt. Sarwari Begum has been sentenced as hereunder:-

Three years simple imprisonment and a fine of Rs.5000/-under Section 201 IPC. In default of payment of fine, simple imprisonment for a further period of six months.

Appellants - Alim and Mukhtyar preferred Criminal Appeal No.373 of 2014, against the judgment and order dated 18.10.2014, passed in Sessions Trial No. 60 of 2011, State Vs. Alim and Others. By the impugned judgment and order, appellants Alim and Mukhtyar have been convicted of the charges under Section 302 r/w 34 IPC and 201 IPC and sentenced as hereunder:-

"(i) Life imprisonment and a fine of Rs.20,000/- each under Section 302 r/w 34 IPC. In default of payment of fine, rigorous imprisonment for a further period of two years.

(ii) Five years simple imprisonment and a fine of Rs.5000/-under Section 201 IPC. In default of payment of fine, simple imprisonment for a further period of six months."

All the abovementioned sentences shall run concurrently."

Briefly stated, according to the prosecution, on 23.12.2010, at about 12:00 noon, the appellant Alim called the deceased Firoz from his house on the pretext that they would settle the boundary dispute and took him to his house. Deceased Firoz did not return. Thereafter, a search was made. When appellants were contacted, they told that though the deceased had come to their house, but had left shortly thereafter.

On suspicion, a search was further made in the house of the appellants and the dead body of the deceased Firoz was found from beneath a bed of straw. PW1 Mehboob Hussain, father of the deceased, lodged a report on 23.12.2010 at 11:05 P.M. at Police Station - Kashipur. Based on it, Case Crime No.613 of 2010, under Sections 302 and 201 IPC was registered. Investigation was carried out.

Inquest of the dead body was conducted on 24.12.2010 and on the same day, a bicycle belonging to the deceased was recovered from the house of the appellants. The Investigating Officer also took into custody the plain and bloodstained soil from the house of the appellants. Post-mortem of the body was conducted on 24.12.2010 at 02:00 P.M. at L.D. Bhatt Hospital, Kashipur by PW6 Dr. Kamesh Rana. According to the doctor, the cause of the death was asphyxia, as a result of strangulation and the duration of death was within 36 hours. During investigation, appellants Alim and Samad were arrested. They confessed their guilt. On 25.12.2010, the appellant Alim got a rope recovered from a place near his house. The Investigating Officer also prepared a site plan, categorically showing the place in the house of the appellants, where the deceased was killed and the place from which his dead body was subsequently recovered. The plain and bloodstained soil was sent for forensic examination and report was received. After investigation, chargesheet was submitted against all the appellants under Sections 302 r/w 34 and 201 IPC. On 03.03.2011, charges under Section 302 r/w 34 and 201 IPC were framed against all the appellants, to which, they denied and claimed trial.

The prosecution, in order to establish the case, examined as many as ten witnesses, namely, PW1 Mehboob Husain, PW2 Mohd. Husain, PW3 Liyaqat, PW4 Smt. Sahnaaj, PW5 Saleem, PW6 Dr. Kamesh Rana, PW7 Constable Naveen Chandra Joshi, PW8 S.I. Mohan Chandra Pandey, PW9 SSI Ravindra Kumar and PW10 Kadeer Ahmad.

Appellants were examined under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'). All the appellants denied their involvement in the offence. According to the appellants, the deceased committed rape upon Hasmeen, daughter of Mukhtyar and to suppress it, false case has been levelleled against the appellants. Appellant Samad, in his statement under Section 313 of the Code, also stated that on 23.12.2010, he was on duty in the factory from 08:00 AM to 07:00 PM. Appellant Mukhtyar states in his statement under Section 313 of the Code that he was feeding the animals. Hasmeen was at the house and there was no electricity in the house. Appellant Alim stated that he was not in the house at the relevant time. Appellant Sarwari Begum also stated that she was not at house. Appellants also examined three witnesses in their defence. They are, DW1 Nasir Ali, DW2 Hasmeen and DW3 Dr. T.K. Pant.

After hearing the parties, based on the evidence, the learned court below vide judgment and order dated 18.10.2014, convicted and sentenced the appellants, as stated hereinbefore. Aggrieved, the instant appeal.

Heard learned counsel for the parties and perused the record.

Learned counsel for the appellants would raise following points in his argument:-

(i) FIR is delayed.

(ii) Statements of the witnesses are unbelievable, as to where was the dead body. While arguing it, learned counsel has also argued that it appears as if the deceased was killed at some other place and dead body was kept in the house of appellants.

(iii) No independent witness has been examined.

(iv) PW4 Smt. Sahnaaj is not reliable, because there was dispute between the parties. Why did she allow her son, the deceased to accompany Alim at his house? The appellants never ran away from the spot.

(v) Why the rope, which was allegedly recovered by Alim was not sent for Forensic Examination?

Therefore, it is argued by learned counsel for the appellants that the prosecution failed to prove the case against the appellants and the learned court below committed an error in convicting and sentencing the appellants, therefore, appellants deserve to be acquitted of the charges and the appeals allowed.

Learned counsel for the appellants would further argue that, in fact, on 23.12.2010, sometime in the evening, the deceased Firoz entered in the house of the appellants when Hasmeen, daughter of Mukhtyar was all alone and raped her. When Hasmeen cried, appellant Mukhtyar, who was outside the house ran inside and found the deceased in compromising position with his daughter Hasmeen. Seeing it, under great provocation, appellant Mukhtyar pulled the deceased away from his daughter Hasmeen and in that scuffle, deceased Firoz was killed. It is argued that Hasmeen was trying to save his father Mukhtyar.

Learned State counsel would argue that in the instant case, prosecution has proved the charges beyond reasonable doubt against the appellants. The witnesses have categorically deposed that the deceased was in the house of the appellants on that fateful day; he was last seen in the company of appellant Alim, when they were going towards the appellants' house; deceased voice was heard alongwith the voices of the appellants from the house of the appellants; the dead body of the deceased was recovered from the dwelling house of the appellants, of which, false explanation has been offered by the appellants at various stages, therefore, it is argued that learned court below has rightly convicted and sentenced the appellants and no interference is warranted in the instant appeals.

On behalf of the complainant, learned Senior Counsel would argue that the deceased was called by appellant Alim and took him to his house. Deceased and Alim were seen going together by PW3 Liyakat. PW2 Mohd. Husain also heard the voices of the deceased and appellants coming from the house of the appellants on that day. Deceased was last seen with the appellants. Dead body was found from the house of the appellants. All the four appellants reside in the same dwelling house. All the appellants ran away from the spot and in that process, appellants Sarwari Begum and Mukhtyar sustained certain injuries also. Since, the dead body of the deceased was found in the house of the appellants, it was the appellants to prove, as to how did the deceased die. But, the explanation, which has been given by the appellants, is false and self-contradictory. Reference has been made to certain general diary entries, statement of DW2 Hasmeen and also order dated 27.01.2011, passed by In-charge Sub Divisional Magistrate, Kashipur.

Learned counsel for the complainant would further argue that on behalf of the appellant Mukhtyar, it is being admitted that it is the appellant Mukhtyar, who killed the deceased Firoz and, therefore, killing is not disputed, but it is also argued that appellant Mukhtyar in his examination under Section 313 of the Code, did not say that he killed the deceased. It is also argued that learned court below has rightly convicted the appellants and no interference is warranted in the matter.

It is a case based on circumstantial evidence. No one has seen the deceased being killed by appellant Mukhtyar or any of them. The links have been connected on the following basis:-

(i) There was enmity between the parties.

(ii) On the date of incident at about 12:00 noon, appellant Alim called the deceased Firoz from his house and took him to his house. The deceased did not return thereafter.

(iii) When questioned, the appellants told that the deceased Firoz had left their house. Till late evening, the deceased could not be traced, therefore, announcement was made from the mosque.

(iv) When it was dark, it was noticed that there was no electricity in the house of the appellants, whereas in the other houses of the village, electricity was there. At about 10:00 PM, when again search was intended to be made in the house of appellants, appellant Mukhtyar resisted it, but search was made and blood was spotted in one of the rooms and subsequently dead body of the deceased Firoz was found beneath the bed of straws in the veranda. Once the dead body was located, sensing fear, the appellants ran away from their house.

(v) None of the appellants was present at the time of inquest.

(vi) All the appellants reside in the same dwelling house, from where the dead body was found.

(vii) Explanation about the death of the deceased has not been specifically given by the appellants.

(viii) Hasmeen, the daughter of appellant Mukhtyar had told the Sub-Division Magistrate that on 23.12.2010, at about 12:00 noon, when deceased Firoz entered her room, he was killed by Mukhtyar, whereas in evidence, as defence witness DW2 Hasmeen stated that the deceased had entered her house at about 05:00 PM and raped her, therefore, she had killed the deceased Firoz. But, at one stage, when appellants were arrested and taken to Police Station on 23.12.2010, they confessed their guilt and told that when they called Firoz from his house, he started abusing them, therefore, he was killed.

(ix) It is argued that the explanations are contradictory. It is false and it also proves the guilt of all the appellants.

PW4 Smt. Sahnaaj is the mother of the deceased. She has stated that on the date of incident, at about 12:00 noon, appellant Alim called his son Firoz and Firoz accompanied him in his bicycle and while leaving, she had cautioned him to be careful, because they had a dispute with the appellants. According to her, when till 04:00 in the evening, Firoz did not return and her husband PW1 Mehboob Hussain returned, she narrated it to him and thereafter, search was made and dead body of the deceased was recovered from the house of the appellants.

PW1 Mehboob Hussain is the father of the deceased. He corroborates the statement of PW4 Smt. Sahnaaj and states that as soon as PW4 Smt. Sahnaaj told him that Firoz had gone with appellant Alim at 12:00 noon on that day and did not return, he immediately went on the motorcycle to the house of appellants. There, he met appellants and when questioned, appellant Alim told him that though he had called Firoz from his house, but after some time, Firoz had left. According to PW1 Mehboob Hussain, they searched for deceased, but they could not find him. They made an announcement from the mosque about the disappearance of the deceased Firoz and also conveyed it to their relatives. Later on, he realized that the light of the appellants' house was not on, though there was electricity in the village. According to him, at night, he again visited the house of the appellants. It was dark inside. A lamp was lit. He was accompanied by Liyakat and others and when search was made, they spotted blood on the floor of a room. Subsequently, in the veranda, beneath a bed of straw, they could locate the dead body of deceased Firoz. Blood was oozing from his nostrils. There was mark of rope in his neck, a mark of injury below right eye and tongue was protruding out from the mouth and pressed between the teeth. He also saw the bicycle of his son Firoz in the house of appellants. According to PW1 Mehboob Hussain, he got the FIR lodged. The Police came and found the dead body in the house of the appellants. PW2 Mohd. Hussain and PW3 Liyakat are the witnesses, who have either seen the deceased with appellant Alim or heard the voice of deceased from the house of appellants. According to PW2 Mohd. Hussain, on 23.12.2010, at about 01:00 in the noon, while he was going to village Gulariya, he heard that the deceased was talking in loud voice with the appellants in the appellants' house. He did not pay much attention to it and left that place. According to PW2 Mohd. Husain, when he heard that Firoz was not traceable, he called PW1 Mehboob Husain to tell as to what he had heard in the noon, on that day.

PW3 Liyakat had stated that on 23.12.2010, at about 12:00 noon, he saw deceased Firoz with appellant Alim going towards appellants' house. The deceased Firoz had bicycle with him. According to this witness, when he returned his house in the evening, he learnt that deceased Firoz was not traceable, then, he went to the house of PW1 Mehboob Husain and told him that he had seen deceased Firoz with appellant Alim on that day.

PW5 Saleem is the person, who is witness of the recovery memo, by which, plain and bloodstained soil was taken into custody by the Police. He had also seen dead body in the house of the appellants on 23.12.2010.

PW10 Kadeer Ahmad is another witness, who is brother-in-law of PW1 Mehboob Husain. According to him, he also went for search of deceased Firoz on 23.12.2010 and when visited the house of the appellants, they found dead body in the house. He is also the witness of the inquest. In fact, PW2 Mohd. Husain is also a witness of the inquest and witness of recovery of bicycle at the instance of appellant Alim.

PW6 Dr. Kamesh Rana conducted the post-mortem on the body of the deceased and found the following injuries:-

"(i) Abraded contusion lateral to right eye ball 3 cm x 3 cm.

(ii) Abraded contusion right shoulder 1cm x 1cm

(iii) Abrasion on chin 2cm x 2cm

(iv) A ligature mark is present over neck passing through middle part of adam apple. Right side up to cervical vertebral margin & left side up to 1 cm away from cervical vertebral margin, measurement of ligature mark 031cm in length & 1cm width on right side 7cm from ear lobule on left side 8 cm from ear lobule, on dissection. Cricoid cartilage is fractured."

According to PW6 Dr. Kamesh Rana, the cervical cartilage was fractured. Right chamber of the heart was filled, left chamber was empty; lungs congested and the duration of the death was between 12 to 36 hours. He proved the post-mortem report.

PW7 Constable Naveen Chandra Joshi proved certain general diary entries of the Police Station.

PW8 Sub Inspector, Mohan Chandra Pandey is the person, who reached at the spot after lodging of the FIR and had stated about it. He also found the dead body and took into custody bicycle of the deceased, plain and bloodstained soil, prepared inquest report and the recovery of the rope at the instance of appellant Alim.

PW9 Senior Sub Inspector Ravindra Kumar is the Investigating Officer in the case, who has stated about the steps taken during investigation. He arrested appellant Mukhtyar and Sarwari. He states about the statements given to him by the appellants. He proved the general diary report number 24, time 10:20 PM of the Police Station, in which confession of appellant Alim is recorded, according to which, when deceased was called from his house, at about 01:00 PM, in their house, the deceased Firoz started abusing them, whereupon, he inflicted a fist blow on his face, due to which he fell down and then the other appellants caught hold of him and appellant Mukhtyar strangulated him by a rope.

He has also stated about the recovery and other documents and proved the chargesheet.

In defence, appellants examined DW1 Nasir Ali, who had stated that on 23.12.2010, appellant Samad was working in their Flexi Tuff International Company Ltd from 08:00 AM to 6:00 PM.

DW2 Hasmeen is the daughter of appellant Mukhtyar. According to her, on 23.12.2010, there was no light in their house. It had some fault, appellant Alim had gone to call for the electrician. Appellant Sarwari had gone to get fodder for the animals. At about 05:00 PM, when she was all alone at her house, deceased Firoz entered in her room; muffled her mouth; made her fell down and raped her forcibly. As soon as, she could get released herself, she cried, at which, her father Mukhtyar came in. The deceased Firoz attacked her father with Danda and appellant Mukhtyar pushed him. Deceased Firoz fell down. There was a telephone wire, by which this witness strangulated him till he died. Thereafter, she changed her clothes and went to the Police Station, but Police did not take any action in this matter. She was threatened by the Police and was confined in the Police Station for three nights. Whatever she stated to the Sub-Divisional Magistrate, it was under the threat of the Police. She was sent to Nari Niketan on 26.12.2010 and thereafter, her sister Jasmin got her released from Nari Niketan.

DW3 Dr. T.K. Pank examined appellants Mukhtyar and Sarwari Begum in the intervening night of 22/23.12.2010. According to him, he found the following injuries on the body of the appellant Mukhtyar, which might have been caused within eight hours by Lathi and Danda.

(i) Swelling, deformity abnormal movement over right arm with penetrating wound size 1 cm x 1 cm, bleeding present overlying swelling.

(ii) Swelling 5 cm x 3 cm with pain on left side of head.

In the opinion of the Doctor, wound no.1 had been caused by hard and blunt object and was serious in nature. The Doctor advised for X-ray. Wound no.2 had been caused by hard and blunt object.

To find out the nature of the wound, the Doctor advised for X-ray.

Wound nos. 1 and 2 were caused within eight, hours by Lathi and Danda.

According to DW3, he also medically examined the appellant Sarwari and found the following injuries, which were simple in nature and might have been caused within sixteen hours by Lathi and Danda.'

(i) Clean lacerated wound 3cm x 1cm muscle deep 10 cm above right ear on scalp over head. Loose blood clot is present over wound which bleeds on removing.

(ii) lacerated wound 1cm x 0.5cm skin deep over left eyebrow, which bleeds on removal.

Is the FIR delayed?

Learned counsel for the appellants would argue that if the deceased had left his house at 12:00 in the noon and did not return, why was the FIR not promptly lodged? This argument has no force. PW1 Mehboob Hussain, father of the deceased, categorically states that when he returned to his house at about 04:00 PM and learnt that his son had not returned, search was made and finally at 10:00 PM, they again entered the house of the appellants and then only they could locate the dead body.

He went to the Police Station leaving the dead body in the house of the appellants. FIR has been lodged at 11:50 PM, on the same day at Police Station, which is 8 KM away from there. At about 10:00 PM, dead body was located and FIR was lodged at 11:50 PM. There was no delay. FIR is prompt.

Reference may be made here with regard to the enmity between the parties. PW1 Mehboob Hussain categorically states that a year prior to date of incident, he had planted some eucalyptus trees in the boundary, which is adjoining to the boundary of the appellants. There is a dispute between the parties for that reason. He was given a suggestion that they had a dispute for cutting the eucalyptus trees, which he admitted. In his cross-examination, PW1 Mehboob Husain further states that he had a quarrel with Mukhtyar with regard to planting of eucalyptus trees by him and he also states in his cross-examination that three days prior to the date of incident, he had a quarrel with appellant Mukhtyar, in which he had beaten up Mukhtyar and Mukhtyar had beaten him up. PW4 Smt. Sahnaaj also stated about the enmity between the parties. PW3 Liyakat has, in his cross-examination, recorded on 03.12.2011, stated that he had witnessed a fight between the appellant Mukhtyar and PW1 Mehboob Husain prior to the date of incident.

The dispute between the parties is more or less proved. An argument was raised that there is a variation in the statements with regard to place, from which, the dead body of the deceased Firoz was recovered. PW1 Mehboob Husain, PW2 Mohd. Husain, PW3 Liyakat, PW10 Kadeer Ahmad, PW8 S.I. Mohan Chandra Pandey and PW9 Senior Sub Inspector, Ravindra Kumar, all have stated that they found the dead body of the deceased from the veranda of the appellants. PW9 Senior Sub Inspector, Ravindra Kumar prepared a site plan. PW1 Mehboob Husain also stated that first they spotted blood in a room. He has stated about the location of the room in the house of the appellants. There is substantially no variation in the statements of the witnesses with regard to the place from where the dead body was recovered. Exhibit A-14 is the site plan prepared by PW9 Senior Sub Inspector, Ravindra Kumar. On the north-eastern portion of the house, in a room, blood was spotted and in the veranda, the place has been indicated from where the dead body was recovered. The place from where the dead body of the deceased was found is established. Although, a question has been raised, as to whether, the dead body was recovered from the house of the deceased or not. It, in fact, has been proved by the statements of PW1 Mehboob Husain, PW2 Mohd. Husain, PW3 Liyaqat, PW4 Smt. Sahnaaj, PW5 Saleem, PW8 S.I. Mohan Chandra Pandey, PW9 SSI Ravindra Kumar and PW10 Kadeer Ahmad. PW1 Mehboob Husain, PW2 Mohd. Husain, PW3 Liyaqat, PW4 Smt. Sahnaaj, PW5 Saleem and PW10 Kadeer Ahmad saw the dead body. These witnesses have been cross-examined at length. There is no discrepancy or contradiction or inconsistency in their statements, which may discredit their veracity on this fact. Prosecution has categorically proved that the dead body of the deceased Firoz was found in the house of the appellants. It was kept beneath the bed of straw in the veranda of the appellants' house.

There was no light in the house of the appellants. In fact, this fact has been admitted by appellant Mukhtyar in his statement under Section 313 of the Code. DW2 Hasmeen states that because there was some fault in the electricity in their house, therefore, appellant Alim had gone to get a electrician to rectify default. The fact remains that there was no light in the house of the appellants. Prosecution had proved that there was electricity in the village. Had the appellants wilfully disconnected their electricity, so as to avoid the search been made in their house? Had it been an attempt of the appellants to hide the dead body of the Firoz? Appellants were not in their house, when the inquest was prepared. Inquest report has been proved by the witnesses. PW8 Sub Inspector, Mohan Chandra Pandey prepared it. PW2 Mohd. Husain and PW10 Kadeer Ahmad are other witnesses of the inquest. Had the appellants ran away from their house. If not, why they were not there? Why did they leave their house? After all, a dead body was found in their house. It was they to tell, as to how did the deceased die. It was they, who would have been in a better position to explain the things about the circumstances, under which, the deceased died in their house. Undoubtedly, all the appellants reside in the same dwelling house.

A question has been raised, as to why, a young boy was called to settle the boundary dispute. At the first glance, it sounds well. If there was a boundary dispute between the parties, how a boy of 16 years, would settle the dispute. But then, there are statements of PW4 Smt. Sahnaaj that appellant took the deceased Firoz with him to settle the dispute. She has also stated that for the reason of the dispute, the appellants had fights with her husband Mehboob Hussain and with her son Firoz, the deceased. PW4 Sahnaaj states that when Firoz was leaving with appellant Alim, she had cautioned him to be careful. PW3 Liyakat also states that he had seen appellant Alim and the deceased Firoz going towards the house of the appellants.

Learned counsel for the appellants would discredit the evidence of Liyakat on the ground that he is interested witness. It is true that PW1 Mehboob Hussain, at one stage, has stated that PW3 Liyakat is his cousin, but in his statement recorded on 04.08.2011, he has stated that PW3 Liyakat is not his real cousin. He has not stated that Liyakat is his first cousin. According to him, both belongs to the same village, hence he says that Liyakat is his cousin. PW3 Liyakat also denies that he is cousin of PW1 Mehboob Husain.

Even if there is a relationship, it is not a rule of law that evidence of a relative should be discarded, terming it as an interested witness. The truthfulness of the witness has to be evaluated. PW2 Mohd. Husain is another important witness, who heard the voice of the deceased from the house of the appellants on that day. Both PW2 Mohd. Husain and PW3 Liyakat as well as PW1 Mehboob Husain have been extensively cross-examined. PW4 Sahnaaz, mother of the deceased has also been extensively cross-examined. Nothing has been elicited, which may discredit or cause any doubt on the statements of these witnesses. Therefore, this Court is of the view that, in fact, on the date of incident, Alim called the deceased Firoz and took him to his house. Parties had enmity. Deceased Firoz did not return, thereafter, when search was made, appellants told that deceased had already left their house. When the deceased Firoz could not be traced till late in the evening at 10:00 PM, an attempt was made to enter the house of appellants, to which, the appellant Mukhtyar resisted, but when finally search was made, from the veranda, beneath the bed of straw, dead body of the deceased Firoz was found. There was electricity in the entire village, but there was no electricity in the house of the appellants.

PW6 Dr. Kamesh Rana had proved the injuries on the deceased. There was a ligature mark. There was a contusion and congestion, cricoid cartilage was broken. Inquest report also describes the ligature mark at the back side of the neck. It was a death by strangulation. There is no doubt about it. It has been proved by the prosecution that the deceased Firoz died due to asphyxia caused by strangulation.

This Court is of the view that all these facts have been proved by the prosecution beyond all reasonable doubt. Here, it may be mentioned that the learned court below acquitted the appellants - Samad and Sarwari Begum of the charge under Section 302 r/w 34 IPC. Learned court below concluded that they were not present in the house when the deceased Firoz was killed, but they have been convicted under Section 201 IPC for causing disappearance of the evidence.

As stated hereinbefore, none has seen the appellants killing the deceased. The question is, who killed the deceased Firoz. It is not suicidal. It is homicidal. The dead body has been found in the dwelling house of the appellants. In such cases, the provisions of Section 106 of the Indian Evidence Act, 1872 are to be invoked.

In the case of Trimukh Maroti Kirran vs. State of Maharashtra (2006) 10 Supreme Court Cases 681, while discussing the death of a bride, the Hon'ble Supreme Court has held as under, in paras 13 and 14 of the judgment.

"13............................................................................................................................................................

These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in court as they want to keep aloof and do not want to antagonise a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the house should go unpunished."

If an offence takes place inside the privacy of 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 Prosecutions 1994 AC 315: (1944) 2 All ER 13 (HL)-quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh (2003) 11 SCC 271: 2004 SCC (Cri) 135) 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 travelling on a railway without ticket. The burden of proving that he had a ticket is on him."

The Court further observed in para 15 as hereunder:

"15. 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 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."

Appellants - Mukhtyar and Alim are convicted under Section 302 IPC. Alim, in his examination under Section 313 of the Code in answer to a question no.89, states that the deceased Firoz raped Hasmeen, the daughter of appellant Mukhtyar on 23.12.2010 and to conceal it, false case has been instituted. He was not present in the house at the relevant time. Similar answer has been given by appellant Mukhtiyar, in his examination under section 313 of the Code. They have not stated as to how the deceased died. The burden was upon appellants Mukhtiyar and Alim. No explanation, as such, has been given by these appellants about the death of the deceased Firoz in their house. It proves the guilt of the appellants Mukhtiyar and Alim.

If this aspect is considered from other angle, on behalf of the appellant, it is argued that when the deceased Firoz was raping the Hasmeen, daughter of the appellant Mukhtyar, hearing her cry, appellant Mukhtyar reached at the spot and in the scuffle, the deceased was killed. Appellant Mukhtyar and Alim, both had an opportunity to explain it before the learned court below, which they did not do.

On the other hand, DW2 Hasmeen, daughter of appellant Alim states that on the date of incident, the deceased Firoz entered her house and raped her. When she cried, her father appellant Mukhtyar came and in the scuffle, with the help of the telephone wire, she caused the death of the deceased Firoz by strangulation. Here, DW2 Hasmeen has not stated that appellant Mukhtyar killed the deceased Firoz, instead, she says that it is she, who killed the deceased Firoz. Here is a variation as to what is argued and what is stated by DW2 Hasmeen. There is a third story also. In her cross-examination, DW2 Hasmeen was confronted with a statement given by her to the Sub-Division Magistrate on 26.12.2010. In her cross-examination recorded on 01.02.2014, she admits that she had told earlier that on the date of incident at 12:00 PM, deceased had come to her house. Her brother had turned him back, but again after ten minutes, when he came and entered in her room, appellant Mukhtyar caught hold of him and killed him. Though, she stated that this statement was given by her under the threat of the Police. It cannot be believed. Statement of DW2 Hasmeen is not reliable, for the simple reason that according to her, she was sent to Nari Niketan on 26.12.2010 and she was released from Nari Niketan on an application given by her sister Jasmin on 27.01.2011. It means that she was in Nari Niketan for about one month, but she did not lodge any report. She did not tell to anyone that under the threat of the Police, her statement was recorded by Sub-Divisional Magistrate. She admits that while in the Nari Niketan, she did not complained about the rape having been committed with her. She did not ask for her medical examination. Why?

What the Court has evaluated in the preceding paragraphs 45 & 46, on the question of explanation given by the appellants, about the cause of death of the deceased Firoz, is as hereunder:-

(i) Arguments advanced on behalf of the appellants.

(ii) Statement of DW2 Hasmeen in the Court.

(iii) Statement of DW2 Hasmeen recorded by Sub-Divisional Magistrate on 26.12.2010, which DW2 Hasmeen has admitted to have given. In all the above three stages, there are three explanations about the death of deceased Firoz. This is false explanation. As stated, appellants Alim & Mukhtyar have not given any explanation as to how the deceased died in their dwelling house. It further proves the guilt of appellant Alim and Mukhtyar.

In view of the foregoing discussion, this Court is of the view that prosecution has been able to prove beyond reasonable doubt the charges under Section 302 r/w 34 IPC and 201 IPC against the appellants Alim and Mukhtyar and prosecution has also been able to prove the charge under section 201 IPC against the appellants Samad and Smt. Sarwari Begum. Learned court below did not commit any error in convicting and sentencing the appellants. Therefore, there is no merit in these appeals and they deserve to be dismissed.

Both these appeals are dismissed.

Let the copy of this judgment be sent to the court below for compliance.