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Judgment
This criminal appeal under Section 374 of CrPC preferred by
the appellant, was received by post through Jail, against the
judgment of conviction and order of sentence dated 10.02.2011
passed by learned Additional Sessions Judge (Fast Track) No. 2,
Jhunjhunu in Sessions Case No. 31/2010 (47/2010), whereby the
appellant has been convicted under Section 302 of IPC and
sentenced to life imprisonment with a fine of Rs.5,000/- and in
default of payment of fine to further undergo one years'' simple
imprisonment.
Prosecution story in brief is that on 17.01.2010, the
complainant Devkaran S/o Rameshwar Lal Meghwal submitted a
written report (Ex.P-4) to SHO, Police Station Mandawa stating
therein that his sister Manju Devi was married with Shyopal S/o of
Gheesa Ram, by caste Balai, Ward No. 17, Mandawa. He got
telephonic information that death of his sister Manju Devi has
occurred by burns. Thereafter, he informed his family members and
went to the spot, with some persons. He saw there that his sister
was completely burnt and her death took place on the spot.
Thereafter, they did not allow her funeral and discussed the matter
for inquiry. Thereafter, we are submitting this application to you with
request to inquire into the matter. It is pertinent to mention that
her husband Shyopal came to home before two days from abroad
and thereafter, this incident took place. His bahnoi (brother-in-law)
Shyopal gave beating several times to his sister Smt. Manju Devi. In
the night of 16.01.2010, his bahnoi (brother-in-law) Shyopal burnt
his sister Manju Devi to death. So please take legal action against
Shyopal.
On the basis of above written report, FIR No. 4/2010 was
registered at Police Station Mandawa, District Jhunjhunu for offence
under Section 302 of IPC and investigation commenced. After
completion of investigation, the police filed charge-sheet against the
accused/appellant under Section 302 of IPC in the Court of Judicial
Magistrate, Jhunjhunu who committed the case to the Sessions
Judge, Jhunjhunu and thereafter, the case was transferred to
Additional Sessions Judge, (Fast Track) No. 2, Jhunjhunu.
The learned Trial court framed charge under Section 302 of
IPC against the accused/appellant. Charge was read over and
explained to the accused/appellant who pleaded not guilty and
sought to be tried.
In order to support it''s case, prosecution examined 14
witnesses and exhibited 26 documents.
Thereafter, learned Trial court put oral evidence of the
prosecution witnesses and documentary evidence produced by the
prosecution, to the accused/appellant under Section 313 of CrPC. In
reply to the prosecution evidence, the accused/appellant stated that
he came from abroad on 15.01.2010. On 16.01.2010 at about 3.00
PM, he went to market of Mandawa to meet with his friends, where
he got information about burning of his wife, then he immediately
rushed to his house. The appellant also stated that he loved his wife
(Manju) very much. Manju died due to fire of hearth while preparing
food, he did not set her on fire. The appellant further stated that his
in-laws have falsely implicated him due to enmity. The
accused/appellant did not produce any witness in defence.
After completion of trial, the learned Trial court convicted
the appellant for the offence under Section 302 of IPC and sentenced
him as indicated hereinabove.
Being aggrieved with the judgment of conviction and order of
sentence awarded by the learned Trial court, the accused/appellant
has preferred this appeal through Superintendent of Central Jail,
Jaipur, against the impugned judgment dated 10.02.2011.
As the present appeal was received by post, Mr. Anurag
Sharma was appointed as Amicus Curiae, but later on Mr. Deepak
Soni, advocate filed Vakalatnama for the appellant.
Mr. Deepak Soni, learned counsel for the accused/appellant
submitted that the prosecution has come out with a case that the
deceased Manju Devi was married with the appellant before 18
years, even then she was issueless, therefore, the appellant was
willing to perform second marriage and used to torture her, gave
her beatings several times and for that reason, he burnt her to
death. But the said motive is completely missing in the written
report (Ex.P-4). Therefore, the motive story put forth by the
prosecution is afterthought and cannot be relied upon. Learned
counsel also submitted that admittedly, marriage of the deceased
Manju with the appellant, was solemnized before about 18 years,
which fact itself is sufficient to negate the motive story put forth
by the prosecution.
Learned counsel for the appellant also submitted that there
are several infirmities and contradictions in the statement of
prosecution witnesses, therefore, no reliance can be placed on the
testimony of such witnesses. Learned counsel further submitted
that the whole prosecution case revolves around the statement of
PW-6 Smt. Basanti Devi, who is also married in the family of the
appellant with his brother Prahlad, thus, she is sister of the
deceased and bhabi (sister-in-law) of the appellant. Her
deposition cannot be relied upon because her statement was
recorded by the police after two months of the incident.
Learned counsel for the appellant also submitted that the
case rests upon circumstantial evidence and it is requirement of
the law that there should be no missing link in the chain of
circumstances and all the chain of circumstances should be
completed, but in the present case, the prosecution has miserably
established any of the circumstances.
Learned counsel further submitted that in the case of
circumstantial evidence, conviction cannot be based only upon the
theory of last seen together or the accused and the deceased were
living in a house jointly. Learned counsel for the appellant further
submitted that according to prosecution, Manju Devi died in
evening of 16.01.2010, and when she was burning in the house,
Shyopal was sitting out of the house, and when Smt. Basanti Devi
(PW-6) went there, the appellant ran after her with a stick, but
the FIR was registered on next day at 5.20 PM. Thus, there is
material delay in lodging the FIR and the same has not been
properly explained and it reveals that the case is falsely fabricated
against the appellant due to enmity.
Learned counsel also submitted that the learned Trial court
has not properly considered the statements of prosecution
witnesses and discussed the same in routine and passed the
impugned judgment against the criminal jurisprudence, thus, the
conviction of the appellant is bad in law. Learned counsel for the
appellant placed reliance on:-
2016 (1) RCC (Raj.) 451 Ravindra @ Ravi VS. State of Rajasthan.
2.(2016) 9 Supreme Court Cases 337 Kala Alias Chandrakala Vs. State through Inspector of Police
3.2016 (10) Supreme Court Cases 298 Nathiya Vs. State
(2016) 10 Supreme Court Cases 519 Joes @ Pappachan Vs. Sub-Inspector of Police, Koyilandy & Anr.
Per contra, Mr. N. S. Dhakad, learned Public Prosecutor has
supported the impugned judgment and submitted that the learned
Trial court has rightly convicted the accused/appellant on the basis
of cogent and reliable evidence which proved his guilt beyond
reasonable doubt. Learned Public Prosecutor also submitted that
this is the case of unnatural death inside the house, but he did not
offer an explanation as to how and when he parted company. As
he did not submit probable and satisfactory explanation, and did
not discharge the burden cast upon him by Section 106 of the
Evidence Act, therefore, the Court can consider his failure as an
additional link which completes the chain.
First of all, it is to be decided that whether death of Smt.
Manju Devi, sister of Dev Karan (PW-3) and wife of the appellant
Shyopal, has caused by burns in unnatural circumstances.
In written report (Ex.P-4) submitted by PW-3 Dev Karan, it is
mentioned that on receiving telephonic information that death of
his sister, Manju Devi has caused by burns, he informed his family
members and went to the spot with some persons, where he saw
that his sister was completely burnt and her death took place on
the spot. In this respect, PW-3 Dev Karan has stated that on
17.01.2010, his cousin Pramod informed him that Shyopal poured
kerosene on his sister Manju and set her on fire and burnt her to
death in his own house in the night about 7-7.30 PM. Thereafter,
he along with some persons went to the house of his sister Manju
in Mandawa, the house was burnt and he saw that Manju was
completely burnt.
PW-2 Gopal has stated that on 17.01.2010, Dev Karan told
him that accused/Shyopal has burnt his sister to death and on his
request he and some other persons of the village, went to
Mandawa with Dev Karan, where they saw that body of Manju was
completely burnt. The witness also proved his signatures on
memo of condition of body Ex.P-2, site plan Ex.P-1, memo of
confirmation of place of occurrence by the accused Ex.P-3.
PW-1 Mahendra Singh is cousin of the deceased Manju Devi,
who stated that Shyopal has burnt his cousin Manju Devi to death.
Police prepared site plan of place of occurrence Ex.P-1 and the
witness has proved his signatures thereon.
PW-4 Indraj is also cousin of the deceased, who stated that
Shyopal has burnt his cousin Manju to death in Mandawa. He
went there and saw Manju in completely burnt condition. PW-5
Nathu also gave similar statement.
PW-6 Smt. Basanti Devi is sister of the deceased and bhabi
(sister-in-law) of the accused/appellant, who stated that on
information of fire in Shyopal''s house, she rushed there. She saw
there that Shyopal was sitting out of the house and Manju was
burning inside. There was smell of kerosene. She also stated that
Shyopal set her (Manju) on fire with kerosene.
PW-14 Dinesh Kumar, Investigation Officer has stated that
on 17.01.2010, he was SHO, Police Station Mandawa. On that
day, Dev Karan submitted a written report Ex.P-4 to him
whereupon FIR (Ex.P-5) was registered and he commenced
investigation. He prepared Site Plan (Ex.P-1), Panchayatnama of
dead body Ex.P-2. After post-mortem examination, dead Body of
the deceased was handed over to Dev Karan vide Ex.P-6.
PW-8 Dr. Rajveer has stated that on 18.01.2010 he was
Medical Officer in CHC, Mandawa. On that day, Medical Board of
three members including him was constituted. Dead body was
brought by SHO Mandawa, which was identified by Dev Karan,
brother of the deceased and Gopal, uncle of the deceased Manju
wife of Shyopal Meghwal. Police told that the death has caused
due to burns. Relatives of the deceased told that death took place
before 48 hours. Post-mortem examination was done on
18.01.2010 at 11.45 AM. Dr. Rajveer (PW-8) has also stated that
on examination of the dead body, he found that the dead body
was 100% burnt and it was of third category burn. A thermal
fracture on frontal bone in mid-line with separation of sagital
suture seen. Four metallic bangles in both hands. Flexion at elbow
and wrist joint. Scalp, Skull, Vertebrae, Membranes, Brain and
Spinal Cord, Thorax were burnt. Liver, spleen and Kidneys were
dark brownish coloured. Small intestine and Large intestine were
reddish brown coloured. Bladder was burnt. Opinion of the
Medical Board was reserved till histopathological and FSL report.
The witness proved post-mortem report Ex.P-13. The witness also
stated that according to FSL report Ex.P-14, portions of viscera of
the deceased Manju Devi sent for chemical analysis gave positive
tests for the presence of Carboxyhaemoglobin and gave negative
tests for metallic poisons, ethyl and methyl alcohol, cyanide,
alkaloids, barbiturate, tranquillizers and insecticides. The witness
also stated that according to histopathological report, the death
was caused due to burns.
The accused/appellant in his statement under Section 313 of
CrPC has admitted that death of his wife Manju Devi has caused
by burns. He also stated that she was burnt by fire of herth, while
preparing food, he did not set her on fire.
From the evidence produced by the prosecution and
admission made by the accused/appellant in his statement under
Section 313 of CrPC, it is proved that death of Smt. Manju Devi,
wife of the appellant and sister of the complainant Dev Karan (PW-
3), has caused by burns on 16.01.2010 and her death is
unnatural.
There is no eye witness of the incident of pouring kerosene
on the body of Smt. Manju Devi and to set her on fire. The case of
the prosecution rests upon circumstantial evidence. Prosecution
has come out with a case that the deceased Manju Devi was
married with the appellant before 18 years, even then, she was
issueless, which was the cause of dispute between husband and
wife. The appellant used to give her beatings and torture his wife,
the deceased. He was willing to perform second marriage. The
relation between the appellant and his in-laws were not cordial
and he used to avoid attending the functions in his in-laws.
In this respect PW-3 Dev Karan, on whose written report, the
FIR was registered, has stated that his sister Manju was married
with Shyopal before 17-18 years. His sister was issueless,
therefore, Shyopal used to give her beatings and torture her after
taking liquor. The accused/appellant used to say to Manju that if
no child, then he will kill her and perform second marriage.
Whenever she came to maternal home, she used to tell him. In
cross-examination, the witness stated that he never reported the
matter of Shyopal''s maltreatment with Manju. The witness also
stated that there was an estrangement between him and Shyopal.
He cannot say as to on which day, Shyopal maltreated her.
PW-2 Gopal has stated that Manju Devi married with
Shyopal. The dispute arose between them after 4-5 years of the
marriage, for no child till then. Shyopal used to say that he will
perform second marriage because she is sterile and on this
pretext, he used to maltreat her.
PW-4 Indraj, PW-5 Natthu and PW-6 Smt. Basanti Devi also
gave similar statements, as given by PW-3 Dev Karan.
Learned counsel for the appellant contended that though, the
prosecution witnesses have deposed that Manju Devi was married
with the appellant before 18 years, even then, she was issueless,
which was the cause of dispute between husband and wife.
Therefore, the appellant was willing to perform second marriage
and for that reason, he burnt her to death, but the said motive is
completely missing in the written report Ex.P-4, submitted by
brother of the deceased Dev Karan PW-3. Therefore, the motive
story put forth by the prosecution is afterthought and cannot be
relied upon.
It is settled law that FIR is not an encyclopedia of the case,
therefore, the case of the prosecution cannot be thrown on the
ground that the motive story put forth by the prosecution is
missing in the written report. The complainant has mentioned in
the written report Ex.P-4 that his bahnoi (brother-in-law) Shyopal
gave beatings to his sister Smt. Manju Devi several times. The
witness Dev Karan was examined by the police on the same day
i.e. 17.01.2010 and in police statement Ex.D-1, Dev Karan (PW-3)
has clearly stated that deceased Manju Devi married with Shyopal
before about 18 years and she was issueless, therefore, the
appellant was willing to perform second marriage, and used to
torture her and gave her beatings several times. Therefore, non-
mention of reason of beating, in the FIR is of no consequence.
Therefore, there is no reason on record to disbelieve the
deposition made by the prosecution witnesses that the deceased
Manju Devi was issueless, which was the cause of dispute between
husband and wife. The appellant was willing to perform second
marriage and used to torture his wife Manju Devi and gave her
beatings several times. In these circumstances motive theory put
forth by the prosecution cannot be disbelieved.
In the case of Vijay Shankar Vs. State of Haryana
reported in (2015) 12 Supreme Court Cases 644, Hon''ble
Apex Court has held that in each and every case, it is not
incumbent on the prosecution to prove the motive for the crime.
Often, motive is indicated to heighten the probability of the
offence that the accused was impelled by that motive to commit
the offence. Proof of motive only adds to the weight and value of
evidence adduced by the prosecution. If the prosecution is able to
prove it''s case on motive, it will be a corroborative piece of
evidence. But even if the prosecution has not been able to prove
it''s case on motive that will not be a ground to throw the
prosecution case nor does it corrode the credibility of the
prosecution case. Absence of proof of motive only demands
careful scrutiny of evidence adduced by the prosecution. In the
present case, absence of convincing evidence as to motive makes
the court to be circumspect in the matter of assessment of
evidence and this aspect was not kept in view by the High Court
and the trial court.
According to prosecution, the appellant Shyopal was working
in Muscat (Arab). He went there before 6-7 months and returned
on 15.01.2010 from abroad. The appellant also admitted this fact
in his statement recorded under Section 313 of CrPC. The
appellant also stated that on 16.01.2010 at about 3.00 PM, he
went to the market of Mandawa to meet with his friends, where he
received information of burning of his wife and then he came to
his house forthwith. From the statement of the appellant, it
reveals that he was residing with his wife Manju Devi in his house.
It also reveals that the appellant was in his house with the
deceased upto 3.00 PM on 16.01.2010 and the incident of burning
took place after 3.00 PM on that day.
According to Smt. Basanti Devi (PW-6), the appellant was
taking liquor in the day hours of 16.01.2010 and in evening, he
set her (Manju) on fire by kerosene. She also stated that she was
sleeping in her house being suffering from typhoid. Her little son
came to her and told that fire took place in the house of uncle
Shyopal. Then she rushed to the house of the appellant. She saw
there that the appellant was sitting out of his house and Manju
was burning inside. She also felt smell of kerosene there. The
appellant ran after her with stick and told to kill her also. The
witness did not say that she saw the appellant pouring kerosene
over Manju and setting her on fire. According to her, she went
after the fire and she saw the appellant sitting out of his house
when Manju was burning inside the house. Though, this witness
was examined by the police on 19.03.2010 i.e. after two months
of the incident, but only on this ground, evidence given by her can
not be disbelieved, because her statement also gets corroboration
from the statement of accused/appellant himself, and it is proved
that in evening hours of 16.01.2010 wife of the appellant Smt.
Manju burnt to death in the house, where she was residing along
with the appellant. It is also proved that the appellant was also
there at his house when the deceased was burning inside the
house, but the appellant has not explained the circumstances
regarding death of his wife Manju Devi.
In Munna Kumar Upadhyaya @ Munna Vs. State of
Andhra Pradesh reported in (2012) 6 SCC 174, Hon''ble the Apex
Court held that statement under Section 313 of Cr.P.C. is to serve
a dual purpose, firstly, to afford to the accused an opportunity to
explain his conduct and secondly to use denials of established
facts as incriminating evidence against him. If the accused gave
incorrect or false answers during the course of his statement
under Section 313 of Cr.P.C., the court can draw an adverse
inference against him.
In our opinion, facts admitted by the accused/appellant
require no further proof by the prosecution. Therefore,
examination of Smt. Basanti Devi (PW-6), after two months of the
incident is not fatal to the prosecution.
As discussed above, the incident of burnt to the death of
Manju Devi, took place in the evening of 16.01.2010. According
to PW-3 Dev Karan, PW-2 Gopal and PW-5 Natthu, it reveals that
on 17.01.2010, brother of the deceased Dev Karan (PW-3)
received all information of her death. Then he came to Mandawa
along with some persons and after deliberations, he lodged the
report with the police. Though, there are some contradictions
regarding time and manner of receiving information of death of
Manju Devi but that is of no consequence because this is not the
case of the appellant that he informed or instructed anyone, to
inform to his in-laws regarding the incident.
It is pertinent to note that there is nothing on record to
suggest that the appellant would have made any efforts to save
his wife Manju Devi from fire, or he sought help of anyone for this
purpose. Even, the appellant did not inform to the police about
the incident. These circumstances create doubt on the conduct of
the appellant. Moreover, it supports the prosecution story that
relations between the appellant and the deceased were not
cordial, because she was issueless and the appellant was willing to
perform second marriage and he used to torture her and gave her
beatings several times.
To our mind, provisions of Section 106 of the Evidence Act,
1872 applies in this case, which provides inter-alia that when any
fact is especially within the knowledge of the any person, the
burden of proving that fact is upon him. Section 101 of the
Evidence Act lays down the general rule that the burden of proof
in criminal case is upon the prosecution and Section 106 is not
intended to relieve the prosecution of that duty. Section 106
provides to meet certain exceptional cases, where it would be
impossible and disproportionately difficult for the prosecution to
establish the facts, which are especially in the knowledge of the
accused and which he could prove without difficulty or
inconvenience.
In Ganeshlal Vs. State of Maharashtra reported in
(1992) 3 SCC 106, 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 CrPC. 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.
In Trimukh Maroti Kirkan Vs. State of Maharashtra
reported in (2006) 10 SCC 681, Hon''ble Apex Court has 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 also said
that 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.
Similarly, in Dnyaneshwar Vs. State of Maharashtra,
reported in (2007) 10 SCC 445, Hon''ble Apex 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 possibility of an
outsider committing the offence, it was for the husband to explain
the grounds for the unnatural death of his wife.
In State of Rajasthan Vs. Thakur Singh reported in
(2014) 12 Supreme Court Cases 211, wife of the accused died
of unnatural death in a room occupied only by both of them.
There was no evidence of anybody else entering the room. Hon''ble
Apex Court observed that facts relevant to cause of death being
only known to accused, and he did not explain them, therefore,
there is strong presumption that accused murdered his wife.
Hon''ble Apex Court set aside the order passed by the High Court
and restored the judgment of conviction passed by the trial Judge.
In view of the discussions made above, it is settled position
of law that the burden of proving the guilt of an accused is on the
prosecution, but there may be certain facts which especially within
the knowledge of the accused and are virtually difficult for the
prosecution to prove, the burden of proving that fact is upon the
accused to explain as to how and when he parted company. If he
furnish an satisfactory explanation, he must be held to have
discharged his burden. But 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.
Here in this case, the appellant, Shyopal and the deceased,
Manju Devi are husband and wife having no child and they were
the only occupant of the house, where the incident took place,
therefore, it was obligation of the appellant to have tendered
some explanation in order to avoid any suspicion as to his guilt.
Since Smt. Manju Devi died of an unnatural death in the room
occupied by her and the appellant Shyopal, the cause of unnatural
death was known to the appellant. There is no evidence that
anybody else has entered in their room or could have entered.
The appellant has offered an explanation that he went to market
of Mandawa at 3.00 PM to meet with his friends, where he
received an information about burning of his wife Manju Devi, and
then he rushed to his house. But he did not disclose the fact that
who informed him about the incident of burning, even he did not
produce any witness in this regard or any of his friends with whom
he met on that day after 3.00 PM. Therefore, the explanation put
forth by the appellant is found to be false. The appellant has not
set up any case that some other persons entered in room and
caused the unnatural death of his wife Manju Devi. The relevant
facts to the cause of death of Manju Devi being only known to
Shyopal, the appellant, yet he did not disclose the facts or
explained them. Therefore, there is a strong presumption that the
deceased Smt. Manju Devi was murdered by her husband, the
appellant Shyopal.
In State of Rajasthan Vs. Kashiram reported in (2006)
12 Supreme Court Cases 254, Hon''ble Apex Court observed
that 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 especially 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.
As discussed above, unnatural death of Smt. Manju Devi,
wife of the appellant took place in the house of the appellant, in
evening hours of 16.01.2010. The appellant and the deceased
were the only occupants of the house, where the incident took
place. Admittedly, the appellant was with his wife Manju Devi in
the house, upto 3.00 PM on that day. Therefore, it was his
obligation to tender some explanation to avoid any suspicion as to
his guilt because the burden was upon him to prove how and
when he parted company. Since those facts were especially within
knowledge of the appellant and he failed to do so. Therefore, it
must be held that he failed to discharge the burden cast upon him
by virtue of Section 106 of the Evidence Act. This circumstance
provides the missing link in the chain of circumstances, which
prove the guilt of the appellant beyond reasonable doubt.
In Ravindra @ Ravi VS. State of Rajasthan (supra),
Coordinate Bench of this Court has held that when the case of
prosecution is based on the version of eye witness, provisions of
Section 106 of Evidence Act, not applicable.
In Kala Alias Chandrakala Vs. State through Inspector
of Police (supra), the accused/appellant, wife of the deceased,
along with her father and nephew allegedly strangulated deceased
to death with a saree and placed his body under a bridge of
canal. The case depends upon circumstantial evidence and extra
judicial confession made by the appellant to sister of the
deceased, however, the appellant was not having good
relationship with her. Body was not recovered at the instance of
accused. Further, recovery of a moped and pieces of nylon saree
were not proved to be related to commission of offence and to be
incriminating materials. Hon''ble Apex Court observed that the
appellant had not kept quiet and had clearly stated in her
statement under Section 313 of CrPC that she had gone to police
station along with photograph of deceased and had also stated
that the deceased frequently used to go outside for 2 to 5 days. It
explains her conduct and nothing more can be attributed to her
exclusive knowledge which she was require to explain within
preview of Section 106 of the Evidence Act. Knowledge of any
other fact is attributable to her in view of evidence adduced in the
case and the appellant was acquitted giving her the benefit of
doubt. Due to difference in facts and circumstances of the case,
the law laid down by Hon''ble Apex Court in this case, is not of
much help to the appellant.
In Nathiya Vs. State represented by Inspector of Police
(supra), it was alleged by the prosecution that there was illicit
relationship between wife of the deceased and her paramour (both
appellant-accused), eventually led to their allegedly killing the
deceased. Body of the deceased found floating in a well. The
Hon''ble Apex court has observed that the well is away from
residence of the deceased, for which any definitive presumption
against his wife, as a conspirator of crime, cannot be drawn
without the risk of going wrong to cast a burden on her, as
contemplated under Section 106, Evidence Act . PW-3 Packiammal
stated to have heard shrieks of deceased, followed by a loud
sound of a fall inside the well. There is no evidence that
immediately thereafter, the appellants were seen in the vicinity of
the well. Noticeably, chappals of deceased were found by the side
of the well. PW-4 stated that when dead body was recovered from
the well, both the appellants were present and wife of deceased,
was seen weeping by his side. Hon''ble Apex Court opined that it
would be wholly unsafe to sustain their conviction and acquitted
the appellants giving the benefit of doubt. Due to difference in
facts and circumstances of the case, this is also not of much help
to the appellant.
In Jose @ Pappachan Vs. Sub-Inspector of Police,
Koyilandy & Anr. (supra), It was alleged that the appellant
smothered his wife inside the room of his house, strangulated her
by using a plastice rope and then hanged her from a hook of the
roof of the work area of the house by using saree and thus,
brutally murdered her. Testimony of defence witness DW-1 (son of
appellant) that relationship between his mother and father was
very cordial. Medical evidence also does not decisively establish
case of homicidal hanging. Doctor performing the post-mortem
examination, highlighted the absence of characteristic attributes
attendant on death due to homicidal hanging following
strangulation, further reinforce the possibility of suicide. There
was no any persuasive evidence to held that at the relevant time,
the appellant was present in his house. Hon''ble Apex court has
held that it is impermissible to cast any burden on him under
Section 106 of Evidence Act. Due to difference in facts and
circumstances of the case, the law down in this case, is also not of
much help to the Appellant.
In view of the discussions made above, the evidence
produced by the prosecution is cogent and reliable and unerringly
points towards the guilt of the appellant. The possibility of any
such hypothesis, which may be compatible with the innocence of
the appellant is ruled out and the prosecution has successfully
proved the charge of Section 302 of IPC against he
accused/appellant beyond reasonable doubt. The learned Trial
court was fully justified in convicting the appellant. There is no
scope to interfere in the impugned judgment of conviction and
order of sentence passed by the learned Trial court.
For the above reasons, we see no infirmity in the impugned
judgment to call for our interference.