Vishambhar Dayal vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.—In the instant case, Vishambhar Dayal was married with Smt. Sushila (deceased), twenty-three/twenty-four years ago. From the womb of Smt. Sushila and loins of Vishambhar Dayal, four children, two sons, namely Raju and Shayar and two daughters, namely Parwati and Suman, were born.

It is an admitted fact that on 22.09.2005, the dead-body of Smt. Sushila was found in her matrimonial home in the locality called as Acharya-ki-Dhani, Tan Bari, Fatehpur, falling within the jurisdiction of Police Station, Sadar Fatehpur, District Sikar.

Inquest proceedings (Exhibit-P/4) specifically stated that Smt. Sushila was lying in her room on the eastern side of the house belonging to the present appellant.

Smt. Sushila (deceased) on the day of incident was thirty-five years old. She had suffered eight injuries and died due to violence.

In the present case, the First Information Report, was lodged by Subhash (PW-2), the brother of present appellant, who on 22.09.2005 at 02:30 P.M. had submitted a written-report (Exhibit-P/3) alleging therein that since morning, his brother, Vishambhar Dayal and Bhabhi, Smt. Sushila were quarreling. On hearing noise of quarrel, he came to the house of his brother. His brother had closed the door of the house. Complainant knocked the door. After half an hour, his brother opened the door of the house and ran towards road. Inside the house, complainant found that his bhabhi was lying dead due to injuries caused on head, feet and hand.

On the basis of above said written-report (Exhibit-P/3) a formal First Information Report bearing No. 65/2005 (Exhibit-P/26) was registered at Police Station, Sadar Fatehpur, District Sikar for commission of offence punishable under Section 302 of Indian Penal Code.

The appellant was tried by the Court of Sessions Judge, Sikar and the said Court, vide its impugned judgment dated 29.04.2008, held the appellant guilty for commission of offence punishable under Section 302 of Indian Penal Code, and vide a separate order of even date, sentenced him to undergo life imprisonment and to pay a fine of Rs. 10,000/-. In default of payment of fine to further undergo six months rigorous imprisonment.

In the present case, the appellant was charged for commission of offence punishable under Section 302 I.P.C.

The charge stated that on 22.09.2005 at about 11:00 A.M. in his residential house situated at Tanbari, he gave beating to his wife Smt. Sushila with an iron-rod and caused her murder and, thus, committed offence punishable under Section 302 of Indian Penal Code.

Before the Court of Sessions, the appellant pleaded not guilty and claimed trial.

At the trial, prosecution, in all, had examined nineteen witnesses, apart from placing reliance upon several documents.

Thereafter, the statement of the accused was recorded under Section 313 of Code of Criminal Procedure, 1973. He denied all the incriminating circumstances and raised a plea that he is innocent and has not killed his wife. There was a dispute between him and his wife over an agricultural land. About two-years before the occurrence, she had already sold the land vide registered sale-deed (Exhibit-D/15). It was stated by the accused that his wife was lady of easy virtue. She was having illicit relations with one Mukesh S/o Laxman Acharya and one Sarpanch, Prahlad. Mukesh on the day of occurrence had also committed suicide by jumping into the well and his dead-body was recovered from the well after eight-days.

In the present case, the conviction of the appellant is based upon the deposition of two child eye-witnesses i.e. Shayar (PW-3), the son of the appellant, aged nine-years and daughter Parwati (PW-4), aged fourteen-years.

The said two child eye-witnesses, who have deposed against the appellant and stated in categoric terms that their mother was murdered by the present appellant, their father, have been duly corroborated by Sahodra (PW-5), Smt. Reshami (PW-6) and Smt. Kamla @ Parmali (PW-7) respectively.

Before we proceed with the evidence, eye-witnesses and neighbourers, who corroborated the testimonies of eyewitnesses, it will be apposite to notice here the medical evidence.

On 23.09.2005 at 10:00 A.M., Dr. Gangadhar Thakur (PW-12) along with Dr. Gordhan Shokiya and Dr. Bharti Sharma, who constituted a Medical Board, had conducted autopsy on the dead-body of Smt. Sushila, aged about thirty-five years.

As per Post-mortem Report, (Exhibit-P/25), the Board of Doctors, had found the following injuries on the person of deceased Smt. Sushila :--

"1. Bruise 4x 2 cm left temporal area

Lacerated wound 1x0.5 x 0.5 cm at bridge of Nose.

Lacerated wound 0.5 x 0.5 x 0.2 cm below right eye.

Penetrating wound (Penetrating) 1x1cm right elbow joint with dislocation of right elbow joint.

Penetrating wound 1x1 cm right knee joint with dislocation of right knee joint.

Penetrating wound 1 x 1 cm, 2 in number at left knee joint with dislocation of left knee joint.

Penetrating wound 1 x 1 cm at left elbow joint with dislocation of left elbow joint.

Bruise 8 x 6 at lower back."

The Board of Doctors, have also found haematoma beneath left temporal region. The left temporal bone was also found fractured. The brain and membrane were congested.

According to the opinion of the Board of Doctors, the cause of death was due to intra-cranial hemorrhage.

In cross-examination, this witness stated that the injury Nos. 4 and 7 were not caused by alleged weapon, which had caused injuries No. 2 and 3. Furthermore, injury No. 1 and 8 have not been caused by iron-rod.

Shayar, the son of the appellant, aged about nine-years, being child witness before he was put to the witness box was asked few question by the Court to assess his capability to depose as witness. The trial Court having satisfied itself that the child witness can depose, examined him as PW-3.

Shayar (PW-3) in the Court stated that the name of his mother is Smt. Sushila. His mother died, about eight/nine months ago. Prior to the death of his mother, his father was staying at Iraq. When his father was staying at Iraq, he along with his mother and sister Parwati stayed at Acharya-ki-Dhani. Raju is his brother, who is residing at Gujarat due to his employment. The day before the occurrence, his father Vishambhar Dayal had taken liquor and had given obscene abuses to his mother. In the morning, mother after taking bath had made tea. Then, father Vishambhar Dayal asked her to transfer agricultural land in his name. The witness stated that mother was having agricultural field in her own name, which was given to her by her brother. On refusal of the mother, father Vishambhar Dayal after calling his uncle Subhash and grand-mother, Laxmi, gave beating to the mother. The beating was started from the water tank. The father was armed with an iron-rod, uncle Subhash was armed with a lathi and grand mother (dadi) was having stone. They caused injuries to the mother near the water tank. It was at 09:00 AM., at that time, the witness and his sister Parwati made an attempt to save mother. They were also given push by their father. At that time, all the three accused were giving injuries to the mother. Aunt (Chachi) wife of Subhash was standing near the water tank. The witness stated that after push was given to them, father, uncle and grandmother dragged his mother inside the room. He and Parwati were locked in a separate room. The witness further stated that when the accused were causing injuries to mother, she was crying loudly and was saying that . After murdering his mother, father Vishambhar Dayal and grand-mother ran away from the spot. Uncle Subhash remained at the spot. The witness stated that he and his sister had witnessed the occurrence from the window. The witness stated that they were rescued from alleged room by the Police. Lastly, this witness stated that the clothes of the father were stained with blood.

Parwati (PW-4), the daughter of appellant, aged fourteen-years was also asked few question before she was made to step into the witness-box. Parwati (PW-4) has reiterated as to what was stated by his brother Shayar (PW-3).

The defence failed to cause any dent in the testimonies of Shayar (PW-3) and Parwati (PW-4), son and daughter of the appellant.

The above said witnesses have categorically and emphatically stated that the mother was given beating by the present appellant, their father, Vishambhar Dayal; uncle Subhash (PW-2) and grand-mother, Laxmi.

In the present case, Subhash against whom Shayar (PW-3) and Parwati (PW-4) have levelled allegation is the first informant, who presented written-report (Exhibit-P/3) and on the basis of which formal First Information Report was lodged.

This witness (Subhash PW-2), in trial has resiled from his previous statement and feigned ignorance regarding the incident and was declared hostile. However, this witness has admitted the fact that he had attested inquest proceedings (Exhibit-P/4).

As stated earlier, as per inquest proceedings, the dead-body was found in the house, which was in possession of the present appellant.

Sahodra (PW-5) stated that she knew Vishambhar Dayal, accused present in the Court. They are having adjoining field with Vishambhar Dayal. She heard cries of the children of Vishambhar Dayal, coming from the house of Vishambhar Dayal. She saw towards the house of Vishambhar Dayal, he had made his wife fall on the ground. She was being given injures by Vishambhdar Dayal, who was armed with an iron-rod. Subhash was armed with lathi and grand- mother, Laxmi was having stone (bhata). Lastly, this witness stated that all three accused had dragged Smt. Sushila inside the house.

To similar effect is the statement made by Rashami (PW-6) and Kamla @ Parmali (PW-7) respectively.

Ganpat Lal (Pw-15) stated that Sushila was his sister. She was married with Vishambhar Dayal in 1982. Vishambhar Dayal was staying in Iraq. This witness stated that twelve/ thirteen months before the occurrence, Sushila was given beating. He lodged report at Police Station, Fatehpur. Thereafter, compromise was effected. Thereafter, again beating were given and her death was caused. This witness stated that Sushila had informed him that in case, she will not transfer alleged plot in the name of her husband Vishambhar Dayal, he will finish her. This witness stated that he was informed by his nephew, Shayar and niece, Parwati that their mother was killed by Vishambhar Dayal, Subhash and their mother (grand-mother). Lastly, this witness stated that Vishambhar Dayal had killed his wife because she has refused to transfer the land, which was given to her by her father.

Ramwavtar (PW-9) stated that he was posted at Police Station, Sadar Fatehpur. He received a telephonic information at 02:00 P.M that Vishambhar Dayal had killed his wife. The informant had not disclosed his name on the telephone. On instruction of the Station House Officer, he along with other Members of the Staff, which included Babulal, Constable, Shayar Singh, Shyam Singh and Nand Singh, driver of the Government vehicle reached at the house of Vishambhar Dayal. The door of the house was open from the outside. He raised two voices. Nobody came. Then one girl child and boy gave call and asked for their release.

This witness had found dead-body in the house of the appellant. He had also released Shayar (PW-3) and Parwati (PW-4) from their confinement in the room.

We need not notice the statements of the remaining witnesses, who had participated in the investigation.

However, we must notice that Raju, an elder son of the deceased and accused appeared as DW-1. This witness stated that vide Exhibit-D/15, his mother had transferred agricultural land in favour of his father. The witness further stated that his mother was not having a good character. He had seen his mother doing wrong. The witness stated that he had gone to Gujarat due to wrong acts of his mother. The witness stated that his elder sister, Suman is married at Chhattargarh and Parwati, after marriage had not gone to the house of her in-laws.

In cross-examination by the Public Prosecutor, this witness stated that he had not lodged any complaint against the conduct of his mother.

In the present case, Prahlad Sharma has appeared as PW-14. He stated that he come to the scene of occurrence and found that children were locked in the room. Sushila was lying dead in the house.

Sahodra (PW-5), Smt. Reshami (PW-6) and Smt. Kamla @ Parmali (PW-7) are related to one Mukesh. Accused has levelled allegation that the deceased was having illicit relation with Mukesh and Prahlad Sharma. Thus, to impeach the credibility of the witnesses, a convenient mode has been adopted by the defence levelling allegation that the deceased was having illicit relations with Mukesh and Prahlad Sharma. Regarding the conduct of the deceased, no earlier complaint was made. Furthermore, neither Panchayat was called nor any relatives were informed. This is an attempt to chase wild goose.

Mr. Biri Singh Sinsinwar, the learned senior counsel appearing for the accused-appellant, duly assisted by Mr. Rajesh Choudhary, Advocate, has submitted that on the person of deceased, there were eight injuries, which were caused by three different weapons. Thus, the appellant alone is not responsible and, in fact, the appellant has not caused any injuries to the deceased and he has been falsely implicated.

Before us, it is contended by the learned senior counsel that the prosecution has failed to prove as to how injuries were caused by three different weapons. It is further contended by the learned senior counsel that the Investigating Agency has not believed the version given by the eye-witnesses, namely Sahodra (PW-5), Smt. Reshami (PW-6) and Smt. Kamla @ Parmali (PW-7) and have not sent Subhash (PW-2) and his mother Laxmi (mother-in-law of deceased) for trial.

It is argued by the learned senior counsel that the deceased was a lady of easy virtue and, therefore, we should infer that on the day of occurrence, the appellant has acted due to grave and sudden provocation, as he may have seen deceased in a compromising position. It is further argued by the learned senior counsel that Mukesh with whom deceased was allegedly having illicit relation, had also jumped into the Well and his dead-body was found after eight days. Last argument, raised has no legs to stand. Nothing has been proved on record regarding grave and sudden provocation.

Be that as it may, the dead-body of deceased Smt. Sushila was found inside the house in possession of the appellant. Shayar (PW-3), the son of deceased, aged nine-years and Parwati (PW-4), the daughter of deceased, aged fourteen-years, were locked in a room and were rescued by the Police. The said witnesses are not tutored. Their testimonies examined by the prosecution as have been rightly upheld by the trial Court as they aspire confidence. They have narrated the incident and have levelled specific allegation against their father. The deposition of Shayar (PW-3) and Parwati (PW-4) have also duly corroborated from the testimony of Sahodra (PW-5), Smt. Reshami (PW-6) and Smt. Kamla @ Parmali (PW-7).

Furthermore, Ramavtar (PW-9), being Police Official has given corroboration to the testimony of two child witnesses. He stated that when he reached at the house, both the children were locked in the adjoining room. He had rescued them. Immediately, both the children had told that their father had caused injuries to their mother. The presence of the children in the house, in which the parents are residing, is natural and probable. They are expected to be present in the house, rather they have been found in the house of Ramavtar (PW-9).

In the present case, the dead-body of the wife has been found in the house, husband was also seen by the witnesses in the house, along with the wife. It is duty of the husband to explain as to how the wife has died in the house when she was staying with the husband.

In the present case, the appellant has furnished no explanation as to how his wife Sushila has died in the house in his possession.

Recently, the Hon''ble Supreme Court in the case of State of Rajasthan Vs. Thakur Singh, (2014) AIRSCW 4479 : (2014) 8 JT 50 : (2014) 8 SCALE 82 , had observed as under :--

"Discussion and conclusion

Questioning the decision of the High Court acquitting Thakur Singh, the State of Rajasthan has preferred this appeal.

We find that the High Court has not at all considered the provisions of Section 106 of the Evidence Act, 1872.1 This section provides, inter alia, that when any fact is especially within the knowledge of any person the burden of proving that fact is upon him.

Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

Illustrations

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.

Way back in Shambhu Nath Mehra v. State of Ajmer this Court dealt with the interpretation of Section 106 of the Evidence Act and held that the section is not intended to shift the burden of proof (in respect of a crime) on the accused but to take care of a situation where a fact is known only to the accused and it is well nigh impossible or extremely difficult for the prosecution to prove that fact. It was said:

"This [Section 101] lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not."

In a specific instance in Trimukh Maroti Kirkan v. State of Maharashtra this Court held that when the wife is injured in the dwelling home where the husband ordinarily resides, and the husband offers no explanation for the injuries to his wife, then the circumstances would indicate that the husband is responsible for the injuries. It was said:

"Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."

Reliance was placed by this Court on Ganeshlal v. State of Maharashtra 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 this Court observed that since the deceased was murdered in her matrimonial home and the appellant had not set up a case that the offence was committed by somebody else or that there was a possibility of an outsider committing the offence, it was for the husband to explain the grounds for the unnatural death of his wife.

In Jagdish v. State of Madhya Pradesh this Court observed as follows:

"It bears repetition that the appellant and the deceased family members were the only occupants of the room and it was therefore incumbent on the appellant to have tendered some explanation in order to avoid any suspicion as to his guilt."

More recently, in Gian Chand v. State of Haryana a large number of decisions of this Court were referred to and the interpretation given to Section 106 of the Evidence Act in Shambhu Nath Mehra was reiterated. One of the decisions cited in Gian Chand is that of State of West Bengal v. Mir Mohammad Omar which gives a rather telling example explaining the principle behind Section 106 of the Evidence Act in the following words:

"During arguments we put a question to learned Senior Counsel for the respondents based on a hypothetical illustration. If a boy is kidnapped from the lawful custody of his guardian in the sight of his people and the kidnappers disappeared with the prey, what would be the normal inference if the mangled dead body of the boy is recovered within a couple of hours from elsewhere. The query was made whether upon proof of the above facts an inference could be drawn that the kidnappers would have killed the boy. Learned Senior Counsel finally conceded that in such a case the inference is reasonably certain that the boy was killed by the kidnappers unless they explain otherwise."

The law, therefore, is quite well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts.

Applying this principle to the facts of the case, since Dhapu Kunwar died an unnatural death in the room occupied by her and Thakur Singh, the cause of the unnatural death was known to Thakur Singh. There is no evidence that anybody else had entered their room or could have entered their room. Thakur Singh did not set up any case that he was not in their room or not in the vicinity of their room while the incident occurred nor did he set up any case that some other person entered the room and caused the unnatural death of his wife. The facts relevant to the cause of Dhapu Kunwar''s death being known only to Thakur Singh, yet he chose not to disclose them or to explain them. The principle laid down in Section 106 of the Evidence Act is clearly applicable to the facts of the case and there is, therefore, a very strong presumption that Dhapu Kunwar was murdered by Thakur Singh.

It is not that Thakur Singh was obliged to prove his innocence or prove that he had not committed any offence. All that was required of Thakur Singh was to explain the unusual situation, namely, of the unnatural death of his wife in their room, but he made no attempt to do."

The similar view was also formulated by the Hon''ble Supreme Court in the case of State of Rajasthan Vs. Kashi Ram, AIR 2007 SC 144 : (2006) 10 JT 28 : (2006) 11 SCALE 440 : (2006) 12 SCC 254 : (2006) 9 SCR 501 Supp , and His Lordship has observed as under :--

"17. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated In Re: Naina Mohamed, (1960) CriLJ 620 : (1960) ILR (Mad) 157 : (1960) 73 LW 210 : (1960) 1 MLJ 118 .

There is considerable force in the argument of counsel for the State that in the facts of this case as well it should be held that the respondent having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since, the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Evidence Act. This circumstance, therefore, provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt."

Thus, taking into consideration Section 106 of the Indian Evidence Act, along evidence of Sahodra (PW-5), Smt. Reshami (PW-6) and Smt. Kamla @ Parmali (PW-7) and eyewitnesses, Shayar (PW-3) and Parwati (PW-4), who have been duly corroborated by the medical evidence and testimony of three ladies and Ramavatar (PW-9), we find no merit in the arguments raised by the learned senior counsel appearing for the accused-appellant.

We reject all the arguments advanced by the learned senior counsel and uphold the finding of conviction returned by the trial Court and affirm the sentence awarded upon the appellant.

Consequently, the present appeal, being devoid of merit, is, hereby, dismissed.