Summary of Judgement

The Judgement

J. B. Pardiwala, J.:

For the convenience of exposition, this judgment is divided in the following parts:-

INDEX

1. This appeal is at the instance of a convict accused for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, "the IPC") and is directed against the judgment and order dated 23.05.2014 passed by the High Court of Delhi in Criminal Appeal No. 320 of 1998 filed by the appellant herein by which the High Court dismissed the appeal and thereby affirmed the judgment and order of conviction passed by the Additional Sessions Judge, Karkardooma Court, Delhi in Sessions Case No. 176 of 1996 holding the appellant guilty of the offence of murder punishable under Section 302 of the IPC and sentencing him to undergo life imprisonment with a fine of Rs. 5,000/-. In the event of default in the payment of the fine, the appellant was directed to undergo further rigorous imprisonment for six months.

A. CASE OF THE PROSECUTION

2. The deceased, namely, Saira was married to the appellant. The marriage of the deceased with the appellant was solemnised in 1982 in accordance with the Muslim rites and customs. In the wedlock, a daughter named Shaheena was born, who, at the time of the incident in 1995, was five years of age.

3. On 29.12.1995, at about 4:00 am, a wireless operator of the Delhi Police informed one lady constable who was on duty in a PCR that a woman had been stabbed in House No. 220, Gali No. 3, Mustafabad and that a responsible police officer may be asked to reach at the spot of occurrence. The said information was conveyed by the lady constable to the duty officer at P.S. Gokulpuri, who, in turn, reduced the same in writing and forwarded a copy thereof to S.I. Mohkam Singh for inquiry.

4. When S.I. Mohkam Singh, along with the SHO of the concerned Police Station, reached the place of occurrence, he found the deceased lying in a pool of blood, having suffered multiple deep stabbed wounds in the abdomen and other parts of the body. The appellant herein was also present at the place of occurrence. It was noticed that the appellant had also suffered a few superficial injuries. Both, the deceased and the appellant, were sent to the hospital where the deceased was declared as brought dead and the appellant was declared fit for the purpose of interrogation and was discharged after some preliminary treatment.

5. The investigation revealed that the marital relationship of the appellant with the deceased was strained on account of the deceased leaving the house all of a sudden without the permission of the appellant and thereafter returning late in the night hours. This was not liked by the appellant. On several occasions, altercations used to take place between the appellant and the deceased on such issues.

It is the case of the prosecution that on the fateful night of the incident, an altercation took place between the appellant and the deceased, as a result, the appellant is alleged to have inflicted stab injuries indiscriminately with a knife all over the body of the deceased. It is also the case of the prosecution that the minor daughter Shaheena was the sole eyewitness to the incident.

6. In such circumstances referred to above, a rukka was prepared by the Investigating Officer and sent to the concerned Police Station based upon which the First Information Report No. 728 of 1995 was registered against the appellant for the offence punishable under Section 302 of the IPC.

7. The contents of the FIR are reproduced herein below:

"FIRST INFORMATION REPORT
First Information of a Cognisable Crime Reported under Section 154 Cr.PC.

FIR NO. 728/95

Date and hour of occurrence

Through wireless information was received that in Gali No.2 in House No. 222 near illegible factory knife blow has been given and some one be sent to the place of occurrence. On receiving the information, Constable Belt No.1 and SI Karam Singh left the police station in government vehicle and constable illegible on the spot House no. 220 Gali No. 3 Old Mustaffa Bad. Over there the dead body of the deceased Saira was found on whose neck and stomach there were deep injuries and blood was pouring out over there, Aneesh husband of Saira was also present on the spot illegible.

From there, we took them in government vehicle PR from the spot by constable available 1258 in government vehicle to GTB Hospital and ML No. illegible was prepared in which Saira was mentioned in writing illegible. On relatives coming, statements were recorded on the basis of illegible offence under Section 302/324 IPC was registered on diary at No.1175.

Information may be noted in the rojnaamcha and myself illegible with crime team along with photographer proceeded of the occurrence and prepared report. On 29.12.95 at about 4 p.m. went to the House no. 220 Gali No. 3 Old Mustaffa Bad and the writing was made on 29.12.95 illegible signed of local SI PS Gokulpuri 27.12.95 police proceeding at this time on receipt of these writing in Hindi the case regarding the office by constable Gayasudeen No.11751. Case has been registered in the register."

8. In the course of the investigation, the Investigating Officer recorded the statement of Shaheena, the five-year old daughter of the deceased. Shaheena in her police statement stated that upon hearing the cries and shouts in the night hours, she woke up and witnessed her father, i.e., the appellant herein inflicting knife injuries on the body of her mother, i.e., the deceased.

9. The post-mortem of the dead body of the deceased was performed at the G.T.B. Hospital, Shahdara, Delhi. In the post-mortem report, the following injuries came to be noted:

"1. Incised wound 4 cm x 1.04 cm present over outer aspect of wound of left thumb.

2. Incised wound 2 cm x 0.8 cm x 0.7 cm present over palmar aspect of proximal phalanx of left thumb.

3. Incised wound 1 cm x 0.3 cm 0.3 cm present over dorsal aspect of middle phalanx of left ring finger.

4. Linear scratch 2 cm x 0.1 present over front of left arm, 4 cm above elbow joint.

5. Incised wound 6 cm x 1 cm x 0.6 cm present over front and inner aspect of left knee joint.

6. Incised wound 5 cm x 1 cm x 2 cm present over outer aspect of right thigh placed 7 cm above the knee joint.

7. Incised wound 1.3 cm x 0.1 x 0.5 cm present over palmer aspect of terminal phalanx of right middle finger.

8. Incised wound 2 cm x 0.3 x 0.5 cm present over palmar aspect of phalanx of right ring finger cutting the underlined wound.

9. Liner scratch 4 cm x 0.2 cm present over outer aspect of top of right shoulder.

10. Incised stab wound 4 cm x 0.5 cm present over front of abdomen in midline 2.5 cm below the xphoid process. It is obliquely placed clean cut margin and one angle of the wound being more acute than the other on dissection. The track of the wound is going laterally, upwards and posteriorly, cutting the left lobe of liver cutting the pericardia sec. and dominated on cutting an entry the right auricle of heart. Haemorrhages and extravasation of blood presentation with the track of wound. Depth of wound is 9 cm.

11. Incised stab wound present obliquely in midline over front of abdomen with interesting protruding out of the wound. It measures 4.5 x 0.2 cm and is placed 5 cm above the umbilicus. It has clean cut margin and one angle of the wound is more acute than the other. On dissection, the track of the wound is going up posteriorly and laterally and dominated by cutting the mesenteric blood vessels. Haemorrhage present in the mesentery depth of wound is 8 cm.

12. Incised cut through wound of neck measuring 10 cm x 2 cm into 4 cm present horizontally above the thyroid cartilage. Upper margin of the wound is placed 55 cm below chin and lower margin is 6 cm above the sterna notch. All soft tissues of the neck, measure blood vessel trachea and oesophagus have been cut through into till the vertebral column. Haemorrhage and extra vacation or blood present in the soft tissues of the wound.

13. Red abrasion 2.5 cm x 0.3 cm present in midline over front of neck 1.5 cm below chin.

14. Red abrasion 2 cm. x 0.3 cm over left side of face 1.5 cm below the left eye."

10. The weapon of offence, i.e., the knife was also discovered at the instance of the appellant herein by drawing a panchnama under the provisions of Section 27 of the Indian Evidence Act, 1872 (for short, 'the Evidence Act'). The blood-stained clothes of the deceased as well as those of the appellant herein were collected and sent to the Forensic Science Laboratory for chemical analysis. The statements of various other witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short, the "Cr.P.C.").

11. Upon completion of the investigation, the Investigating Officer filed a chargesheet for the offence punishable under Section 302 of the IPC in the Court of Metropolitan Magistrate, Karkardooma Courts, Delhi, who, in turn, committed the case to the Court of Sessions Judge, Karkardooma Courts, which culminated in the Sessions Case No. 176 of 1996.

12. The appellant pleaded not guilty to the charge framed by the Sessions Court and claimed to be tried.

13. The prosecution examined 17 witnesses in support of the charge. Shaheena (PW-3), was examined as the sole eye-witness to the incident. Shakeel Ahmad (PW-4), the brother of the deceased, and Rafiq (PW-11), the father of the deceased, were examined to establish the demand of dowry by the appellant from the deceased, and the harassment caused by him towards his deceased wife. Dr. Sayed Ali (PW-9), the neighbour of the appellant, was examined as a panch witness to prove the contents of the discovery panchnama of the knife used in the commission of the crime.

14. It is the case of the prosecution that the knife was discovered from a drain outside the house of the appellant, as pointed out by him, in the presence of the Investigating Officer and the panch witnesses.

15. The prosecution also examined the following official witnesses:

a. Constable Munni Khan, who was on duty at the PCR at the time of the incident (PW-5)

b. Constable Govind Singh, duty officer at the Gokulpuri P.S. at the time of the incident (PW-8)

c. Constable Giasuddin, witness to the discovery of the knife (PW- 16)

d. S.I. Mohkam Singh, Investigating Officer of the case (PW-17)

16. It is pertinent to note that Shaheena (PW-3), the sole eye-witness to the incident, failed to support the case of the prosecution and was declared a hostile witness. She deposed before the trial court that upon hearing the noise and shrieks of her parents, she woke up in the night hours and saw that thieves had entered into their house and were assaulting her parents.

She deposed that the thieves had a knife and they inflicted knife injuries on both her parents. She, however, admitted that she saw her mother lying on the floor bleeding profusely. However, she denied that it was the appellant who had inflicted injuries upon the deceased with a knife. She also denied that the relations of her parents were strained.

17. Dr. Sayed Ali, PW-9, the panch witness to the discovery panchnama also did not support the case of the prosecution and was declared as a hostile witness.

18. Dr. Anil Kohli, PW-1, who conducted the post-mortem on the dead body of the deceased, deposed that all the injuries were ante-mortem in nature and were sufficient in the ordinary course of nature to cause death, and more particularly the injuries no. 1-12 respectively were possible by a dagger/knife.

19. Upon conclusion of the oral evidence, the further statement of the appellant was recorded by the trial court. In his statement recorded under Section 313 of the Cr.P.C., the appellant stated as under:

"I along with my wife deceased and my daughter Shaheena was sleeping in my house. Two persons caused injuries to my wife. I tried to save her but I was also hurt by those persons. I do not know as to why those strangers caused injuries to my wife. I am innocent. After causing the injuries those persons fled away from there."

20. The trial court, upon appreciation of the oral as well as documentary evidence on the record, held the appellant guilty of the offence of murder punishable under Section 302 of the IPC and sentenced him to undergo imprisonment for life and pay a fine of Rs. 5,000/-. In the event of default in the payment of the fine, the trial court directed the appellant to undergo further rigorous imprisonment for six months.

21. The appellant, feeling dissatisfied with the judgment and order of conviction passed by the trial court, went in appeal before the High Court. The High Court dismissed the appeal and thereby affirmed the judgment and order of the conviction passed by the trial court. The High Court, while affirming the judgment and order of conviction passed by the trial court, held as under:

"10. PW-17's testimony that the appellant refused to make the statement as to the incident and on the other hand, his disclosure that he would make the statement later on, on arrival of his relatives speaks volume that the appellant wanted to invent some story by gaining time. Had two intruders actually caused injuries on the person of deceased Saira as has been subsequently propounded by the appellant, he would have immediately informed the police about the same so that the culprits are immediately caught and brought to book.

PW-17's testimony that the appellant wanted to make the statement later on only on arrival of his relatives was not challenged by the appellant in PW-17's cross examination. At this stage, it would be appropriate to advert to the explanation given by the appellant in reply to question No. 12 in his statement under Section 313 Cr.P.C. which is extracted as under:-

"Q.12 Have you anything else to say?

Ans. I along with my wife, deceased, and my daughter Siana was sleeping in my house. Two persons caused injuries to my wife. I tried to save her but I was also hurt by those persons. I do not know as to why those strangers caused injuries to my wife. I am innocent. After causing the injuries those persons fled away from there."

11. The explanation that two persons had caused injuries on the person of deceased Saira was admittedly not put to PW- 17 in his cross examination. Had there been any truth in the explanation propounded by the appellant, he would not have been content to simply state that the injuries were caused by two persons, he would have given the detailed description (as far as possible) of the assailants as also the motive as to why the deceased alone was targeted particularly, when robbery was not the motive of the injuries alleged to have been inflicted by the two unknown intruders. Intrusion into the house by unknown third persons would have resulted in tell tail and revelatory evidence. There is no indication or suggestion relating to the said evidence.

18. As stated earlier, it is proved by overwhelming evidence and is not even disputed by the appellant that deceased Saira was inflicted injuries inside the matrimonial home (of the appellant and the deceased). Initially, the appellant was completely silent as to how his deceased wife suffered injuries. He told the I.O. that he would make a statement later on only when his relations would arrive. As we have pointed out earlier, in cross-examination of the I.O. and even in his statement under Section 313 Cr.P.C., the appellant has not given the details of the intruders.

From the appellant's conduct in not disclosing to the I.O. as to how his deceased wife suffered fatal injuries, there was a lurking doubt even at that very time that it was only the appellant who was responsible for causing the injuries unless something material was really brought out by the appellant. Nothing prevented the appellant to have disclosed about the incident immediately when the police reached the spot that the injuries were inflicted on his deceased wife by two unknown intruders.

There was no indication or giveaway to show the presence of third parties who intentionally targeted the deceased. All these facts taken together, i.e. nondisclosure of the information about the incident to the police, not giving the details of the two intruders even in his statement under Section 313 Cr.P.C. etc. would really show that the explanation given by the appellant was false which would become an additional link in the chain of circumstantial evidence in view of Manu Sao v. State of Bihar, (2010) 12 SCC 310.

19. In Munna Kumar Upadhyay @ Munna Upadhyaya v. State of Andhra Pradesh, (2012) 6 SCC 174, it was reiterated that if the accused gave incorrect or false answers during the course of his statement under Section 313 Cr.P.C., the Court can draw an adverse inference against him. In para 76 of the report, the Supreme Court observed as under:-

"76. If the accused gave incorrect or false answers during the course of his statement under Section 313 Cr.P.C., the court can draw an adverse inference against him. In the present case, we are of the considered opinion that the accused has not only failed to explain his conduct, in the manner in which every person of normal prudence would be expected to explain but had even given incorrect and false answers. In the present case, the Court not only draws an adverse inference, but such conduct of the accused would also tilt the case in favour of the prosecution."

20. We are conscious of the fact that Shaheena (PW-3) the appellant's daughter has not supported the prosecution version that the appellant was the perpetrator of the crime. She, in fact, came out with the story which is in line with the explanation given by the appellant in his examination under Section 313 Cr.P.C. But at the same time, as stated above, no such explanation was given by the appellant to the I.O. when he reached the spot immediately on getting information of the incident. No such question was even put to the I.O. when he entered the witness box as PW-17.

The appellant did not choose himself to enter the witness box under Section 315 Cr.P.C. and subject himself for cross-examination in order to explain the peculiar circumstances in which his wife was murdered within his small house. What is more intriguing is why the intruders would keep their hands off in inflicting injuries on the appellant's person who as per his own showing tried to save his wife when she was being inflicted injuries by the two intruders.

Therefore, we totally reject the so-called explanation given for the first time by the appellant in his examination under Section 313 Cr.P.C. The fact that the deceased's murder was committed within the four corners of the small house in the appellant's presence and the fact that the appellant even failed to disclose to the I.O. as to how his deceased wife suffered injuries and the giving of a false explanation unerringly point to the guilt of the appellant. It is firmly and clearly established that it was the appellant and the appellant alone who was the perpetrator of the crime.

21. It is true that S.I. Mohkam Singh (PW-17) had admitted in his crossexamination that the appellant's daughter had disclosed even before sending the rukka to the Police Station that the appellant had committed the gruesome act and that this fact not been mentioned in the rukka does not in any way belies the prosecution version. Perhaps the I.O. thought that it would be inappropriate to record the statement of a child aged about five years for the purpose of registration of an FIR against her father and to first independently investigate and come to more solid evidence.

It may also be mentioned that during the investigation of this case, an application was moved by the appellant's father for getting the statement of Shaheena (PW-3) recorded under Section 164 Cr.P.C. which was not recorded by the learned Metropolitan Magistrate as the child was found to be tutored. It seems that the I.O. preferred not to be criticised for getting the case registered on the basis of statement of a child of tender age. And so he did not record Shaheena's (PW-3) statement in the rukka.

22. We are conscious of the fact that Shaheena (PW-3) has not supported the prosecution version that her father, the appellant had caused injuries on the person of her deceased mother. The same, however, is of no consequence as the child was of tender years and as observed by the Trial Court was tutored by the appellant's father. The appellant, however, cannot make any advantage if PW-3 did not support the prosecution version.

23. We are not going to attach much importance to the alleged harassment and the demand of dowry by the appellant because of the contradictions and the discrepancies in the statements of PWs 4 and 11. Otherwise also, this is not a case under Section 306/304-B IPC and thus, the alleged harassment was of no consequence and could at best have provided some motive for commission of the crime.

24. In view of the foregoing discussion, we are of the view that the appeal is devoid of any merit; the same is accordingly dismissed. The judgment and order on sentence passed by the Trial Court are affirmed.

25. The appeal stands disposed of in above terms."

22. In such circumstances referred to above, the appellant is here before this Court with the present appeal.

B. SUBMISSIONS ON BEHALF OF THE APPELLANT

23. Mr. Rishi Malhotra, the learned counsel appearing for the appellant, submitted that the entire case of the prosecution rests on circumstantial evidence and thus all the circumstances from which the conclusion of guilt is to be drawn should be carefully established by the prosecution and the facts so established should be consistent only with the hypothesis of the guilt of the accused and inconsistent with the innocence of the accused.

The counsel placed reliance on the decision of this Court in Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116 to fortify his submission that the prosecution could be said to have failed to prove its case beyond reasonable doubt and could not have taken recourse to Section 106 of the Evidence Act in the absence of any foundational facts being laid for the same.

24. He further submitted that the sole eye-witness, Shaheena (PW-3), did not support the case of the prosecution and her oral evidence rather fortified the defence taken by the accused that some strangers entered the house in the night hours and caused injuries to the appellant and the deceased.

25. He submitted that Sayed Ali (PW-9), the panch witness examined by the prosecution to prove the discovery of the knife, also turned hostile and failed to prove the contents of the discovery panchnama.

26. One another submission canvassed was that the S.I. Mohkam Singh (PW-17), in his testimony before the trial court, admitted that he had questioned Shaheena (PW-3) before forwarding the written report/rukka to the police station. However, the said fact is missing in the written report/rukka prepared after completing the inquiry. This according to the learned counsel indicates that the testimony of S.I. Mohkam Singh (PW-17) is unworthy of reliance.

27. He submitted that the sole basis to convict the appellant was that the explanation offered by him was not sufficient to save him from the adverse inference drawn against him under Section 106 of the Evidence Act. However, the High Court failed to appreciate that the prosecution has to stand on its own legs and prove its case beyond reasonable doubt. Prosecution cannot throw the entire burden on the accused to prove his innocence.

28. He submitted that the courts below ought to have taken into consideration the conduct of the appellant at the time of the alleged incident. Had the appellant been the assailant, he would not have stayed back at the place of occurrence, but would have rather ran away after committing the alleged crime.

29. He also submitted that the prosecution could not establish any motive on the part of the appellant to commit the alleged crime. Both the trial court and the High Court proceeded on the assumption that as the deceased might have arrived at home late in the night, the same perhaps could have led to an altercation between the two leading to the incident. However, no witness has been examined in this regard.

30. In the last, the learned counsel submitted that even if the entire case of the prosecution is believed or accepted to be true, still the case would fall within the Exception 4 to Section 300 of the IPC. In other words, the submission is that the alleged crime could be said to have been committed without pre-meditation in a sudden fight upon a sudden quarrel.

C. SUBMISSIONS ON BEHALF OF THE STATE

31. Mr. Apoorv Kurup, the learned counsel appearing for the State submitted that no error, not to speak of any error of law, could be said to have been committed by the High Court in dismissing the appeal filed by the appellant and thereby affirming the judgment and order of conviction passed by the trial court.

32. He submitted that the following incriminating circumstances, in the form of foundational facts, were rightly taken into consideration by both the courts below for the purpose of invoking Section 106 of the Evidence Act.

a. The incident occurred inside the house in which the appellant and the deceased resided. The deceased was found lying practically dead in a pool of blood.

b. The appellant was present at the place of the incident till the time the Investigating Officer reached the house of the appellant upon receiving the information from the PW-8.

c. The appellant failed to disclose before the Investigating Officer at the earliest point of time that two unidentified individuals entered the house and laid an assault.

d. The explanation, or rather the defence, put forward by the appellant that two unidentified individuals entered the house and inflicted injuries on the deceased is falsified by the other circumstances on record.

e. False explanation offered by the accused in his further statement recorded under Section 313 of the Cr.P.C. is an additional incriminating circumstance.

f. The clothes worn by the appellant at the time of the incident had blood stains matching with the blood group of the deceased, i.e., 'AB' positive.

g. Although the prosecution might not have been able to establish the discovery of the weapon at the instance of the appellant in accordance with Section 27 of the Evidence Act, yet the fact that the appellant made a statement before the Investigating Officer in this regard and led the Investigating Officer along with the panch witnesses to a nearby drain from where the knife is said to have been discovered, would reflect on his conduct, which is a relevant fact under Section 8 of the Evidence Act.

33. In such circumstances referred to above, the learned counsel appearing for the State submitted that there being no merit in the appeal the same may be dismissed.

D. ANALYSIS

34. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the High Court committed any error in passing the impugned judgment and order.

i. Principles of law governing the applicability of Section 106 of the Evidence Act

35. Section 106 of the Evidence Act reads as follows:

"106. 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.

Illustration

(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."

36. Section 106 of the Evidence Act referred to above provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The word "especially" means facts that are pre-eminently or exceptionally within the knowledge of the accused. The ordinary rule that applies to the criminal trials that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the rule of facts embodied in Section 106 of the Evidence Act.

Section 106 of the Evidence Act is an exception to Section 101 of the Evidence Act. Section 101 with its illustration (a) 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 the facts which are, "especially within the knowledge of the accused and which, he can prove without difficulty or inconvenience".

37. In Shambhu Nath Mehra v. The State of Ajmer, AIR 1956 SC 404, this Court while considering the word "especially" employed in Section 106 of the Evidence Act speaking through Vivian Bose, J., observed as under:

"11. 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.

It is evident that that cannot be the intention & the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R. 1936-3 All ER 36 AT P. 49 (B)."

38. The aforesaid decision of Shambhu Nath (supra) has been referred to and relied upon in Nagendra Sah v. State of Bihar, (2021) 10 SCC 725, wherein this Court observed as under:

"22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference.

23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused."

(Emphasis supplied)

39. In Tulshiram Sahadu Suryawanshi and Anr. v. State of Maharashtra, (2012) 10 SCC 373, this Court observed as under:

"23. It is settled law that presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilised.

We make it clear that this section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. It is useful to quote the following observation in State of W.B. v. Mir Mohammad Omar and Ors. [(2000) 8 SCC 382 : 2000 SCC (Cri) 1516] : (SCC p. 393, para 38)

"38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. In Shambhu Nath Mehra v. The State of Ajmer [AIR 1956 SC 404 : 1956 Cri LJ 794] the learned Judge has stated the legal principle thus:

'11. This 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.'""

(Emphasis supplied)

40. In Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681, this Court was considering a similar case of homicidal death in the confines of the house. The following observations made therein are considered relevant in the facts of the present case:

"14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished.

A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions [1944 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."

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.

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

(Emphasis supplied)

41. The question of burden of proof, where some facts are within the personal knowledge of the accused, was examined by this Court in the case of State of W.B. v. Mir Mohammad Omar and Ors., (2000) 8 SCC 382. In this case, the assailants forcibly dragged the deceased from the house where he was taking shelter on account of the fear of the accused, and took him away at about 2:30 in the night. The next day in the morning, his mangled body was found lying in the hospital.

The trial court convicted the accused under Section 364, read with Section 34 of the IPC, and sentenced them to ten years rigorous imprisonment. The accused preferred an appeal against their conviction before the High Court and the State also filed an appeal challenging the acquittal of the accused for the charge of murder. The accused had not given any explanation as to what happened to the deceased after he was abducted by them.

The Sessions Judge, after referring to the law on circumstantial evidence, had observed that there was a missing link in the chain of evidence after the deceased was last seen together with the accused persons, and the discovery of the dead body in the hospital, and concluded that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt. This Court took note of the provisions of Section 106 of the Evidence Act, and laid down the following principles in paras 31 to 34:

"31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a recognized doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.

32. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognized by the law for the court to rely on in conditions such as this.

33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.

34. When it is proved to the satisfaction of the Court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the Court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the Court what else happened to Mahesh at least until he was in their custody."

(Emphasis supplied)

42. Applying the aforesaid principles, this Court while maintaining the conviction under Section 364 read with Section 34 of the IPC, reversed the order of acquittal under Section 302 read with Section 34 of the IPC, and convicted the accused under the said provision and sente