Respectively by which the High Court dismissed both the appeals and thereby affirmed the judgment and order of conviction passed by the Additional District and Sessions Judge Kotdwar, Garhwal in the Sessions Trial No. 48 of 2008 holding Balvir Singh (husband) guilty of the offence of murder punishable under Section 302 of the Indian Penal Code, 1860, (for short, ‘the IPC’) alongwith the offence punishable under Section 498A of the IPC and Maheshwari Devi (mother-in-law) guilty of the offence punishable under Section 498A of the IPC read with Section 34 of the IPC. (Para 2)
That on 13.05.07 at about 1.30 o’clock in the night my younger brother Harender Singh received information from Delhi over phone that my daughter Sudha has left for her heavenly abode all of a sudden in Mangolpuri. (Para 4(5))
That her mother-in law and her husband Balvir Singh caused inhuman harassment to my daughter which amounts to a heinous crime. Photocopies of her letters are being annexed herewith. I had lodged report at Police Station and Deputy District Magistrate also that she has been killed, but no first information report has not been registered till now. Therefore, it is prayed to please order police of Police Station Kotdwar to register First Information Report and get the offenders punished for the offence committed by them. (Para 4(6))
Upon conclusion of the oral evidence, the further statement of both the appellants was recorded by the trial court. Two specific questions were put by the trial court to the convict Balvir Singh and the reply to the two questions were as under:
“Question No. 14:- Do you have anything else to say?
Answer:- I am innocent.
Complainant has lodged a false case.
Question No. 15 :- Poison has been found in the examination of viscera of the deceased. What do you have to say in this regard?
Answer:- I do not have knowledge as to how the poison has been found, but the deceased was a heart patient and used to consume medicines.” (Para 10)
The appellants 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 both the appeals and thereby affirmed the judgment and order of the conviction passed by the trial court. (Para 14)
It was argued that the entire case hinges on circumstantial evidence. It is a primary principle that the accused must be and not merely may be guilty. (Para 18)
The learned counsel appearing for the State submitted that in view of Section 106 of the Indian Evidence Act, 1872 (for short, ‘the Evidence Act’ or ‘the Act 1872’), it is for the convicthusband to explain as to what had actually transpired. It is the convict-husband who could be said to be in special knowledge of things that might have transpired at the relevant point of time. (24)
It was argued that the presence of poison in the viscera would indicate that the same had been administered to the deceased in some manner and no one except the husband could have administered the poison. It was also argued that there was a strong motive for the husband to commit the crime. The husband has also been held guilty of causing lot of harassment to his wife and the same is evident from the two letters written by the deceased to her father and are exhibited in the evidence. (Para 25)
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. (36(22))
It is evident that the court should apply Section 106 of the Evidence Act in criminal cases with care and caution. It cannot be said that it has no application to criminal cases. The ordinary rule which applies to criminal trials in this country that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the provisions contained in Section 106 of the Evidence Act. (Para 41)
Section 106 cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. This section cannot be used to support a conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence. It does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifically within the knowledge of the accused and it does not throw the burden of the accused to show that no crime was committed. To infer the guilt of the accused from absence of reasonable explanation in a case where the other circumstances are not by themselves enough to call for his explanation is to relieve the prosecution of its legitimate burden. So, until a prima facie case is established by such evidence, the onus does not shift to the accused. (Para 42)
Section 106 obviously refers to cases where the guilt of the accused is established on the evidence produced by the prosecution unless the accused is able to prove some other facts especially within his knowledge which would render the evidence of the prosecution nugatory. If in such a situation, the accused gives an explanation which may be reasonably true in the proved circumstances, the accused gets the benefit of reasonable doubt though he may not be able to prove beyond reasonable doubt the truth of the explanation. But if the accused in such a case does not give any explanation at all or gives a false or unacceptable explanation, this by itself is a circumstance which may well turn the scale against him. (Para 43)
What lies at the bottom of the various rules shifting the evidential burden or burden of introducing evidence in proof of one’s case as opposed to the persuasive burden or burden of proof, i.e., of proving all the issues remaining with the prosecution and which never shift is the idea that it is impossible for the prosecution to give wholly convincing evidence on certain issues from its own hand and it is therefore for the accused to give evidence on them if he wishes to escape. Positive facts must always be proved by the prosecution. But the same rule cannot always apply to negative facts. (Para 44)
But Section 106 has no application to cases where the fact in question having regard to its nature is such as to be capable of being known not only by the accused but also by others if they happened to be present when it took place. From the illustrations appended to the section, it is clear that an intention not apparent from the character and circumstances of the act must be established as especially within the knowledge of the person whose act is in question and the fact that a person found travelling without a ticket was possessed of a ticket at a stage prior in point of time to his being found without one, must be especially within the knowledge of the traveller himself : see Section 106 of the Indian Evidence Act, illustrations (a) and (b). (Para 45)
When facts are peculiarly within the knowledge of the accused, the burden is on him to present evidence of such facts, whether the proposition is an affirmative or negative one. He is not required to do so even though a prima facie case has been established, for the court must still find that he is guilty beyond a reasonable doubt before it can convict. However, the accused’s failure to present evidence on his behalf may be regarded by the court as confirming the conclusion indicated by the evidence presented by the prosecution or as confirming presumptions which might have been rebutted. Although not legally required to produce evidence on his own behalf, the accused may therefore as a practical matter find it essential to go forward with proof. This does not alter the burden of proof resting upon the prosecution (Para 46)
Section 106 of the Evidence Act would apply to cases where the prosecution could be said to have succeeded in proving facts from which a reasonable inference can be drawn regarding death. (Para 48)
The 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. (Para 49)
In the case on hand it has been established or rather proved to the satisfaction of the court that the deceased was in company of her husband i.e., the appellant-convict at a point of time when something went wrong with her health and therefore, in such circumstances the appellant-convict alone knew what happened to her until she was with him. (Para 52)
We consider the true rule to be that Section 106 does not cast any burden upon an accused in a criminal trial, but that, where the accused throws no light at all upon the facts which ought to be especially within his knowledge, and which could support any theory of hypothesis compatible with his innocence, the Court can also consider his failure to adduce any explanation, in consonance with the principle of the passage in Deonandan Mishra (supra), which we have already set forth. The matter has been put in this form, with reference to Section 106 of the Evidence Act, in Smith v. R. reported in 1918 A.I.R. Mad. 111, namely, that if the accused is in a position to explain the only alternative theory to his guilt, the absence of explanation could be taken into account. In the present case, taking the proved facts together, we are unable even to speculate about any alternative theory which is compatible with the innocence of the accused. (Para 56)
We are of the view that the circumstances narrated by us in para 28 of this judgment constitute more than a prima facie case to enable the prosecution to invoke Section 106 of the Evidence Act and shift the burden on the accused husband to explain what had actually happened on the date his wife died. (Para 61)
The role of courts in such circumstances assumes greater importance and it is expected that the courts would deal with such cases in a more realistic manner and not allow the criminals to escape on account of procedural technicalities, perfunctory investigation or insignificant lacunas in the evidence as otherwise the criminals would receive encouragement and the victims of crime would be totally discouraged by the crime going unpunished. The courts are expected to be sensitive in cases involving crime against women. (Para 62)
However, as Maheshwari Devi (mother-in-law) appellant of Criminal Appeal No. 2430 of 2014 has been convicted only for the offence punishable under Section 498A of the IPC, we reduce her sentence to the period already undergone. Even otherwise, she is on bail. Maheshwari Devi need not now surrender. (Para 64)
SUPREME COURT OF INDIA
2023 STPL(Web) 314 SC
[2023 INSC 879]
STATE OF UTTARAKHAND
Criminal Appeal No. 301 of 2015 With Criminal Appeal No. 2430 Of 2014-Decided on 6-10-2023
https://stpllaw.in/wp-content/uploads/2023/10/2023-STPLWeb-314-SC.pdf
